in the middle or latter part of May, 1876, commenced building the lamp at once, and finished it about the end of June following; tested it, tried it, and made some minor alterations, and run it from time to time, when a lamp was needed, until the 16th of September following.

At this time he was in Philadelphia, and a fellow employé by the name of King, thinking that he could improve upon the clutch and make the feeding of the carbons answer more promptly to changes of the current, or make the feeding less "jerky," obtained permission from Wallace & Sons, who owned the lamp, to make an alteration. The "King clutch," constructed upon a different principle from that of the Hayes or the Brush clamp, was put into the lamp, which has remained in use in the mill, and since the end of 1876 has been "used in the electrical room for testing machines, carbons, &c., and has been used for that purpose more or less ever since." But one Hayes lamp was made until a duplicate specimen was made for use in this case. The Hayes clamp, it will be observed, was used in the lamp only until September 16. Prior to that date the use of the lamp with the original clamp is thus described by Mr. Hayes upon cross-examination.

It (the lamp) was moved about and burned in different places in the mill and outside, and it was also burned in our other shop occasionally.

This shop was known as the "skirt shop," the third floor of which was used for electrical work. The mill and skirt shop were ordinarily lighted by gas.

Question. On what occasion did you use the lamp out of doors? Answer. The lamp was used ont of doors on several occasions; when gangs of men required light unloading freight from railway-cars; digging for some work connected with the waterpower. I am unable to specify positively any particular date, but have a general recollection of being frequently called upon to make a light for some such purposes. Q. Did you use it sometimes to test dynamos with in June-September, 1876↑ A. I think not during that time.

Q. What other use did you put it to during those months except the occasions out of doors which you have mentioned A. It was used about the mill, more particularly around the muffles, on occasions when it was necessary to work during the evening.

case.

The use was a public one in the presence of the employés of the factory. The Hayes clamp has been preserved, and was an exhibit in the Wallace & Sons thereafter, after much experimenting, went to a limited extent into the manufacture of what were known in the case as "plate-lamps," or lamps having two carbon-plates instead of rods, but did not continue the business long. They say that the discontin uance was due to the fact that they did not have a satisfactory generator. The Hayes clamp was used upon the plate lamps, but, as has been said, was used upon but one carbon pencil electric lamp.

The plaintiffs vigorously insist that the Hayes clamp was not a completed and successful invention, but that its use was merely tentative and experimental, and was permanently abandoned because the device did not promise to be successful. Two facts are manifest, first, that the Hayes clamp was the clamp of the Brush patent, aud, second, that

it became, after September 16, a disused piece of mechanism in connection with carbon points. The question, then, is, Was it a perfected and publicly-known invention, the use of which was abandoned prior to the date of the Brush invention, or was its use merely experimental, which ended in an abandoned experiment on September 16 The plaintiffs, in support of their view, say that Wallace & Sons were searching for a successful lamp, and were exhibitors of an electric lamp at the Centennial Exposition; that inventors were in their employ who were encouraged to make experiments and trials in the hope that something good might be produced, and under this stimulus one Hayes lamp was made; that improvements in the location of the spring were made, then it gave a "jerky" light, and when the inventor was away another clamp was put on by the permission of the owners to remedy this irregular feeding, but that afterwards no other lamp was ever constructed, and the Hayes clutch was left among other "odds and ends," and that the indifference with which it was received, its confessed faults, the attempted improvements, and its disuse show that the Hayes clamp never was any thing more than an attempt to invent something which proved to be a failure.

