De Florez v. Raynolds. own negligence, or by relying on a degree of vigilance, study, and accuracy on the part of their several counsel, which they now think was inadequate to their protection. No case has been referred to which, in any degree, tends to sanction the latitude of indulgence which the defendants here seek. Cases are numerous tending in the other direction, of which India R. Co. v. Phelps, 8 Blatchf. C. C. R., S5 ; Hitchcock v. Tremaine, 9 Id., 550; Prevost v. Gratz, Pet. C. C. R., 364, and Livingston v. Hubbs, 3 Johns. Ch. R., 124, are examples." The same principle is found in Webster Loom Co. v. Higgins, 13 Blatchf. C. C. R., 349, in this Court. The case of Cutler v. Rice, 14 Pick., 494, was one of a different kind, and the decision was put on the ground of surprise. The foregoing remarks are based on the assumption that the matter now sought to be introduced would, if it had been in the case, have led to a decision in favor of the defendants. It is well settled, that, in the case of an application, on the ground of newly discovered evidence, to vacate the decree in an equity suit on a patent, and allow the answer to be amended and the case to be retried, the application can be granted only "for the gravest reasons and the plainest proof of the sufficiency of the newly offered evidence to lead the Court to a different result." Buerk v. Imhaeuser, 10 Off. Gaz. of Pat. Off., 907. An examination of the text of the Dupas and De Lignac patents, in connection with the affidavit of Mr. Copeland, leaves it in great doubt whether the plaintiffs' invention is anticipated or whether the defendants' structure is described by Dupas or De Lignac. This is my conclusion, after considering Mr. Renwick's affidavit. The original patent to Dupas refers to a way of opening a box by means of an iron wire, with a looped end, soldered on the cover of the box, but no sufficient or detailed description is given. The addition to the Dupas patent refers to a mode of closing the entire end of a box by applying a thin plate soldered on such end, with a wire ring attached to one end of such plate; and, as Mr. Copeland says, there is also indefinitely described, what appears to be a narrow band of thin metal, with a wire terminating in a ring, the band of metal and the wire being both of them soldered their entire length to the exterior of the box. Mr. Copeland De Florez v. Raynolds. says: "In my opinion, neither the patent nor the addition describes any device with language sufficiently explicit to enable that particular thing to be constructed by a mechanic, with the exception, perhaps, of the plate furnished with a ring and closing the entire end of the box. It does not, in my opinion, describe the invention of the complainants herein." There is no evidence in the case which outweighs this opinion of Mr. Copeland's, and my judgment concurs with his. As to the original patent to De Lignac, it describes the insertion of a band of lead or pewter, easily cut, between the box and its cover. The first addition is of no importance to this case. The second addition is stated, in the title, to consist "of a tin band added to the lead hoop." The text says: "As it has occurred that boxes having lead or pewter hoops have been damaged by shocks with the tin portions of the boxes, I have been obliged to protect the pewter or lead by a more resistant metal. I have accomplished this in slightly modifying my style of hooped boxes, sufficiently, however, to render this addition to the patent already taken deemed necessary. I have replaced the lead and pewter hoops by a tin band of nearly the same width as the latter. Then I have plentifully soldered this band with lead on the under side to the outside of the cover and of the body of the box. Here the lead solder replaces the original hoop of the first patent, in borrowing from the tin which covers it its resistance to shock. I have been careful to keep the tin band about two centimetres larger than the outer circumference of the box, so that the end of the band, which I terminate by a ring or loop, covers about two centimetres of the part first soldered. When the box is closed, on grasping the ring and pulling, the lead will be easily torn, as, in the former instances, it was easily cut." Mr. Copeland's view of this language is, that it says that the band of lead to be protected may be replaced by a thick coating of lead solder applied to the under side of the tin band, which is then soldered to the cover and the box, so that, on removing the tin band, the cover is still united to the box, as before, by the lead or other soft metal, which may be easily cut. Mr. Copeland says: "In my opinion, it neither describes nor suggests the invention of the complainants; and, in fact, in placing the lead or solder under the band, it tended to avoid." Macdonald v. Shepard. does purposely what the complainants inTo say the least, the description is ambiguous. It clearly describes a band of