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ant had infringed the patent by using the invention secured by the second claim, and that the plaintiff recover $200 damages in accordance with the stipulation, the same to be in full satisfaction of all claims of the plaintiff against the defendant on account of defendant's infringement of the patent. The defendant has appealed.

The specification of the patent is in these words:

My invention relates to the construction of shoes or rubbers for car-wheels, and consists, first, in constructing the shoe of two parts, in the peculiar manuer described hereafter, so that the part in contact with the wheel can accommodate itself to the same; secondly, in the peculiar combination, described hereafter, of the two parts of the shoe, the clevis by which the shoe is suspended to the truck, and the bolt which secures the clevis to the shoe, and the two parts of the shoe to each other.

In order to enable others skilled in this class of mechanism to make and apply my invention, I will now proceed to describe its construction and operation.

On reference to the accompanying drawings, which form a part of this specification, Figure 1 is a vertical section of my improved shoe for railway-car brakes; Fig. 2, a sectional plan on the line 1, 2, Fig. 1; and Fig. 3, a front view of the shoe. Similar letters refer to similar parts throughout the several views.

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A is the shoe, and B the sole, the latter being formed to fit the periphery of the carwheel (part of which is shown by the line x), and having a lug, a, which fits between the lugs b b' on the shoe.

D is a clevis, the upper end of which is suspended to the truck of the railway-car, the lower end being arranged to embrace the lugs b and b' of the shoe, a bolt, G, passing through the lower end of the clevis, through the lugs b and b' of the shoe, and through the lug a of the shoe B.

It will be observed on reference to Fig. 2 that the lug a is made tapering, and that the bolt G fits loosely in the said lng, as well as in the lugs b and b', so that the sole is self-adjustable laterally, for a purpose described hereafter.

A projection, d, on the sole B fits into a socket in the shoe in such a manner that the sole can vibrate laterally in the said socket, while the projection serves to maintain the shoe and sole in their proper relative positions.

H is the usual brake-beam, one end of which fits into a recess in, and is secured to, the shoe A, the other end of the beam being secured to a similar shoe on the opposite side of the car-track.

The peripheries of car-wheels are always beveled or inclined, so that it becomes necessary to make the soles of the ordinary shoes or rubbers of a corresponding bevel, one shoe at one end of the beam being beveled in one direction, and the other shoe at the opposite end of the beam being beveled in a contrary direction. Even when the usual shoes are properly fitted to the beveled peripheries of the wheels, the lateral

movement of the axles as the wheels traverse curves of the track is such that the ordinary shoes cannot fit accurately at all times.

• Another evil attending the use of ordinary shoes or rubbers is that, as the lateral movement of the axles takes place, an undue strain is imparted to the brake-beam. These difficulties are avoided by my invention, inasmuch as the sole B is permitted to have a lateral rocking motion on the shoe, and can at once accommodate itself to the bevel of the wheel, or to any variation caused in that bevel by the lateral movement of the axle.

Another improvement in my invention is the peculiarly simple arrangement of the clevis which supports the shoe, the bolt G serving the purpose of connecting the clevis to the shoe and the latter to the sole.

The claim of the patent is as follows:

1. The shoe A and sole B, both being constructed and adapted to each other substantially as described, so that the sole can have a lateral rocking movement on the shoe, for the purposes specified.

2. The combination of shoe A, sole B, clevis D, and bolt G, the whole being constructed and arranged substantially as specified.

It is stipulated that neither of the two brake-shoes of the defendant infringes the first claim of the patent, for the reason assigned in the stipulation, that neither of them has the lateral rocking motion described in the patent, although it is stipulated as to one of them that it is constructed in all respects like that described in the patent, except that the shoe and the sole are fitted to each other so snugly as to have no rocking motion.

