Page:Federal Reporter, 1st Series, Volume 9.djvu/624

 OEOSS ». LIVERMOKE. 609 �therefore, exista whelber the defendant bas been guilty of an infringe- ment of this patent. �The complainant further contends that the defendant's peu is an infringement of the first claim in another patent granted to him, No. 199,621, dated January 29, 1878, which is in the following lan- guage : �"I claim as my invention (1) the vibrating pin, D, and spring, F, combined with an air tube, B, caae, A, and tube, H, substantially as described." �Just bef ore this the specification states : �"The attachment of the pin, D, to the lower end of the air tube, B, se as to be operated by meana of a spring, substantially as shown and deacribed, being the gist of my improvement." �The improvements here made are the substitution of the spring for the valve, and the attachment of the pin to the air tube in the manner described in the patent. �It cannot be denied that the defendant's pen much more nearly approaches this construction than that of the complainant's first pat- ent, and the question of infringement is therefore a doser one. The defendant's pen bas a vibrating pin or needle, which is operated by means of a spiral spring ; but the pin, instead of being attaohed to the air tube in the manner set out in complainant's patent, is en- tirely separated from it, — a supporting post, below the air tube, 'holding firmly a small tube containing the spring, and the upper end of the pin or needle. Can a combination which dispenses with the attachment of the pin to the air tube, and bhe device by which such attachment is made, and which substituteg for this a supporting post, whereby the pin and spring are eut ofiE entirely from the air tube and the upper section of the pen, be considered an infringement of the complainant's claim? �The defendant, Livermore, derived this supporting post by assign- ment to him of the patent of G. F. Hawkes, for improvement in foun- tain pens, No. 236,222, dated January e, 1881. It is claimed that this construction is superior to the complainant's, because, by being able to entirely disconnect the upper from the lower section of the pen, and by this means to confine the delicate machinery of the spring and pen within the lower section, there is much less liability to injury from exposure when filling, and that it is also more easily cleaned. �v.9,no.30— 39 ��� �