Page:Federal Reporter, 1st Series, Volume 9.djvu/625

 .6IjO FEDERAL ftEt-OBTER. �• H ihe attachment of the peu to the air tube is a substantive part of the complainant's invention, and if for this part the defendant substitutes Bomething else, which is not a mere mechanical equiva- lent, viz.y the supporting post, there bas been no infringement. To say that this attachment is not a fflaterial part of the patented eom- bination, considering its importance in the arrangement, and the lan- guage of the specification, would, we think, be going too far. At least, the point is sufficiently doubtful to dispose of this motion, whatever may be the final .conclusion after a full hearing. �Again, it is chargea that the defendant bas infringed another pat- ent granted to the complainant, dated May 11, 1880, and numbered 227,416, wlierein the claim is, — �" In a stylograpMc fountain pen, a spindle having a tip of indiutn, or like hafd substance, in coœbination with a tubular point of comparatively soft metal, the spindle being arrangea in the point to project slightly and bear upon the paper, substantially as set forth." �The defendant, in answer to this charge, introduces affidavits seek- iilg to show prior use or knowledge by others bei'ore the invention. The complainant. Cross, states in bis affidavit "that be is unable to give the exact date of bis invention, but it was probably in the spring or Bummer of 1878." On the other band, the defendant produces the affidavits of James M. Clark, a manufacturer of fountain pens, and of Charles H. Court, an employe, who sv?ear to a similar use of. indium upon other fountain pens prior to the middle of 1877. �James M. Clark says : �" The pens in which the indium-tipped needle was used all had a tubular point, from which the needle projected, composed of metal much softer than the indium, and the needle had an endwise movement, and was arranged in the point to project slightly from or beyond the end of the tubular point and bear upon the paper." �In the affidavit of Charles H. Court we have also a similar descrip- tion of the use of indium, both statements detailing the same use in substance as that specified in complainant's patent. �Judging from the evidence before the court, we cannot but say that some doubt is thrown upon the validity of this patent. A fuller investigation may, of cburse, dispel this. While it is unquestionably true that, these things being proved,— namely, a patent, long posses- sion, and infringement,- — the party is entitled,^rma/rtcie, to an injunc- tion; yet even where this is shown the question will be, in cases of opposing evidence, wbether this right bas been displaced by the ��� �