239 F. 727 | 7th Cir. | 1917
This is an appeal from the decree of the District Court dismissing the complainant’s bill for want of equity. The bill charged infringement of claims 8, 10, 19, and 20 of the Monroe reissued patent, No. 13,708, for a road leveling device. It is unnecessary to set out the claims or specifications, as we shall consider but one of the several defenses, the one principally relied upon, that a device embodying the alleged invention was sold by the complainant and was in public use by others more than two years prior to March 24, 1911, when application for the original patent was filed.
3. The complainant himself and his son, admitted that the Pesotum machine, when sold, had all the essential features and operated on the same principle as the machine described in the reissued letters patent. They testified to only one difference alleged to be of importance, namely, that while under the express language of claim 10 and, as contended, by implication in the other claims, a looped chain and pulley constitutes the flexible means by which the scraper bars are suspended from the frame, and by which the vertical adjustment of the bars is effected, these earlier machines had only a single chain. There is, however, sufficient evidence in' the record to justify the conclusion that, contrary to this testimony, the looped chain and pulley were on the machine when sold in 1908. In any event, the change involved no invention; the combination with looped drain and pulley was patentably not to be distinguished from that with the single chain"; it was the usual substitution of an old mechanical device to secure increased power.
“In any action for infringement tire defendant may plead the general issue, and, having given notice in writing to the plaintiff or his attorney thirty days before, may prove on trial any one or more of the following special matters: * * * That it had been-in public use or on sale in this country for more than two years before his application for a patent; * * * and in notices as to proof of previous invention, knowledge, or use of the thing patented, the defendant shall state the names of the patentees and the dates of their patents, * * * and the names and the residences of the persons alleged to have invented or to have had * * * prior knowledge of the thing patented, and where and by whom it had been used."
Decree affirmed.
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