Page:Federal Reporter, 1st Series, Volume 9.djvu/474

 BDGARTON ». TUBST & BEADLEY MANDF'G 00. 469 �shown in his patent, and he may have been the first person to sup- port it upon a carriage. He may have been the inventer of the treadles in question. �ihe only question is, did he apply for a patent before these parts of his rake beeame common property? and my conclusion from the proof is that Whitcomb did not make his application for a patent until more than two years after this rake-head and these treadles had corne into public use with his consent. The full-sized rakes that are put in evidence in this case show satisfactorily that these devices, these treadles and levers, were adopted and in use, and were part of these original rakes, at the time they were made and put upon the market, and that they were actually made and sold as early as the haying season of 1854. �This certainly fully sustains the conclusion to which I have arrive 1 as to the use of these treadles in those rakes, It is olaimed on the part of the complainants that the old rakes have been altered over ; that neW; treadles have been put into them; but there is nothingin the appearance of the mechanisms or of the treadles, as they stand now before the court, to show that there bas been any change. AU the parts seem to be of an age — they all bear the same marks of exposure. There is no evidence of any cutting, or change by substi- tuting the treadles they now have for other devices. Indeed, the whole appearance of these old rakes satisues me that they now show their parts as they were originally constructed. �I have therefore come finally and firmly to the conclusion that these treadles were old and common property at the time this patent was issued. Perhapg, as I have already said, they were Mr. Whit- comb's invention. He seems to have been the leading genius in that locality in reference to this class of farming implements, and it is likely and probable that these improvements were his. But he aban- doned them to the public. He allowed his neighbors to use them, They were public property, and sold on the market long before the expiration of two years prior to the application for this patent, and they were not mere experimental uses. These rakes were made and sold in the market for use in the fields, not merely for the purpose of seeing whether they would work or not. �Sothat, from all these considerations, I come to the conclusion that the claims of this patent involved in this suit must be held to be void, and this bill must be di^missed for want of equity. ��� �