Page:Federal Reporter, 1st Series, Volume 2.djvu/83

76 FEDERAL REPORTER. �J. Toung and John Francis Pastorelli, previously patented, TOthout any new combined resuit being obtained thereby. �On the argument the defence was confined to the alleged invalidity of the patent, the deniai of infringement being aban- doned. If this defence is well founded it must be conceded that the respondent was slow to discover it. His application for a similar patent, (for the one he obtained is, essentially, similar,) and his acceptance of a license from the complain- ant, are wholly irreconcilable with his present position, which seems not to have been assumed until ail other grounds of defence h ad failed. It is not, however, too late to raise this question, and it must, therefore, be decided. �The complainant admits that the lower part of his instru- ment — the shifting device- — is not new, and bases his claim on the combination with this of the upper part — the device for horizontal adjustment; denying that this latter device is copied from Pastorelli's, and asserting that if it were the com- bination of such old devioes in one instrument, as here showa, whereby the lateral and horizontal adjustments are effeoted by one act or process, would sustain the patent. Our judg- ment is with the complainant on both questions. Without elaboration, it is sufficient to say that we regard the upper part of the instrument as materially different from Pastorelli's invention. The points of difference are minutely and intelli- gently stated by the complainant's witnesses, and it would be profitless to repeat them here. While the respondent 's ex- perts pronounce a different judgment, a comparison of the instruments bas satisfied us that they are materially differ- ent. The arched bearing surface, connected with the level- ing screws and supporting the instrument plate, securing a steady, firm rest for the instrument, and utilizing the friction produced by its weight, is alone sufficient to distinguish the complainant's invention from Pastorelli's. �If, however, the complainant's invention consisted exclu- sively in combining the former separate inventions of Young and Pastorelli in one instrument, with the resuit here exhibited^ we would still hold the patent valid. That it required invention to do this, and that great saving of time and labor in adjusting ����