Page:Federal Reporter, 1st Series, Volume 3.djvu/646

EOOEBS V. BBISOHEB. 689 �is any essential change in the specifications; but, oertaialy, there is none which is fairly open to criticism, While the first claim in the re-issue is capable of a broader construction than is warranted by confining it to the real invention of Sternbergh, yet such a construction should nol be given to it, aocording to the rules which prevail. The second claim is a more exact statement of the invention to which the claimant has the exclusive right.* �A decree is ordered for complainant enjoining the defend- ant, and for an aceountiug according to the prayer of the biU, with costs. ���EoGEBS V. Bbecheb and others. (Oireuit Court, N. D. New York. Beptember 15, 1880.) �1. PiTBHT — Presumption OF PsiORiTr. — A patent raises a preaumptlon �of priority of invention, which can only be overcome by clear and sat- isfactory proof. �2. iNïTWNGBMeNT — BviDBNCB. — Evidence held insufflclent in this case to �establish an infringement �R. H. Dmll, for complainant. �Neri Pine, for defendant. �Wallace, D. J. The bUl must be dismissed, because in- fringement is not satisfactorily established. It is proper, however, that the complainant should have the benefit of any conclusions in regard to the defences which have been inter- posed attacking the validity of this patent. It has been con- tended that the complainant was not the first discoverer of the process of making birch beer according to the formula described in his specifications, and an attempt has been made to show that several persons had used substantially the same formula before complainant's application for his patent. �A patentee is entitled to the presumption of priority which his patent affords, and this presumption is only overcome by �*See Taie Loch Mfg. Co. v. Scuvill Mfg. Co. anU, 288. ����