The defendant's gas-stove (Exhibit No. 12) contains all the valuable features of the claims. It differs from the exhibits embodying the patented device, as it is understood by the complainant, in minor and unimportant details only. The question, therefore, and the crucial question, is whether the defendant, Mark M. Nicholls, made the patented structure prior to February 24, 1892.

It is unnecessary to discuss the details of the testimony further than to say that Nicholls swears that he made and sold tubing having the patented improvement eight years and more before the date of the application for the Caldwell patent, and continued to do so for several years. A specimen which has been in his possession and in use in his family since 1887 was produced. The testimony bearing on this prior use was approached with the disposition to reject it if it contained any evidence of having been manufactured; but after having read it with careful scrutiny the court is compelled to the conclusion that it is worthy of belief. The reasons which lead to this conclusion are briefly as follows:

First, Nicholls is corroborated by his wife, Shaw, Flanders, and Hindelang. Their evidence is uncontradicted, except, perhaps, as to a few unimportant collateral issues.

Second. In order to find with the complainant upon this issue, it is necessary to convict at least three of these witnesses of perjury and conspiracy. There is nothing to warrant such a finding. In order to reach it the court must arbitrarily discard the testimony of five unimpeached witnesses and substitute mere conjecture therefor. In other words, the court must reject facts based upon proof for suspicions based upon the imagination of counsel.

Third. There is nothing in the past history of Nicholls and his wife to indicate that they would be guilty of fabricating a fictitious exhibit and supporting it by wholesale perjury. So far as their history is disclosed in this record they were respectable, hard-working, and honest people. That in middle life, with their children growing up around them, they should suddenly develop a proficiency in crime which would be rare even among professional law-breakers is surely not to be presumed.

Fourth. Shaw, Flanders, and Hindelang are disinterested witnesses. What motive they could have in swearing to the gas stove construction and similar tubing if in fact no such structures existed it is impossible to conceive.

Fifth. This is not the case of a single witness swearing to a structure which he has not seen for a quarter of a century. All of the important events occurred less than nine years and some less than four years prior to the taking of the testimony. Neither is it a case of unaided memory. The structure itself is produced which for eight years had been in the possession of the defendant and in use at frequent interH. Doc. 354-20

vals during that period by members of his family. As to the other witnesses, their recollection is refreshed and aided by a number of corroborating facts and circumstances about which there is no question.

Sixth. There is nothing inherently improbable in the defendant's proof. Nicholls was a manufacturer of tubing during all the time in question. He was a man of more than ordinary capacity. He was himself an inventor, and in 1883 received a patent for improvements in flexible tubing. The "Little Giant" gas stove is a verity; so is the "Scovil tip." The former was purchased by Mrs. Nicholls of Shaw at the American Institute Fair in 1887 or 1888. Scovil tips were at the same time sold in large quantities by the E. P. Gleason Manufacturing Company. There is nothing extraordinary in the fact that an ingenious manufacturer of tubing, with a cap ready at his hand, should place it on the end of the tube to conceal and strengthen the joint. It was a natural thing to do. Nicholls says he made a large quantity of tubing thus constructed and sold it to a number of well-known dealers, whose names he gives. No one contradicts this testimony.

Seventh. The complainant's counsel lay stress upon the fact that this prior use was not pleaded in the answer as originally filed, but appeared afterward in the form of an amendment. It is argued that this is a suspicious circumstance. It certainly is; but its force is considerably broken by the testimony of the patentee, who says that he had a conversation with Nicholls prior to the suit and about six months after the patent was granted, and that Nicholls then told him that he had made the patented tip several years before the date of the patent. This testimony tends to sustain the defendant's theory that the defense was omitted through the inadvertence of his counsel, the lawyer first employed by him not being a specialist in patent law.

