Accordingly, we find that several chemists of distinction, examined as experts in the case, find, by analysis of the defendants' paint, oxide of copper; but they admit that the arsenious acid and the oxide of copper were chemically combined. If sulphate of copper were used in the defendants' paint, and such use of sulphate of copper is admissible with. out infringement, under the license given both by the disclaimer in the patent and the stipulation in the agreements, an analysis of the paint would show the oxide of copper. So, after the conversion of the sulphate of copper into arsenite of copper, by the use of arsenite of soda, an analysis of the paint, into which the arsenite of copper centers as 'an ingredient, will show the presence of copper and oxygen. But these elements, in their new chemical combinations in the new substance, a basic or tribasic arsenite of copper, cannot strictly be said to exist as an oxide of copper, with any more propriety than metallic copper, or arsenic, can be said to exist as such in the sulphate of copper or the ar senite of soda; nor was arsenite of copper a known equivalent for the oxide of copper, as a pisonous ingredient in a marine paint, at the date of complainants' patent.

Without undertaking to decide upon the different theories respecting chemical combinations maintained by the eminent chemists who have been examined by the respective parties, after a careful examination of all their testimony, I am satisfied that this case must be decided on the practical views above expressed. The conclusion is that the paint of the defendants, manufactured in the manner testified to by Professor Ordway, is not an infringement of the complainant's patent. Bill dismissed.

[Supreme Court of the United States.]

HENRY MEVS, APPELLANT, vs. JACOB A. CONOVER.

O. G., vol. xi, p. 1111.

Appeal from the Circuit Court of the United States for the Southern District of New York-Decided October Term, 1876.

The profits are not, all that an infringer made in the business in which he used the patented invention, but they are the worth of the advantage he obtained by such use; or, in other words, they are the fruits of that advantage. (Mowry vs. Whitney, 14 Wall., 651.)

Thus, where no profits actually resulted from the use by reason of the defective mechanism in combination with which the infringed device was employed, yet, as the loss was less than it would have been with the infringed device omitted, this benefit is equivalent to an equal gain, and was rightly estimated as a part of the profits for which the infringer was responsible.

The surrender of a patent extinguishes it, and after its surrender pending suits founded upon it fall with its extinguishment.

If a patent is surrendered for reissue after final decree or judgment, the surrender has no effect upon a right passed previously into judgment. The right of the patentee then rests on his judgment or decree, and not on his patent,

Mr. Justice STRONG delivered the opinion of the court:

The only errors assigned in this case are to the confirmation of the master's report, and they relate to the ascertainment of the profits which the defendant had made by his unauthorized use of the plaintiff's invention. That the machine employed by the defendant in splitting wood was an infringement of the plaintiff's patent is established by the decree which sent the case to the master, aud no complaint is made of that, but it is contended the master erred in reporting "there was saved to the defendant seventy-five cents per cord in the wood split by him and made into bundles." In the ascertainment of profits made by an infringer of a patented invention, the rule is a plain one. The profits are not all he made in the business in which he used the invention, but they are the worth of the advantage he obtained by such use; or, in other words, they are the fruits of that advantage. (Mowry vs. Whitney, 14 Wall., 651.) We are not convinced that the rule declared in that case was not followed in this. The patented invention infringed by the defendant was a new and improved machine for splitting kindling-wood, and a distinguishing feature of it, perhaps the principal feature, was a device for the automatic feeding of the wood to the reciprocating splitting-knives or cutters, by a movable platform or apron carried forward by an endless chain. That device the defendant used, though it is said he used it in another machine, known as Green's. The evidence is full and uncontradicted that an advantage is gained in splitting kindling-wood by a machine with that device of at least seventy-five cents a cord over splitting it by hand or without that device. It was in harmony with this evidence the master reported and the court decreed.

