Page:Federal Reporter, 1st Series, Volume 9.djvu/319

 30e FEDERAL REPORTBB. �Al US and others ». Stowell, Survivor, etc. �(Circuit Court, E. D. Wiaconain. July 26, 1881.) �1. Lettbbs Patent — Saw-Mill Dogs — Anticipation. �Selden's device, known as a saw-mill dog, held to have been anticipatcd, and therefore to be invalid. �In Equity. �W. G. Bainey, for complainants. �Flanders d Bottum, for defendant. �Dyer, D. J., (orally.) There was, some time since, heard and de- cided in this court the case of Allie v. Stowell, involving the validity of certain patents, one of which was issued to one Selden, and the other to one Beckwith, upon certain devices known as saw-mill dogs. Both patents were sustained, and injunctions were granted. Subsequently, an application was made to reopen the case as to both patents, and af ter hearing, and investigation of the questions involved, a rehear- ing was granted as to the Selden patent, but not as to the Beckwith patent. The case bas now been argued before the full bench upon testimony that has been submitted with reference to the validity of the Selden patent, and as to whether it was not anticipated by the devices that are claimed to have been made and sold as early as 1845, and subsequently by one Page, at Washington, and one Duval, at Zanesville, Ohio. Testimony upon the rehearing, and touching the validity of the Selden patent, has been fully taken, and we have to pass upon the case in the light of the new f acts that have been developed. There has been produced what is known as the Duval device. Certainly, the similarity between this device, which antici- pated by many years the Selden, and the Selden dog, is quite strik- ing, as is apparent upon mere inspection. �A change of the original decree is resisted by the complainants, substantially upon two grounds; the first being that the principal witness for the defendant stands in such an attitude, and occupies such a relation to the defendant, as requires the court to entirely dis- regard bis testimony. The other is that there is such a defect apparent in the construction of the Duval device as must satisfy the court that it could not be made an operative machine. Of course the rule is familiar, that where it is claimed that a patented device is anticipated by another, and that there has been a prior use, it is necessary to show, not, perhaps, that the anticipating device has been actually used, but certainly that it was capable of practical and sue» ��� �