Statement of the Case.

The specification explained the drawings as follows: "In the accompanying drawings Fig. 4 is a plan of a frog embodying my improvements. Fig. 5 is a cross-section of the same on line xx. Fig. 3 is a plan of the under side of the frog, showing the continuations of the main point rail with a full-width flange throughout, also showing the riveted extension of the flanges of the channel irons beyond the points.

"It will not be necessary to describe the devices shown in Figs. 1 and 2, as they are fully described in division B of this reissue.

"A A' are the outer or wing rails of the frog, and B B' are the two rails which compose the acute angle or point.

"In place of cutting away both the flanges, of the rails B B', so as to make a joint between the two rails midway between the lines of the angle of the frog, as is common now, and, I may say, usually practised, I continue the flange of the rail B, of full width, intact clear along the junction of the two rails to the point where it strikes the flange of the outer rail, as shown in Fig. 3, which is almost immediately under the point X' of the frog, and I swage up the flange b1 of rail B' on one side, as shown in Figs. 5 and 3, so that it lies over the flange of rail B, this flange of rail B' being cut away angularly on the edge to properly meet the line of the web b2 of the rail B.

"I connect the point rails B B' together by rivets, C, which, while they secure these rails together, also secure pieces of channel iron, D, to said point rails, the channel iron making the separating medium between the point rails B B' and wing rails A A' and giving a means for attaching said wing rails.

"The adjacent flanges of the channel irons of the point may be extended beyond the point and riveted, as shown in Fig. 3.

"With channel iron I attach the wing rails in the manner shown in Fig. 5, the outer flanges of the iron being notched at d for the passage, before the outer rails are attached, of the long rivets C, the bolts E, which connect the outer rails, being placed between the notches d."

Statement of the Case.

The claims were as follows:

"1. A frog having one of its point rails extending with a full-width flange along the junction of the two rails, and the flange of the other point rail overlying the flange of the firstmentioned one, substantially as and for the purpose specified.

"2. A frog composed substantially of the two centre rails BB' joined to form the V-shaped point, united to outside diverging or wing rails by means of two channel or U irons, DD, one wing of which channel or U iron is shaped to fit the web of the abutting rails, combined to form the point of the frog, and upon the other side fitting the web of the wing or diverging rail, respectively, and secured by bolts or rivets passing through the webs of the rails and the sides of the channel bars, substantially as shown.

"3. In combination with the point rails B B', fitted to each other as described, the channel pieces D extending and bolted or riveted together beyond the point of the frog and connecting rivets C, which extend entirely through the two point rails and the channel pieces, substantially as and for the purpose specified."

The only claim involved in this suit was the second, no infringement being alleged of either the first or third. Separate answers were filed by the defendants, respectively, which were, however, in substance the same. The defences were that the reissued letters-patent were null and void, as not being for the same invention as set forth and described in the original letters-patent; that the defendants did not infringe; and that the alleged invention of the complainant was not a patentable novelty, in view of the state of the art at the time of the alleged invention, as shown in certain prior letters-patent specifically mentioned. The answer of Morden, adopted by the others, also set out the following:

"And this defendant, further answering, says, on information and belief, that he is the original and first inventor of a U-shaped plate in combination or connection with a railroad frog, and that said invention was secured to him by said letters-patent of the United States No. 173,804 and No. 205,496, and that by virtue of said letters-patent he has the sole

Opinion of the Court.

and exclusive right to said U shape in a railroad frog, and that, while the complainant is engaged in the manufacture and sale of railroad frogs, he uses a V-shaped plate so secured to your defendant, as before stated, and in said manufacture and sale has copied from defendant's invention in substantial and material parts secured to defendant by his letters-patent aforesaid and in infringement of the same; and this defendant, in this connection, would state that prior to the filing of complainant's bill he, the defendant, filed a bill in this honorable court against said complainant for infringement of his said letters-patent No. 173,804 and said wrongful acts, and praying relief on account of said wrongful acts by the complainant, which said bill is now pending against him in this court. Some days after this defendant filed his bill as aforesaid, the said complainant filed his bill, seeking thereby, as defendant is advised and states, on information and belief, to harass and annoy defendant in his said suit and to delay accounting to defendant for said wrongful acts of him, the said complainant."

