Page:Federal Reporter, 1st Series, Volume 7.djvu/685

HOLMES V. OSBOBN & CHEKSMAN 00. 673 �buckle, or 6f the fastening plate, but are in the same length- wise line of strain. �The proofs in the case were taken in the usual way. At the hearing, the counsel for the defendants was not present, but submitted the case on the proofs without filing a brief. My examination of the proofs leads me to the conclusion that neither the noveltynor the patentability of the McGill patent was successfully attacked, I did not exaniine the evidence in regard to the invention of Samuel G. Talcott, patent«d July 25, 1871, inasmuch as it was not named in the answer, and seasonable objection was made to the testimony, �The main point in the case is whether Exhibit B is an infringement. This question depends upon the construction which shall be given to the clause in the claim, which re- quires that both prongs shall be "in the same, longitudinal line." The plaintifFs contend "that the term 'longitudinal line' means the line of strain, and nothing moro or less, because the only knovm longitudinal line of a buckle is the line of strain." The defendants insist that the term, means the line with reference to the fastening plate, or to the side bars of the buckle. �The shoe buckle which was in the most general use prior to the McGill invention was the one made under letters pat- ent to Calvin Hersome, No. 167,395, dated December 1, 1874. Hersome's fastening plate is the same with McGill's, and bas two prongs, but they are at the base of the plate, on the same transverse line, and are inclined towards each other, and are not bent at right angles from the bottom of the plate. McGill's invention consisted in making the two prongs to bend at right angles from the body of the plate, and to enter the strap through slits eut therein in Unes parallel to each other. �Exhibit B is a slight departure from Exhibit A, but I am of the opinion that the patentee limited himself in his claim to prongs in the same longitudinal line as distinguished from the prongs of the Hersome patent, which are in the same transverse line, and that, either by inadvertence or inten- �v.7,no.6— 43 ��� �