Page:Federal Reporter, 1st Series, Volume 9.djvu/677

 662 rSDEBAIi BBM)Bl'Bit.' �edges or corners next the surface to which they are to be aflSxed. The plaintiff's loop has an open bottom, the metal being only on the top and the Bides. The defendants make one forui of loop with a closed bottom, and with lugs punched ont of the bottom at three sides of the lug and bent down at the fourth side, ready for use, and standing at right angles to the sides of the loop and in the same plane with each other. To maintain non-infringement, and yet ena- ble themselves to appropriate the real invention, they contend that the claim of the reissue is a departure from the invention shown in the original, (1) in making it necessary only that the lugs should project from the loop, without limiting them to being arranged as in the drawings, on the lower edges of the sides ; (2) in making it nec- essary only that the lugs should be used to affix the loop, without its being neeessary to use them by putting them through the carriage top; (3) in making it optional to use the plate, C. It is clearly a mere formai alteration, and within the invention, to put on the closed bottom and make the lugs project from it, instead of making them project from the edges of the sides. The closed bottom or fourth side is a uselesB expenditure of labor and niaterial, so far as the real invention and the employment of it are concerned. The defendants' lugs project in a manner entirely equivalent ; and if the claim of the reissue had said, as did the claim of the original, that the loop had lugs on its edges, it would have beeil proper to say that, for all practical purposes, the defendants' lugs were upon the edges, the variation being immaterial. The claim of the reissue is not capable of the con- struction that the lugs are to be used without putting them through the carriage top. It was no departure and no new matter to make the use of the plate, C, optional. To say that the lugs of the patent project from the edges or cornets next the surface to which they are to be affixed, is just as accurate a description of them as to say that they are upon the lower edges of the loop. It is from the edges next the surface to which the lugs are to be afiQxed that the lugs project. There is no statement in the reissue that the lugs are not to project from the edges, and calling the edges corners does not alter their location. It is plain that the forms of loop shown in "Complainant's Exhibit 2" and in "Complainant's Exhibit 3" infringe the claim of the reissue, and that the reissue is not open to the objection that it is not warranted by the original patent. �The remaining question is that of novelty. Varions old devices are introduced wherein sheet-metal prongs or lugs projccting through a material, such as leather or paper, and clinched by bending them. ��� �