It is urged, however, that the Green machine, in which the defendant used the plaintiff's invention, was old and defective, and that no profits were actually received from such an use. But if such be the fact, if the defendant was a loser by splitting wood with the Green machine, his loss was less to the extent of seventy-five cents on each cord split than it would have been had he not used the patented invention. Such a result was equivalent to an equal gain, and it was rightly estimated as a part of the profits for which the infringer was responsible.

These observations are sufficient for the case. We notice, however, a suggestion made on behalf of the appellant, that since the decree in the circuit court the patentee has surrendered the patent upon which the decree was founded, and obtained a reissue. This does not appear in the record, and if it did it would be immaterial. We have held that the surrender of a patent extinguishes it, and that, after its surrender, pending suits founded upon it fall with its extinguishment. The patent must remain unsurrendered, not only when a suit upon it is commenced, but at the time of trial and judgment. But a surrender after final judgment or decree can have no effect upon a right passed previously into judgment. After that there is nothing open for litigation. The right of the patentee then rests on his judgment or decree, and not on

his patent. The suggestion, therefore, cannot avail the appellant, and the decree of the circuit court must be affirmed.

Decree affirmed.

[United States Circuit Court-District of New Jersey.]

GEORGE CROUCH vs. WILLIAM ROEMER.

O. G., vol. xi, p. 1112.

In Equity.-Before NIXON, Dist. J.

Letters patent No. 82,606, reissued March 7, 1871, to George Crouch, for a particular construction of strap to "confine a shawl or similar article in a bundle," declared to be void in consequence of prior knowledge and public use.

In suits for infringement "the patent is prima facie evidence that the patentee was the original and first inventor, and any one who controverts this assumes the burden of proof and undertakes to show affirmatively that there was a prior knowledge and use of the invention under such circumstances as to give to the public the right of its continued use against the patentee." (Crouch vs. Spear et al., VI OFFICIAL GAZETTE 187.)

E. B. BARNUM for complainant.

ARTHUR V. BRIESEN for defendant.

OPINION OF THE COURT.

NIXON, D. J.:

This is an action for an alleged infringement of complainant's letters patent No. 82,606, dated September 29, 1868, and reissued March 7, 1871, No. 4,288.

The subject-matter of the patent is on the reissue described to be a strap "to confine a shawl or similar article in a bundle," and termed a shawl-strap. The schedule attached to and forming a part of the said reissued patent states that, before the complainant's invention

Straps had been used to confine a shawl or similar article in a bundle, and a leather cross-piece with loops at the ends had extended from one strap to the other; and above, and attached to this leather cross-piece, was a handle. This leather cross-piece or connecting-strap is liable to bind and allow the straps to be drawn toward each other by the handle in sustaining the weight. Hence, the bundle is not kept in a proper shape, and the handle is inconvenient to grasp.

The invention is then stated to consist of

A rigid cross-bar beneath the handle, combined with the suspending-straps that are to be passed around the shawl or bundle, such straps passing through loops at the ends of the handle.

No question can be made but that the shawl-straps manufactured and sold by the defendant are infringements of the complainant's reissue. They consist of a metallic cross-bar, with slots at the ends for the reception of the straps, and which also connect the ends of the handle.

Several defenses are set up in the answer, but the only one necessary to consider is the first, to wit, the want of novelty and prior public use.

I had occasion heretofore to inquire into the validity of the complainant's patent in a controversy between the same complainant and Spear et al., reported in VI OFFICIAL GAZETTE, in which, as in this case, the principal defense turned upon the novelty of the invention. A prior public use was alleged, and attempted to be proved.

I there said, and now repeat

That the patent is prima facie evidence that the patentee was the original and first inventor, and that any one who controverts this assumes the burden of proof and undertakes to show affirmatively that there was a prior knowledge and use of the alleged invention under such circumstances as to give to the public the right of its continued use against the patentee.