On final hearing a decree was rendered dismissing the bill for want of equity, to reverse which the present appeal was taken.

Mr. E. E. Wood (with whom was Mr. Edward Boyd on the brief) for appellant.

Mr. Clarence A. Seward filed a brief for appellant.

Mr. Charles K. Offield for appellees.

MR. JUSTICE MATTHEWS, after stating the case, delivered the opinion of the court.

The question of infringement depends upon the proper construction of the second claim. The proof shows that the defendants did not infringe either the first or the third. They did not form and connect the two rails, making up the angular point as a part of the frog, so that one of the rails would extend unbroken and uncut directly across the path of the

Opinion of the Court.

other, and in itself make a solid end to the point with a fullwidth flange overlapped by the flange of the other rail, thus affording a double thickness and avoiding the cutting away of the flanges, as was customary. If there is an infringement, it consists in the use of the channel irons of a U shape, uniting the two centre rails, forming the V-shaped point of the frog, to each other, and the two thus united to the two diverging rails on each side by means of bolts or rivets passing through the webs of the rails and the sides of the channel bars. The question was disposed of by the Circuit Court in favor of the defendants, as follows:

"The question of fact as to infringement depends upon whether the two centre rails B B' joined together to form the V-shaped point,' mentioned in the second claim, necessarily mean the two centre rails which are described in the specification, or does it mean any centre rails joined together in any manner to form a V-shaped point? The answer to this question seems to me to be found in the complainant's own specification. He says: 'My invention consists, first, in such a formation and connection of the two rails which make up the angular point as that one of the rails extends unbroken and uncut directly across the path of the other, and in itself makes a solid end to the point with a full-width flange, which is overlapped by the flange of the other rail, and thus a flange of double thickness is afforded at a point where strength is particularly needed, and the cutting away of the flanges (as is the usual custom) is avoided entirely.'

"In his description of the drawings he says:

"A A' are the outer or wing rails of the frog, and B B' are the two rails which compose the acute angle or point.'

"And in his description of the mode of constructing his device he says:

"In place of cutting away both the flanges of the rails. B B', so as to make a joint between the two rails midway between the lines of the angle of the frog, as is common now and, I may say, usually practised, I continue the flange of the rail B, of full width, intact clear along the junction of the two rails to the point where it strikes the flange of the outer rail,

Opinion of the Court.

as shown in Fig. 3, which is almost immediately under the point X' of the frog, and I swage up the flange b1 of rail B' on one side, as shown in Figs. 5 and 3, so that it lies over the flange of rail B, this flange of rail B' being cut away angularly on the edge to properly meet the line of the web b2 of the rail B.'

"It will thus be seen that minute directions are given as to the construction of the two centre rails B and B' to form a V-shaped point, and I am of opinion that the two centre rails B and B', described in the second claim, are the rails constructed and joined according to the description given in the patent. The language of the claim is, 'the two centre rails B B' joined to form the V-shaped point,' not any two centre rails joined to form a V-shaped point. The V-shaped point made by extending one rail unbroken and uncut directly across the path of the other, and thereby making a solid end to the point, and with the flange of the rail B' swaged up so as to lie upon or overlap the flange of the rail B, seems to me to be an essential element of what complainant supposed he had invented, and, therefore, the two centre rails B B' mentioned in the second claim refer to and mean the two centre rails which he has particularly described in his specification. The proof in the case wholly fails to show that the defendant forms the V-shaped point in his frog in the manner that complainant forms his point."

The construction of the second claim contended for by the appellant is, that it embodies separately and distinctly that part of the invention which, in the general description in the preliminary part of the specifications, is stated to be "an improved manner of connecting the two rails of the point together and to channel-iron pieces, to which the outer rails are connected," without reference to the manner in which the two rails of the point are formed, so as to constitute the first part of the invention. If this construction be admitted, the second claim would cover every case of two centre rails joined to form the V-shaped point, which were united to outside diverging or wing rails by means of channel irons of a U shape, bolted or riveted, as therein described, without reference