the spindle. In the Manning Case, the court, speaking of this patent, said:

"The best reference offered by the defendants is unquestionably the patent granted to John F. Allen, October 14, 1884, for a portable drilling machine. The application was filed December 3, 1883, and there is no satisfactory testimony establishing the date of the construction of the Allen machine prior to the date of the application."

1

This brings me to a consideration of the defendant's asserted new evidence to establish the prior use of the Allen device. It is attempted to be shown that in the autumn of 1882 and in the spring of 1883, prior to the date to which the patent in suit was antedated, Allen built and successfully operated a portable drill embodying the combination of claims 1 and 2. An identical construction is not produced. A model made according to the Allen patent by Mr. Keller, patentee of the infringing drill, as an exhibit, is in evidence. The invention of Allen does not appear to have gone into general use. I have carefully read the testimony upon which it is claimed that the date of the Allen construction is prior to the date of the application. I am not favorably impressed by the testimony of Allen upon this point. Considered in connection with his former testimony and the testimony of his father in the Manning Case, it has not the weight claimed for it. A witness. who has had ample opportunity to narrate his connection with a transaction, and apparently fully relates the same, and thereafter, in another litigation, gives a different narrative in relation thereto, or one from which an entirely different inference may be drawn, is not usually to be depended upon for accuracy of statement. The testimony of such a witness should be carefully scrutinized before it is accepted as true. Even where it is uncontradicted, it should not be accepted if there are reasonable grounds for believing that it is unreliable or mistaken. may be that the testimony of Allen does not come within the range of testimony which is thus characterized and described by the courts. Certainly the testimony of one who concededly withheld material and important testimony upon a former trial ought to be convincingly supported by other satisfactory evidence before such testimony first offered at a later trial involving the same issue is accepted. The rule in such case imposes upon the defendant the burden of proving the earlier device, and also to establish prior use and invention by proofs clear, satisfactory, and beyond a reasonable doubt. Barbed Wire Patent, 143 U. S. 284, 12 Sup. Ct. 443, 36 L. Ed. 154. In the Manning Case, defendant's exhibit No. 7 was called to the attention of the witness Allen, and, in reply to questions put to him, he said that the drill was made in his father's shop, but he could not tell positively when it was made. Upon this subject the following is a portion of his examination:

*

"Q. I call your attention to defendants' Exhibit No. 7, Allen rotary drill. Do you recognize this exhibit? A. I do. Q. State, if you know, when drills of the same type were made? A. I know positively that drills of that type were made in the latter part of December, 1885. Q. How do you fix this date? A. I fix the date by the timebook. Q. Please examine said timebook, and read the entries referring to this or similar drills? A. 'Monday, 28th, three rotary drills; Tuesday, 29th, ten rotary drills; Wednesday, 30th, five rotary; Thursday, 31st, two and one-half rotary.' That ended that book. I have not got any of the books which followed that. Q. How do you fix the

year in which these entries were made? A. By the date in front of the timebook, '1885.' "

The witness gave other testimony giving reasons for knowing the month and the year in which the entries were made in the timebook. In respect to this subject he further testified on cross-examination as follows:

"Q. You are not able to say just when the rest of the work on that drill was done? A. Some of it was done in January, 1886. Q. But just when the last work was done on that drill you are unable to say, are you? A. I am not able to say just when. Q. What has become of the timebook which would show that? A. I don't know what has become of it. I have tried to find it, but can't. It is lost, as far as I know. Q. Has this timebook been in your possession from the date of the entries to the present time? A. Yes; at the works."

John F. Allen, the inventor of the Allen drill, and father of the preceding witness, was also called as a witness in the Manning Case, and these questions were put to him.

"Q. State whether or not you ever made a drill constructed in accordance with said patent? A. Yes. Q. When? A. I made at least two in 1883."

