48 F. 679 | U.S. Circuit Court for the District of Eastern Missouri | 1891
(orally.) This is a suit to restrain the infringement of a patent covering a device to prevent horses from interfering. The device consists of a strap, or, rather, a boot, so made as to be buckled around the limb of a horse, just over or above the pastern joint, and to this boot is attached a short pendant consisting of a leather string, on which are strung several small rubber balls. It is claimed that, by the use of this device on a horse that has contracted the habit of interfering, the habit may be cured. The patent creates the presumption of novelty and utility, and there is considerable testimony in the case strengthening the presumption. Several horsemen testify from experience as to the usefulness of the invention in correcting the habit of interfering.
The defense made by the defendant, that is to say, the only defense relied upon, is that of prior use, and want of novelty. It is claimed that a device similar to the patented device, and embodying the same principles, had been in use for 20 or SO years before the dale of the' alleged invention. The defense has not been made out to my satisfaction. It seems to me that, if a similar device had been in use before the date of the invention, (as witnesses claim,) it would have been quite possible for the defendant to have produced a sample of the device, which, as-he claims, antedated the complainant’s patent. Although the defendant took a great deal of testimony to establish prior use, yet he did not succeed in producing a single sample boot that antedated the complainant’s letters. Therefore the defense of prior use and want of novelty has not been established by that kind of evidence and with that certainty which the law requires, and complainant is accordingly entitled to a decree.