Eighth. The other reasons advanced by the complainant for disre garding defendant's testimony have been fully considered. Some of these criticisms are cogent and ingenious and have been worked out with great care and diligence. They are not sufficient, however, to outweigh the reasons here given for accepting the testimony. Of course discrepancies and contradictions exist. They always do. No more of this appears than is usual where five witnesses testify from different points of view regarding events which occurred several years before. Taken as a whole the testimony carries the conviction that it is true. To reject it wholly would be doing a number of persons, apparently honest, a gross injustice. When the court takes the responsibility of branding as unworthy of belief the uncontradicted testimony of five reputable witnesses it should have some reason to advance for a course so unprecedented. No adequate reason is suggested.

It follows that the bill must be dismissed.

[U.S. Circuit Court-Western District of Pennsylvania.]

WELKER v. WELLER et al.

Decided February 13, 1896.

75 O. G., 185.

1. WELKER-Fastening for Table-Legs-Not Infringed.

Claim 3 of Letters Patent No. 480,536, granted August 9, 1892, to Louis Welker, for a fastening for table-legs, examined in view of the prior advance in the art and also in view of proceedings in the Patent Office, in which the applicant in effect disclaimed originality in a structure of the reference, and Held to be incapable of expansion to cover constructions which do not embody the elements of said claim.

2. SAME-SAME-DESIGN PATENT-VOID.

Design Patent No. 22,997, granted January 2, 1894, to Louis Welker, for a tableleg, in view of the use of a table-leg of substantially the same design by the respondents prior to its invention by the complainant, Held to be void for want of patentable novelty.

3. DESIGNS-IDENTITY.

Where two designs are in their prominent features identical and their sole difference lies in the fact that the protuberance of one has a small nut on the end and the other has none, the difference is not of such material character as to afford ground for the grant of a design patent.

Mr. John G. Reading and Mr. Frank L. Dyer for the complainant. Mr. S. P. McCandless, Mr. H. C. Parsons, and Messrs. C. D. & W. R. Davis for the defendants.

BUFFINGTON, J.:

This suit is brought by Louis Welker against H. M. Weller and William Decker for alleged infringement of Letters Patent No. 480,536, granted August 9, 1892, for a fastening for table-legs, and also for the infringement of Letters Patent for a design for a table-leg, No. 22,997, granted January 2, 1894, to said Welker.

As touching the first patent, infringement of the third claim is alleged, which is as follows:

3. In a knockdown table, the combination of the frame having its side pieces provided with the longitudinal segmental kerfs or grooves, arranged as described, the corner-piece or brace having its chamfered ends provided with the tenons secured in the grooves or kerfs, the solid head-leg fitted against the imperforate ends of the side pieces, and the screw-bolt secured in the head of the leg and having a nut bearing against the corner-piece or brace, substantially as described.

The defenses alleged are non-infringement, prior use, and lack of patentability. The subject of dispute is what is known in the furniture. trade as a "knockdown table." For convenience of shipping and handling tables are constructed with adjustable legs placed therein and the whole crated and shipped. The legs are not attached until they reach the dealer. In this way freight is saved and damage to the tables avoided, while the adjustable legs make it possible to use such tables in flats and houses with narrow halls into which the same table with non-adjustable legs could not be carried.

