Page:Federal Reporter, 1st Series, Volume 9.djvu/618

 HILLEB V. FOBEE. 608 �Mille B & Worlet v. Fobeb & Co. {Circuit Court, D. Kentucky. 1881.) �1. Lettebs Patent — Pkiob Discovery and Use. �Prior discovery and successful use of the patented process ia a complete defence to a suit for iufringeinent brought by the patentee. �2. Bame— Tobacco Plugs. . �The invention of a process for finisbing and marking tohacco plugs. claimed by Miller & Worley in reiasued letters patent No. 8,060, dattd January 29, 1878, ■was anticipated by Ed. P. Smith. �Qeo. Harding, Stem e Peck, and Beattie e Winchester, for plaintiffs. �S. S. Boyd, for defendants. �Baxter, G. J. Complainants sue for an alleged infringement of reissued letters patent No. 8,060, issued to them on the twenty-ninth of January, 1878. �The invention claimed consists of a process for flnishing and marking to- bacco plugs with an ineffaceable identifying impression by oiie and the same pressure, by means of compress plates, with draws in relief, whereby the tobacco takes a permanent set, with the impression in it, and in a flnished state; the tobacco having been previously prepared by a forming pressure in the molds. The patent contains two claims: First, the described process of marking plug tobacco, which consists in impressing letters or other marks dlrectly into the side of the plug durlng the process of manufacture, and by the pressure employed in making the plug, substantially as described ; second, a tobacco plug marked with an impression, substantially as described. �The defendants, among other defences, allege that Miller & Wor- ley, the parties named in the original patent as the first and original disooverers of the patented process, are not the original discoverers thereof, and aver that said process was understood and applied by the several parties named in the answer before its discovery and use by Miller & Worley. The case, as it was then presented, was heard by me more than a year ago, when a decree was entered sustaining the first claim of the patent, adjudging defendants guilty of infringe- ment, granting an injunction, and ordering an account of profits, etc. But before the account was taken I granted a rehearing to enable defendants to put in additional and newly-discovered evidence to sustain this defence of prior discovery and use of the process secured by complainants' patent. Further evidence was accordingly adduced by both parties bearing on this issue, the most important of which is found in the depositions of Ed. F. Smith and Robert E. Lee. �The object of these depositions is to show that the patented pro- cess had been discovered, matured, and successfully used by Smith ��� �