Page:Federal Reporter, 1st Series, Volume 2.djvu/907

900 FEDERAL REPORTER. �tion is decisively furnislied by the testimony of Robert C. Totten. He waa a machinist and founder, and testifies that he made annealing carriages for the defendants or their pred- ecessors as early as July 13, 1866, which had iron rods em- bedded in them, and that he subsequently made several others of the same kind for the same persons. To use his own words: "The general shape of the boxes was like the drawing in exhibit ' McNish's Patent,' and the bars of iron were cast in the sides of the box, as shown in this drawing. The bars were placed in the space in the moulds before cast- ing, and then the iron was cast on them." The object of the introduction of the bars was stated to him by Mr. Everson, and is thus explained by him: "The ordinary boxes were found to break crosswise, and it was proposed to obviate this by the use of these wrought-iron bars." This is an exact statement of the nature, object and mode of construction of the invention described and claimed in the patent, and leaves no room for doubt that the device made by Mr. Totten and thàt covered by the patent are the same. And there is just as little room for doubt that the boxes made by Mr. Totten were used by the firm of Everson, Preston & Co., and that the advantage expected from their peculiar construction was realized in their use. �After some time Everson, Preston & Co. ceased to use annealing boxes, as described by Mr. Totten, and it is argued that such use is to be regarded as an unsueeessful experi- ment. We cannot concede this. The device used was com- plete in its construction, and it was used sufficiently to dem- onstrate its practicability. Indeed, in view of the proofs of the completeness and utility of the device described in the patent, the conclusion is irrresistible that a prier device, exactly similar to it and used in the same way, must have been alike successful in practice. It was clearly a complete and useful invention, and the abandonment of its use by Everson, Preston & Co. furnishes no warrant to the patentee to claim it as the first invenfor. �The bill is dismissed, with costs. ����