1. The first question presented for decision on the stipulation is as to whether the lateral rocking motion forms a part of the second claim of the patent. The circuit court held that the second claim did not embody as an essential element the lateral rocking motion, and that such element need not be found in a car-brake shoe in order to make it an infringement of the second claim. The view urged on the part of the defendant is, that the combination of the shoe, the sole, the clevis, and the bolt cannot, as a whole, be "constructed and arranged substantially as specified," if the whole is not so constructed and arranged as to admit of the lateral rocking motion, and that there is no suggestion in the specification of any construction or arrangement in which the sole has not a lateral rocking motion on the shoe. We think that the circuit court was correct in its construction of the second claim on the record before it. The first part of the invention is stated in the specification to be the peculiar manner of constructing the shoe proper and the sole in two parts in such way that the sole can accommodate itself to the wheel by reason of its having a lateral rocking motion on the shoe proper. That is the subject-matter of the first claim. The second part of the invention, or, as the specification says, the second improvement in the invention, is stated to consist in the peculiar combination of the shoe proper, the sole, the clevis, and the bolt, the clevis suspending the shoe and its sole to the truck, and the bolt securing the clevis to the shoe proper and that to the sole. The combination of the mode of suspending by the clevis with the mode of securing by the bolt is

the same whether the sole has a lateral rocking motion or not. That combination as a whole is constructed and arranged substantially as specified, even where there is no lateral rocking motion to the sole. The words "substantially as specified" mean "substantially as specified in regard to the combination which is the subject of the claim." The adaptation of the shoe proper and the sole to each other in such way as to produce or allow of the lateral rocking motion was the subject of the first claim. The combination formed by the peculiar arrangement of the clevis and the bolt in reference to the shoe proper and the sole is a combination which has no effect to produce or prevent the lateral rocking motion; and the stipulation states that this combination can be used constructed exactly as described in the patent when the shoe proper and the sole are so snugly fitted together that the sole has no rocking motion. In consonance with this view, the specification and the claims maintain a distinction between the arrangement for the rocking motion and the manner of combining together the shoe proper, the sole, the clevis, and the bolt. The stipulation declares that when the combination of the second claim is made there may be a lateral rocking motion in the sole, or there may not, for it states that the exact structure of the patent may be copied and yet the fitting of the sole to the shoe proper may be so sung that there may be no lateral rocking motion in the sole, and so no infringement of the first claim. Hence, a loose fitting of the same parts in the same structure would produce a lateral rocking motion and an infringement of the first claim. There is no suggestion that the combination of the second claim was not new; and, there being nothing shown in the state of the art which requires any such construction of the second claim as that contended for by the defendant, and it being fairly susceptible of the opposite construction, and the latter being oue which is commensurate with the real invention embraced in the second claim, and one which prevents the real substance of that invention from being bodily appropriated by an infringer, it is proper to give the claim such a construction.

2. The next question raised by the stipulation is as to whether there is any patentable novelty in the second claim on such a construction No question of novelty is raised in the answer, and nothing is introduced in evidence on that subject, or on the state of the art, except what is found in paragraphs 7 and 8 of the stipulation. The opinion of the circuit court, which is set forth in the record, speaks of "the various patents that have been put in evidence," but none such are before us, and the brief of the appellee states that the model marked "Defendant's Exhibit C" (mentioned in paragraph 7 of the stipulation), "has been selected, as the nearest approach to the patented invention, from a large number used in the court below." This would indicate that the full case presented to the court below is not presented here. As, however, the parties to this suit have stipulated as to what the record is so far as anything in the controversy between them in this

suit is concerned, and the stipulation states that it is a stipulation for the purposes of this suit and no other, and the clerk of the circuit court certifies the transcript to be "a true, correct, and complete transcript of the record of all the proceedings " had in the circuit court in this suit, "as appears from the files and records of" the court remaining in his custody and control, what is furnished to us must be accepted as sufficient for the purposes of this suit, leaving our decision in the case to stand, in its bearing in respect to other suits on the same patent, with only that weight which is due to it in view of the manner in which the case is presented in the record.

The brake shoe described in paragraphs 7 and 8 of the stipulation and shown in defendant's Exhibit C, it is very clear does not contain what is covered by the second claim of the patent as we have defined it or destroy its patentable novelty. Bing accomplishes by one bolt what required three bolts in the prior structure. His whole structure can be taken off from the clevis by removing the one bolt, while in the prior structure it required the removal of two bolts to take off the sole from the shoe proper and the removal of a third bolt to take off the shoe proper from the clevis.

