Page:Federal Reporter, 1st Series, Volume 9.djvu/467

 452 FEDERAL REPORTER. �claims now in question were sustained under the facts in that case, and it was again before the same court, Judge Lowell, presiding, in December, 1879, in the case of Edgarton v. Beck, and the fourth claim sustained under the facts in that case. In the first of these cases the court said: �"ihe record does not contain a copy of the original patent, and tiiere is no evidence of what changes, if any, are found in the reissue. In the absence of such evidence we must, of course, assume that the action of the patent-offlee was well warranted by the facts, and that the reissued patent is open to only such objections as might have been raised to the original patent." �In Broum v. Whittemore the second point made in this case seems to have been urged, and the court said : �"Upon a very careful examination of the evidence we are of opinion that the combinations of the second and fourth claima were not only invented by Whitcomb, but that they had not been publiely used or sold with bis consent before the time in question. * * * And, though the evidence is not all on one side, yet the preponderance of it is that the conibination of the treadle for raising the rake-head with the other devices was not fully discovered and used before June, 1856." �In Edgarton v. Beck the contest seems to have been mainly over the questions of novelty and infringement. �But the proofs in Brown v. Whittemore, on the question of prior use and sale with the consent of the patentee, and in Edgarton v. Beck, on the question of novelty, do not seem to have been the same as in the cases now before the court; and the original patent is before this court, 'which was not before the court in the Whittemore Case. �Of course, if the testimony in these cases was substantially the same as that, in the cases heretofore decided by the learned judges in the aiassachusetts circuit court, I should feel wholly bound by their decis- ions and the construction of the patent given by them. But, as it is evident from the inspection of this record that I have a different oom- bination of facts to deal with from what has been heretofore presented, I must consider these cases in the light of their own evidence. �The first objection to the second claim is that it cornes within the disclaimer of the original patent. �"I do not claim the wire teeth, F, attached to the head, E, as shown, for such a device, mounted on wheels, is in quite common use." �What is it that Whitcomb here disclaims ? My own construction is that it is the rake-head, E, mounted on wheels, as described in his specification and shown in his drawing ; and this rake-head and mode of mounting it is described in his original specifications iu the fol- lowing language : ��� �