The defense in this case has brought out many facts in regard to the public use of the rigid cross-bar in shawl-straps, anterior to the date of the complainant's patent, which were not developed in the former suit. There is no evidence which, in my judgment, affects the honesty of the complainant's claim, or which creates any doubt that he really believed himself to be the original and first inventor; but, nevertheless, I am constrained to the conclusion, after a most careful examination of the whole testimony, that the proofs show with reasonable certainty that he has been anticipated in the invention, and that his patent is void in consequence of the prior knowledge and public use, and the bill must there. fore be dismissed with costs.

[United States Circuit Court-District of Massachusetts.]

THE UNION METALLIC CARTRIDGE COMPANY vs. THE UNITED STATES CARTRIDGE COMPANY.

O. G., vol. xi, p. 1113.

In equity.-Before SHEPLEY, J.-Decided April 13, 1877.

A patent for a machine for forming heads on cartridge-shells, in which the shells are carried through a die on the mandrel, and both mandrel and die are moved forward together, forcing the closed end of the shell against a stationary header and squeezing it down to form the flanges, is infringed by the use of a machine in which the die is stationary and the header advanced after the mandrel has carried the shell into position.

The fact that there is an advantage in having the die stationary while the header moves toward it is not alone sufficient tɔ show that the machine is not the equivalent of that patented, all the elements of combination existing alike in both and operating the same in combination.

An inventor, without describing equivalents in his patent, is entitled to be protected in their use and to treat their use by others as an infringement.

Purchasers of patented machines are entitled to repair and pefect them and use the same during the extended term of the patent.

The machine for making cartridge-cases, described in the letters patent reissued to Ethan Allen, May 9, 1965, an 1 subsequently extended,

forms a flauge on the head of the cartridge for the reception of the fulminate. A mandrel is advanced and inserted into the shell and pushes the shell into a die which surrounds the shell, with the closed end of the shell projecting beyond the die a sufficient distance to afford metal from which the flange may be formed. The outside of the shell in this position is thus supported by the die, the inside by the mandrel, and the edges of the open end of the shell by a shoulder on the mandrel. The mandrel, die, and shell then advance together, forcing the closed end of the shell against the bunter, and squeezing the end down so as to form the flange of the cartridge. The mandrel then retreats, leaving the headed shell in the die, retained there by the flange on the outside of the die, on that side of the die farthest from the mandrel. The die has a gutter, which is a prolongation of the hole in the die, but open on top, into which gutter the shell is dropped prior to being acted upon by the advancing mandrel. When the mandrel is retracted after the flange has been formed on one shell, a second unflanged shell is placed in the gutter to be entered and forced forward in turn by the mandrel, the advance of this shell on the mandrel driving out the shell which was previously headed and remained in the die; the second shell is then headed as before, and so on in succession. The claims in the patent are for

1. The mandrel which carries the cartridge-shell in combination with the die which admits the same, and against which the closed end of the cartridge-shell is headed, substantially as described.

2. The die constructing and operating for the heading of cartridge-shells, substantially as described.

In the machine admitted to be used by the defendants are found substantially the same die, mandrel, and bunter, operating in the same manner to form the flanged head of the cartridge and to expel the shell after being headed, except that in defendants' machine the bunter moves toward the die to head the shell, while in the Allen machine the die moves toward the bunter to head the shell. The fact as proved that, especially in the case of cartridges of longer sizes, there is an advantage in having the die stationary while the bunter moves toward it, is not sufficient alone to show that this latter form of the machine is not an equivalent of the other, all the elements of the combination existing alike in both, and operating alike in combination.

It is contended on the part of the defendants that the action of the Commissioner of Patents, in requiring a disclaimer of so much of the reissued patent as claimed in specific terms the use of the movable bunter and the stationary die as an equivalent for the movable die and the fixed bunter before granting an extension, is conclusive upon the complainants, but we do not so regard it. The patentee, without describing equivalents, is entitled to use equivalents, and to treat the use of equivalents by others as an infringement, and this, upon the evidence in the record, appears to be a clear case of such a use.