Page:Federal Reporter, 1st Series, Volume 9.djvu/414

 SELDEN V. STOCKWBLL SELF-LIGHTISa GAS-BUBNER 00. 399 �The defendant also sets up againist those claims English patent No. 444, to Gabriel Benda, dated Ootober 19, 1852,— provisional speci- fication filed that day; sealed April 16, 1853; full specification filed April 19, 1863,— for "improvements in apparatusforobtainingfijre foi smokers." The record shows that the attention of the patent-office was directed to the Benda patent in granting No. 8,490, and that the claims were amended in view of that patent. No expert witness for the defendant asserts that Benda is an anticipation. The Benda patent shows a case with a coil or strip of ignitable compound within it, so arranged as to be fed from the case by a feed-wheel, and when fed beyond the case it is ignited by bending it over and scraping it with the loose cover.wMch serves, when the apparatus is not in use, to close the opening through whioh the strip is fed. There is not in it any nose-piece projected beyond the passage for the match, and serving to uphold the match against the action of the igniting device,: There is not any igniting device arranged parallel, or nearly so, with the passage through which the match goes to be ignited. There is no permanently attached igniter, acting in coiijunction with such a nose-piece. Benda had a repeating match, and a toothed-wheel match-feeder, feeding the match through a nose-piece to the point of ignition, and something on which the match rested while being ignited by friction produced by hand through an igniting device ; but the mechanisms of the two structures are different, and their parts do not co-operate in the same way to attain the, resuit of an ignited match. �11. It is claimed that the defendant's apparatus infringes the first five claims of No. 8,490. The plaintifif's structure operates by the friction of the igniter made to move crosswise by the hand against the match. In the defendant's the feeding of the match raises a spring-hammer, which, when the pellet on the match is at the proper point, is released, and ignites the pellet by percussion. But the defendant's structure contains, nevertheless, all the elements which constitute the flrst five claims of No. 8,490. The differences between the two structures are formai and unsubstantial, in view of the state of the art and of the real invention of the patentees and of the claims of No. 8,490. No expert witness for the defendant testifies as to non- infringement. Theremay be features of improvement in the defend- ant's structure, but still it is aii infringement. The same structure is alleged to infringe claims 1 and 2 of letters patent No. 206,835, granted Augast 6, 1878, to said Selden, for an "improvement in cigar lighters." The device described in that patent bas a case ��� �