He was asked to give a brief general history of what he did in the manufacture of drilling machines up to 1888. Nowhere in his testimony is found an intimation that the drill described in the patent was completed prior to the date of application, or that it was in prior public use. It further appears in this case from the testimony of Mr. Allen, son of the patentee, that rotary drills were made in 1882 and 1883 in his father's factory, and the dates thereof, as heretofore stated, are again fixed by timebooks which were then used. Though by such timebooks it appears that work on rotary engines for drills was done during the period stated, it nevertheless is not entirely clear that such labor was performed upon a portable drilling machine. The record in the Manning Case and the interrogatories and replies above mentioned show that both the witness and the patentee had in that case full and free opportunity to state the facts with reference to an earlier period of invention than that stated in the patent. No claim was then made by any one that a perfected portable drilling machine was completed in the year 1882, early in 1883, or prior thereto. It is true that other evidence is found in the record tending to corroborate the earlier conception of the Allen invention and its practical usefulness. Such evidence, however, is based wholly upon the unaided recollections of the witnesses. It does not conform to the strict rule that evidence to carry back the date of the invention shall be clear, satisfactory, and beyond a reasonable doubt. My conclusion is that the involved claims are entitled to the breadth of scope and construction heretofore given them in the Manning Case, and substantially concurred in by the Circuit Court of Appeals in the Franklin Boiler Works Co. Case. Claims 1 and 2 are not limited to the specific structure shown in the patent. The journal bearing in the defendant's drill extends beneath the engine cylinder; being attached to the cylinder, and operated identically with the Moffet journal bearing, which, as has been stated, projects from the side of the cylinder, and is integral therewith. In both devices under consideration, the boring spindle is united with the engine shaft by gearing, practically the same. The defendant also uses a feed screw

and sleeve nut, which appears as a force feed for the drill in infringement of claim 2. The latter element, as has been said, is old and familiarly known, yet when it is used in combination with other elements in complainant's device, which are new and perform a new function, then such combination of elements is entitled to the protection of the patent laws.

Let a decree be drawn in the usual form, sustaining the claims of the patent and directing an accounting.

NEW JERSEY WIRE CLOTH CO. v. BUFFALO EXPANDED METAL CO. et al.

(Circuit Court, W. D. New York. June 28, 1904)

No. 16.

1. PATENT-INFRINGEMENT-FIREPROOF FLOOR CONSTRUCTION.

The Orr patent, No. 471,772, for a fireproof floor and ceiling construction, is entitled to a narrow construction, only, in view of the prior art, limiting it to the precise structure shown. As so construed, it is not infringed by the construction shown in the Golding patent, No. 529,724.

2. SAME EVIDENCE TO NEGATIVE INFRINGEMENT-PROCEEDINGS IN PATENT OFFICE.

The fact that an application for a patent was considered in the Patent Office in connection with a prior patent, and several claims rejected thereon, creates an unusually strong presumption that the structure of the patent as granted is substantially different from the earlier patent.

In Equity. Suit for infringement of letters patent No. 471,772, for a fireproof construction, granted to William Orr March 29, 1892. On final hearing.

Phillip, Sawyer, Rice & Kennedy and Tracy C. Becker, for complainant.

John E. Brandegee, Geo. Quintard Horwitz, and Ernest Howard Hunter, for defendants.

HAZEL, District Judge. This is a bill in equity to restrain infringement of United States letters patent No. 471,772, granted to William Orr March 29, 1892, and assigned to complainant, for improvement in fireproof construction. The application was filed April 13, 1891. Its object is "to provide an improved floor and ceiling construction which shall avoid the use of these brick arches and similar constructions, thus reducing the weight of the structure, while at the same time all the fireproof qualities of the brick and tile construction are retained." The specification describes a fireproof floor and ceiling construction consisting of a number of light metal bars or suspenders, placed in series between the floor beams, and transversely thereto. The iron bars are styled "suspenders" in the patent, and they will be so styled in this opinion. The suspenders vary in width according to the strength of the floor desired. They are supported at the ends by the floor beams, but do not perform any like functions. When the suspenders are firmly attached in series to the top of the beams, a suitable portion of concrete of unequal depth is placed upon them. Concrete ribs are formed in

series which create and inclose air spaces extending from beam to beam. The concrete web also extends from beam to beam, and is integral therewith. The union of the floor beams and the suspenders with a portion of concrete or plastic material forming a web, and a series of horizontal ribs or arches between the beams, supported by the suspenders, produces a light, though strong and compact, fireproof floor construction. To emphasize the importance of the functions of the suspenders, the following is quoted from the specification:

"The suspenders may be very light, but they must be of sufficient width to give the cement rib resting thereon sufficient area, so that the crushing strength of the cement will about equal the tensile strength of the bar, and both the bar and cement rib must have sufficient strength to support with a sufficient factor of safety the load required."

