Page:Federal Reporter, 1st Series, Volume 9.djvu/476

 MAXHEIMEB V. MEYBR. 461 �contrivance to tie or lock them together. That invention and patent, therefore, underlie all constructions of cages where the horizontal bands are held in place solely by shoulders formed on the upright wires. The plaintiff's second patent is for an improvement upon his first, by bringing the bends within a hollow cross-band, and making the connection more firm by flattening the cross-band and bringing the shoulders formed by the holes through it more closely to the shoulders on the vertical wires. The cross-bands are held in place solely by the shoulders on the upright wires in both, the improvement in the latter consisting merely in the better mode of bringing the shoulders to bear. �In the defendant's cage the cross-bands are held in place solely by these means, and the shoulders are brought to bear by the plaintiff's improved method. They therefore infringe both patents, if the second is valida The only near approach to the plaintiff's invention sought to be patented in this patent, and' the only one to which special refer- ence is deemed to be necessary prior thereto, is in some cages made by John L. Fisher, inventer and assignor in letters patent No. 167,325, dated August 31, 1875, for an' improvement in bird cages, in 1876, at Buffalo. This patent is for a cage ^ith a hollow cross-band, like the plaintiff's, with short bends on the upright wires, within the hol- low of the cross-band, but held in place by a wire key inserted within the bends and through the wire, and locking the upright wires to the cross-band. This is not the plaintiff's intention, which does aVay with all contrivances for fastening except the shape of the cross-band and upright wires. �The evidence shows clearly that Fisher made some cages before the plaintiff's invention without this wire key. Those so made, with- out other fitting than the insertion of the upright wires with'their bends through the holes in the cross-band, would not have a firm attachment of the, cross-band to the wires. It is said in behalf of the plaintiff that none of these had all the cross-bands without the key; but this is not material, for one cross-band and its connection with the wires would show the invention as well as piore. The evidence tends to show that in shaping some of these cages the cross-bands out of which the key had been left were flattened, and a firm connec- tion thereby made between them and the upright wires. That, if donc, would show the construction of the plaintiff's second patent. But it is doubtful whether that was done. If donc, it was'not'for the purpose of making a' better connection between the bands aiid wires, nor known then to have that effect, but was accidentai, and inci- ��� �