The question of fact in this part of the case must turn upon the character of the use of the lamp prior to September 16, because it is established that the Hayes clamp and the Brush clamp in their patented features were substantially alike, and that the point in which they differviz, the length of the arms-is not a part of the principle of the device. Was the lamp with this clutch used merely to gratify curiosity or for purposes of experiment, to see whether the feeding device was successful, or whether anything more was to be done to perfect it, or was it put to use in the ordinary business of the mill as a thing which was com pleted and was for use, and was neither upon trial nor for show? Hayes made the lamp for Wallace & Sons as an improvement upon the White lamp, and apparently turned it over to them to be used when they chose. An alteration was subsequently made in the location of the spring. The lamp was used at different times in the work of the mill at night, indoors and out of doors. Its use at those times does not seem to have been for the purpose of testing the machine, or of calling attention to its qualities, or of gratifying curiosity, but it was used to furnish light to the workmen at their work. I have queried whether this use was not that of a thing which might be of help in an emergency, and which was thought to be better than nothing, though not of much advantage, but it was apparently used to accomplish the ordinary purposes of an electric light in a mill to enable the workmen to see at night, although it was not uniformly used because the mill was lighted by gas. But the plaintiffs press the question: Why, then, was the further use of the Hayes clamp and lamp discontinued? This question is significant, because the abandonment of a thing which is greatly wanted is ordinarily a very suggestive circumstance to show that it was defective, and that

before the invention could be completed something was to be done which never was done.

I think that Wallace & Sons did not push the electric-lamp business because they had no generator, and I also think that the Hayes lamp, either with or without the Hayes clutch, did not impress them favorably, for they contented themselves with making only one specimen, whereas they made six White lamps, and after much experimenting and after the invention of the Hayes lamp they made fifty or sixty plate-lamps. For some reason they did not manufacture the Hayes lamp, but turned away to the plate lamps. But the facts that the anticipatory device was the device of the patent, and did do practical work, and was put to ordinary use, and that it does not appear that the Hayes clamp was the cause of the neglect with which Wallace & Sous treated the Hayes lamp, seem to me to outweigh the doubts which arise from the shortness of its existence and its permanent disappearance from a carbonpencil lamp. The case is that of the public, well known, practical use in ordinary work, with as much success as was reasonable to expect at that stage in the development of the mechanism belonging to electricarc lighting, of the exact invention which was subsequently made by the patentee, and although only one clamp and one lamp were ever made which were used together two and one-half months only, and the invention was then taken from the lamp, and was not afterward used with carbon pencils, it was an anticipation of the patented device under the established rules upon the subject. With a strong disinclination to permit the remains of old experiments to destroy the pecuniary value of a patent for a useful and successful invention, and remembering that the defendants must assume a weighty burden of proof, I am of the opinion, that the patentee's invention has been clearly proved to have beeu anticipated by that of Hayes. (Coffin v. Ogden, 18 Wall., 120; Reed v. Cutter, 1 Story, 590; Pickering v. McCullough, 18 O. G., 818; Curtis on Patents, secs. 89-92.)

The bill, so far as it relates to the clamp patent, is dismissed.

[United States Circuit Court-Southern District of Ohio.]

KUHL . MUELLER ET AL.

Decided July 5, 1884.

28 D. G., 541.

1. It has never been held that an equivalent known at the date of the invention could be used without infringing the patent; such a holding, if generally adopted, would amount practically to the destruction of the law of equivalents.

2. If an inventor is the first to produce a result, he is entitled to all means known at the date of his patent by which the same result can be produced.

Mr. Geo. J. Murray for the complainant.

Mr. J. F. Twohig for the defendants.

SAGE, J.:

The complainant is the owner for Hamilton County, Ohio, of Reissue Patent No. 4,364, granted to John J. Schillinger, May 2, 1871, for improvement in concrete pavements. The patent has been so frequently sustained by decisions of the United States court that it is not necessary to state the reasons for holding it valid in this cause. It is sufficient to refer to the following cases: Schillinger v. Guenther, October, 1878, Judge Blatchford (14 O. G., 713); Same v. Same, Judge Shipman, May, 1877 (11 O. G., 831); Same v. Same, Judge Blatchford (16 O. G., 905); California Artificial Stone Paving Company v. Perine, Same v. Molitor, May 7, 1881, Judge Sawyer (20 O. G., 813.)