Decided advance in the art had been made before Welker's patent. It is not necessary to refer to all of it in detail. The examples selected are sufficient to show the comparatively narrow field for advance left when Welker entered the field. Prior thereto we find in knockdown tables a corner-brace connecting the side rails and connection of these parts made with an adjustable leg by a wood-screw which passed through a hole in the corner-brace and was screwed into the leg or by a lag-screw which had a nut-head instead of the flat screw-head of the wood screw. The objection to this method was that when the table was taken apart the screw had to be taken completely out of the leg, and when this was done a few times the hole became enlarged and the tables ceased to be rigid and firm. This objection was in part obviated by the St. John construction, in which an opening of keyhole shape was made in the cross-brace of sufficient size at the lower end to permit the nut of the lag-screw to slip through. When this was done, the leg was pushed upward to its proper place and a rigid connection made by turning the nut. By this method the screw was only given a few turns and it was not necessary to remove it entirely from the table-leg. The next advance showed a method in which there was no abrasion of the leg whatever. In it the interior corner of the leg was slotted, so as to permit an iron hook to slip down and engage with an iron cross-piece in the slot. The outer end of the hook was threaded, passed through a hole in the corner-brace, and by means of a nut with washer the parts were drawn into rigid connection, the ends of the rails seating themselves in bevels on the sides of the legs. This method was embodied in Goedeke's patent, No. 456,377, of July 21, 1891. Subsequent to this complainant conceived the idea of permanently placing a rigidly-connecting hanger bolt in the leg itself and also of attaching the cornerbrace to the side rails by a peculiar form of joint. A hanger-bolt has a wood-screw thread at one end and a nut-thread at the other. It will be noted that the idea of threading the exterior end of the connecting. bolt and forming a rigid connection by a nut was not original with complainant, and his advance in this respect was simply in making the connecting pin primarily rigid as opposed to Goedeke's attaching a hooked bolt to a cross-pin in the leg-slot.

The third claim originally made was:

In a table, the combination with side pieces, a corner-block, and a leg, of a screwbolt rigid with the leg and passing through the corner-piece, and a nut fitted on the screw-bolt, substantially as described.

This claim, which was clearly broad enough to cover defendants' device, was rejected on the Goedeke patent, and because the lag-screw was common in furniture, and in the subsequent proceedings the applicant in effect disclaimed originality in the lag-screw itself, saying:

Applicant regards it as important to use a bolt having a lag-screw at one end to rigidly fasten the bolt in a solid leg and with a metal nut thread on its other end; ' the bolt is not claimed per se, but the organization of the several parts is new.

In all the claims finally granted there was a limitation of longitu dinal segmental kerfs and tenons secured in the kerfs or grooves. In view of these proceedings in the Patent Office and of the prior advance in the art it is manifest the claim should not be expanded to cover constructions which do not embody the elements of "longitudinal segmental kerfs" and "tenons secured in the grooves or kerfs" and in which the joint employed was another and well-known prior form of construction. Indeed, such a construction would be fatal to the patent. The claim being thus construed, it is clear the respondents' device does not infringe.

The question still remains, can the bill be sustained upon the design patent for a table-leg? On November 29, 1893, the complainant applied for a design patent for a table-leg, which was granted January 2, 1894.

The leading features in my design

the specification recites

consists of a table-leg with an upper end of a generally square shape with one of its corners beveled off, and with a projection protruding from the beveled corner.

He had on December 2, 1891, applied for a mechanical patent for a fastening for leg tables which in substance showed in combination the form of leg embodied in the design patent. The complainant testifies that he made his invention in the latter part of the summer of 1891 and began manufacturing the tables in the fall or the latter part of the summer of 1891.

Conceding for present purposes that a table-leg which had been embodied in combination in a mechanical patent issued before the present application was made which is not in itself an article of commerce and which when used in a table, so far as the "projection protruding from the beveled corner" is concerned, is wholly hidden from view and in no way appeals to the eye, conceding, we say, that it can be subject of a design patent, and conceding that a design patent could issue on an application made November 29, 1893, for a design which by the applicant's admission had been perfected more than two years. previously and had been publicly used and manufactured in the fall or latter part of the summer of 1891, the question still remains whether there was any novelty in the design shown. On this point the issue is with the respondents.

Exhibit G, introduced by complainant and admitted by him to have been manufactured by respondents before the device in suit, shows a table-leg with an upper end of a generally square shape, with one of its corners beveled and a projection protruding from such beveled corner. The only difference between it and the design-patent device is that Exhibit G has a fixed nut on the end of the projection. Such being the case, there certainly was no patentable novelty in dispensing with the nut.

Where the two designs are in their prominent features identical, as