3. On the foregoing views, it is admitted by paragraph 10 of the stipu ation that the first of defendant's brake-shoes infringes the second claim, and there must be a decision as to that shoe in favor of the plaintiff.

4. The only remaining question is as to whether the defendant's other brake shoe, Exhibit B, is in its mechanical construction substantially the same as the combination described or shown in the second claim. In the Bing shoe-brake the clevis is a three-sided structure, the two lower ends of which embrace the two lugs of the shoe proper, and the bolt passes through the lower end of one arm of the clevis, then through one of the lugs on the shoe proper, then through the lugs on the sole, then through the other lug on the shoe proper, and then through the lower end of the other arm of the clevis, and the sole cannot be removed without first removing the bolt, because the lug on the sole fits in between the lugs on the shoe proper. In the defendant's structure there is no bolt-hole through the lug on the sole, but there is a curved depres sion made in its top, in which the curved lower end of the clevis rests. The clevis does not have two arms, the lower ends of which embrace the lugs of the shee proper, and the bolt goes through one of those lugs, then through a hole in the lower end of the clevis (the clevis being a vertical piece, without arms, and not three-sided), and then through the other one of those lugs, but the bolt does not go through the lug on the sole. That lug is kept in place by the pressure on it of the curved lower end of the clevis, which cannot move out of position, because the bolt goes through it and holds it. The bolt alone, without the clevis, will not confine the lug on the sole. The lug on the sole cannot be removed until the bolt is removed and the clevis is detached. The shoe proper, the sole, and the clevis are combined by the single bolt, which

secures together the clevis, the shoe proper, and the sole. The bolt and the clevis perform the same office in the two structures, and the mechanical differences are merely formal and not substantial. The combination consists of the same four parts, differing only in form. The decree of the circuit court is affirmed.

[Supreme Court of the United States.]

THE ILLINOIS CENTRAL RAILROAD COMPANY v. TURRILL, ADMINISTRATRIX, &c. THE MICHIGAN SOUTHERN AND NORTHERN INDIANA RAILROAD COMPANY v. TURRILL, ADMINISTRATRIX, &C.

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In view of the former decision of this court in these cases (reported under the name of the Cawood patent, 94 U. S., 695), nothing was left open for further in. quiry but the amounts of the former recoveries for the use of the non-infringing machines, and the true way of determining this clearly was to find out what part of the profits for which the original decrees were rendered had been made by the use of the non-infringing machines.

2. PROFITS-WHEN INTEREST IS ALLOWABLE.

As a general rule, a patentee is not entitled to interest on profits made by an infringer, because profits are regarded in the light of unliquidated damages; but where a case was sent back to ascertain how much should be deducted from deerces for errors in the accounting as then stated, it seems not at all inequitable to allow interest on the corrected amounts from the date of the master's report. The cases are entirely different in this particular from what they would have been if the original decrees had been reversed for error in the principles of the accounting. The decrees in the present cases may be considered as affirmed in part and reversed in part, the new reference being had only to find out the exact extent of the reversals.

3. PRACTICE in the Courts-Death of PATENTEE AFTER APPEAL DOES NOT ABATE THE SUIT.

The death of the patentee since the appeals were taken does not prevent the suits from being further prosecuted in the name of the legal representatives.

APPEAL from the circuit court of the United States for the northern district of Illinois.

Mr. Geo. Payson for the railroad companies.

Mr. Chauncey Smith and Mr. L. L. Bond for the administratrix.

Mr. Chief Justice WAITE delivered the opinion of the court: The effect of the judgments in these cases when here on the former appeals, as reported under the name of the "Cawood patent" (94 U. S., 695), was to affirm the decrees then appealed from so far as they charged these appellants, respectively, with the profits made from the use of the infringing machines, known as the "Illinois Central," the "Etheridge," and the "Whitcomb," and to reverse as to the profits made by the use

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