Different forms of suspenders, dependent upon the character of building and weight of floor desired, may be used. For example, in residences where light floors are practicable, the concrete web is thinner, and the suspender comparatively lighter, than in buildings where the floors are designed to support great weights. In the latter case the cement web is thicker or more substantial, the ribs closer, and the suspender heavier and stronger. To provide suitable floors for different constructions, as already indicated, modified forms are clearly pointed out in the patent and accompanying drawings. The preferred form of structure shows the suspenders firmly hooked over the top flanges of the floor beams, extending downward very close to the side of the beams, and then horizontally across from beam to beam on a level with their lower side. Other constructions referred to in the specification show a horizontal suspender bent at its ends to rest flatly upon the lower flanges of the beams, and in another form (Fig. 10) an archshaped suspender is employed. The ends of the arched suspender do not rest on the flanges of the beams, but are connected with a horizontal part, B, of the suspender, in such a way as to prevent straining. Five claims, viz., the first, third, fifth, sixth, and ninth, are alleged to be infringed by the defendant. The first claim broadly covers the combination in these words:

"(1) The combination with floor beams, or a series of suspenders supported by said beams, and extending from beam to beam, and a body of cement or other plastic material forming a web and a series of ribs extending from beam to beam, said web lying above said suspenders, and the ribs extending downward from said web, and being supported by the suspenders, substantially as described."

The others differ from the first only in the following particulars: Claim 3 embraces a "woven wire or perforated sheet metal extending from beam to beam, and forming a bond" with the concrete. Claim 5 has the additional feature of "a ceiling of metallic lathing," which is supported by the beams. Claim 6 includes the words "arched suspend

Claim 9 is fairly representative of the first. It describes a fireproof floor construction supported by the suspenders, having air spaces extending from beam to beam between adjacent suspenders. It is contended by the complainant that the claims are not specifically limited, and hence they should be given a liberal construction, in accordance with the reasonable import of the patent. Stress is placed upon the slender concrete surface of the structure, in connection with its great

strength, which, according to the complainant's proof, is owing to the fact that the suspenders afford support to the floor and ribs, and therefore have a tendency to resist the downward thrust of the weight above. Accordingly a strong floor is provided, the supporting structure itself being light. The complainant further contends that a fireproof floor such as described in the patent may be more quickly constructed, and at less expense, than the tile floors mentioned in the specification. The proofs of the defendant go to the validity of the patent in view of the prior art. Infringement is denied. An examination of the record shows that the patent must be restricted to the precise structure shown. The defendant's structure appears to be functionally different, in that the thrust from weight upon the floor is not downward, and rather tends to a lateral strain upon the lower flanges of the beams. The specification of the patent in suit, after in detail describing the structure, says:

"The floor load is lessened to one-half that of brick-arch floors, and the side thrust against the beams in the ordinary brick or tile arch construction is converted into very nearly a dead weight upon the beams."

It evidently was the intention of the patentee to construct suspenders which would support the entire load without straining the beams or exerting great pressure upon them. The conformation of the suspenders employed in the different forms of construction described in the specification negatives any other intention. Figure 9 of the drawings. does not change this view, for the reason that the structures shown in Figures 10 to 13 of the patent would seem to emphasize the point that the weight is supported by the suspender, and that, when an arched suspender is employed, the structures shown by Figures 10 to 13 are preferred, to secure the desired result. The arched suspenders described in the specification are certainly so constructed that the load upon them, as already suggested, is in a very large measure borne by the suspenders, and not by the beams. The expert witnesses do not agree as to the asserted disclosures of the prior art, nor as to the scope of the patent in suit.

Inasmuch as the court is of the opinion that the scope of the patent is narrow and circumscribed, it is thought unnecessary that the validity of the patent be passed upon. The state of the art shows that it was not new to make fireproof floors, with arches of metal resting upon the flanges of iron beams. Such arches are found in the patents of Gilbert, No. 64,659, dated May 14, 1876; Snead, No. 91,375, dated June 15, 1869; Cheney, No. 137,345, dated April 1, 1873: Hoyt, No. 162,822, dated May 4, 1875; Hoyt, No. 172,470, dated February 15, 1876. The object of the invention of some of the patents cited to anticipate complainant's patent was to construct a light and strong, as well as economical, fireproof floor. It appears further that to use a sheet of woven wire or perforated metal in the manner set out in claim 3 of the patent in suit was also known to the art. On this point reference is made to the Hayes British patent of 1889. There "a sheet-metal lathing, formed with upturned flanges * * * curving over the flanges of the beam," is a marked feature of the invention. Moreover, the feature, as shown, was already patented by the same patentee. In his patent in 1890 a metallic lathing is shown, extending from beam to beam, se