tin lined with lead to close a can. This is not the plaintiffs' structure, nor the de fendants, as was held by Judge Wheeler. The application is refused. W. K. Hall and J. J. Marrin, for the complainants. Edmund Wetmore, for the defendants. HELEN M. MACDONALD VS. JOHN SHEPARD ET AL. IN EQUITY. Held, that the "fluted or plaited border" of the complainant's dress protector, for which letters patent No. 155,534 were granted to her September 29th, 1874, is not an essential part of the invention. The case of Macdonald v. Blackmer, ante p. 78 referred to. LOWELL, J. On this motion for an injunction, the plaintiff's evidence of infringement is somewhat vague; but, on looking at the defendants' affidavits, the exact article sold by them is shown. This article is a skirt protector, within the description of the plaintiff's patent, which was sustained by Shepley, J., Macdonald v. Blackmer et al., 9 Off. Gaz., 746, and afterward held by me mot to be anticipated by the De Forest patent,* unless the "fluted or plaited" border is an essential part of the invention, so that a plain or straight border not gathered into plaits will be without the scope of the patent. This question has caused me much doubt, but, upon looking at the evidence and * Macdonald v. Blackmer, reported ante, p. 78. Ladd v. Tucker Manufacturing Co. the arguments in the principal case, on both sides, I do not think that anything turned upon that part of the description. I understand that the fluting or plaiting is merely a part of the finish, proper and, perhaps, necessary, when the skirt to be protected is made of a certain shape, unnecessary when it is of another shape. It seems to me that both parties took for granted, in that case, that a skirt protector, not plaited, would defeat the plaintiff's patent, if proved to have been made before the date of her invention. I certainly so understood it in deciding upon the questions raised by the discovery of the De Forest patent. The other points presented in the motion have been decided in the case above referred to. A patent for a spring bed bottom, the bars of which are composed of two or more thin bars of wood laid one upon another, and having their bolt holes sufficiently larger in diameter than the bolts or rivets which pass through them, to allow each bar or strip to bend or spring independently of that or those next to it, construed to include strips or bars of wood riveted together more or less tightly. Letters patent No. 191,244, granted to Hermon W. Ladd, May 29th, 1877, improvement in spring bed bottoms," held valid. for an 44 (Before LOWELL, J., District of Massachusetts, June, 1879.) LOWELL, J. The first suit between these parties is for an alleged infringement by the defendant of the complainant's patent No. Ladd v. Tucker Manufacturing Co. 191,244, for an improvement in spring bed bottoms, issued May 29, 1877. The improvement consists in making the crossbars or straps, of which there are usually two in each bed, and upon which the longitudinal slats are supported wholly, or in part, in making these of two or more thin strips of wood riveted together (called by the patentee his compound bar), instead of a single bar of wood, which is said in the patent to be too rigid, or a single bar of steel; which is said to be liable to rust; or a leather strap, which is not rigid enough. The specification describes the compound bar as being composed of two or more thin bars of wood, laid one upon another, and having their bolt holes sufficiently larger in diameter than the bolts or rivets which pass through them to allow each bar or strip to bend or spring independently of that or those next to it. The defendants use the compound or double bar of wood in their beds, but they are riveted together tightly, or, at any rate, no such play is allowed for as to enable the bars to move longitudinally upon each other, for their whole length, when a weight is applied at any one or two points. The holes for the rivets are intended to be made, and probably are made, of such a size that the rivets may be pushed into them readily, but no larger than that. There seems to be no doubt that a compound bar of wood, composed of two bars riveted together, has advantages over a single bar of wood, or a single bar of steel; and I think there is little question that this is due to the fact that the bars do move independently of each other, at and near the place of pressure, and not upon their ability so to move along their whole length. This brings up two questions: Whether the patent can fairly be construed to include two bars of wood riveted together, though not so loosely as the patent and drawings point out; and whether, if so construed, the patent is for anything more than the substitution of one material or known spring for another. I think the patent may in this case be construed to include strips or bars riveted together more or less tightly. The patentee made the first application of this sort of bar, |