The invention relates, as is stated in the specification of the patent, to a concrete pavement which is laid in sections, so that each section can be taken up and relaid without disturbing the adjoining sections. The pavement is formed concrete of cement mixed with sand and gravel or other suitable material to form plastic compound, and laid in sections, so as "to allow the blocks to be raised separately without affecting the blocks adjacent thereto." The method stated by the inventor in his specification is to place between the joints of the adjacent blocks strips of tar paper or other suitable material in the following manner: After completing one block he places the tar paper along the edge where the next block is to be formed, and puts the plastic composition for such next block up against the tar paper, and proceeds with the formation of the new block. He proceeds in this manner until the pavement is completed, interposing tar paper between the several joints, as described. The paper does not adhere to the blocks. It forms a tight, water-proof joint, allowing the several blocks to heave separately, from the effects of frost, or to be raised or removed separately without injury to adjacent blocks. The claim is

The arrangement of tar paper or its equivalent between adjoining blocks of concrete, substantially as and for the purpose set forth.

This was the second claim; but the patentee, before making the assignment to complainant under which he sues, filed a disclaimer, disclaiming the first claim, leaving only the claim above quoted. The patent was at once recognized as valuable. Infringements were'numerous. Judge Blatchford states that the first infringers cut joints and filled the spaces with pitch or asphaltum. Cement also was used to fill the joints. Joints were cut, while the material was yet plastic, with the trowel. It was held that, although the cutting was not entirely through the pavement, it was an infringement, and that it was not material whether the cut was of greater or less depth, provided that it was sufficient to prevent the irregular cracking of the pavement, which had not been accomplished prior to Schillinger's patent.

In the case of the California Artificial Stone Paving Company v. Perine, cited above, Judge Sawyer said:

One of the great objections to the solid concrete pavements made before Schillinger's invention was that they cracked irregularly; and one of the chief advantages of his

invention, as shown by the testimony in these cases, is that the openings resulting from shrinkage come along the line of the joints, and the blocks themselves do not crack, although that advantage is not set forth in the patent. In the pavements constructed by the respondents this result has been attained, and it has been admitted by the respondents in one case in this court in which this Schillinger patent has been in question that the object of running the trowel through at the joints was to so weaken the pavement along these lines as to control the cracking and leave the blocks as marked off unbroken. This is clearly an infringement, for the patentee is entitled to all the benefits which result from his invention, whether he has specified all the benefits in his patent or not. So, in heaving from frost and in taking up the pavement the breakage would be likely to be along the same line.

The defendants Mueller and Dietrich have submitted testimony that they have not constructed concrete pavements laid in detached sections having tar paper or the equivalent between the adjoining sections, but that they have laid their pavements in a solid mass, and while they were yet plastic marked the surface with a fish-line one-sixteenth of an inch in diameter, the depth of the impression made by the line not in any case exceeding the diameter of the line; that the object in marking the pavement is to relieve the monotony of a plain surface and to give the pavement the appearance of having been constructed of freestone blocks. They insist that the material is not thereby divided, that none of it is removed, and that the pavement at the point of impression is actually strengthened, the particles of the material being pressed closer together by the impression made by the string, which is stretched across the pavement and then pressed in, generally by the use of the trowel.

The complainants submitted testimony tending to prove that the defendants cut joints with the trowel, and that the line-marks were coincident with the cuts, which had been at least partially closed by cement or other material; also that the line-marks, which fill with sand or dirt almost immediately, are the equivalent of the tar paper, for the reason that they control the cracking of the pavement and limit it to the space within the line-marks where it originates. The conflict in the testimony is irreconcilable, but there is in the testimony that which furnishes a means of arriving at a satisfactory conclusion, as will presently appear. The defendants cite the case of The California Artificial Stone Company v. Freedborn (17 Fed. Reporter, 735), decided by Judge Sawyer. He says:

It is insisted by complainant that marking off the blocks on the surface at the time of laying the pavement with a marker about one-sixteenth of an inch in depth is an infringement. I am unable to perceive that the mere running along the surface of that blunt and rounded marker one-sixteenth of an inch in depth, there being no cut ting elsewhere, is making a joint. I fail to see that it is an infringement.

This clearly indicates the true test. If the marking with the line be, as the defendants claim, merely ornamental, and effecting no other result than to give to the pavement the appearance of being laid in blocks or sections, it is plainly not an infringement. In the case cited, after a line of blocks had been formed and become solidified a new block was formed between scantlings and the block or blocks before formed with.