arch is not an arch geometrically, nor is it the curved arch or the flat arch of architecture; the latter of which is a span composed of wedge-shaped members, which support each other, under end pressure, by translating the vertical into horizontal or diagonal thrust. The "arch" of this patent is merely a ceiling construction. And it seems to us impossible that the brick masons and steelworkers who construct a fire-proof sky-scraper or a small vault in a bank should forget or overlook the commonly known facts of their trades when they set up a furnace. But if an outside and independent suggestion were needed that "ceiling construction" was transferable to furnaces for coking breasts and heat deflectors, Upson, Pearce, and Boileau had already furnished it.

Appellee insists, however, that an important contribution to the art of furnace building was made, in this: that the girders rest upon the side walls, that the depending beams abut against the front wall, and that the rear ends of the beams are free, whereby damaged bricks may be removed by stripping out a row or rows of bricks at the free ends of the beams. If the O'Meara and Calvert ceiling were placed in an offset or alcove or archway in a building, where the girders were upheld by side supports, and the depending beams were free at one or both ends, it is obvious that the bricks could be removed by stripping them out at the free ends of the beams. If the beams in the furnace were obstructed at both ends, and the fire-bricks formed a ceiling that came in contact with fixed obstacles on four sides, there would not be even a "new use" of the O'Meara and Calvert combination. The combination consists of the collocation of the three elements-girders, beams, and fire-bricks. It is an inevitable characteristic of the combination that the bricks may be removed whenever and wherever the combination is placed so that one end of the beams is free. But if an outside and independent suggestion were needed that such is the inevitable characteristic of the O'Meara and Calvert combination, Boileau had already shown how to remove from a furnace grooved fire-bricks from the free ends of beams supported by a girder.

True, Green and Gent were the first to couple O'Meara and Calvert's idea of the three-membered construction with Boileau's idea of the removability of the bricks from the free ends of the beams; but so was McMillin the first to apply a windlass engine to a hand capstan (Morris v. McMillin, 112 U. S. 244, 5 Sup. Čt. 2185, 28 L. Ed. 702); and so was Kitselman the first to join the diamond mesh feature of a stationary wire fence machine to the walking feature of a machine that wove a wire and picket fence (Kokomo Fence Machine Co. v. Kitselman, 189 U. S. 8, 23 Sup. Ct. 521, 47 L. Ed. 689). As Mr. Justice Bradley said in Atlantic Works v. Brady, 107 Ú. S. 192, 2 Sup. Ct. 225, 27 L. Ed. 438:

"To grant a single party a monopoly of every slight advance made, except where the exercise of invention somewhat above ordinary mechanical or engineering skill is distinctly shown, is unjust in principle and injurious in its consequences."

The decree is reversed, with the direction to the Circuit Court to dismiss the bill for want of equity.

DIAMOND DRILL & MACHINE CO. v. KELLEY BROS. & SPIELMAN. (Circuit Court, E. D. Pennsylvania. July 5, 1905.)

1. PATENTS-INFRINGEMENT ACTIONS-BILL OF REVIEW-NEWLY DISCOVERED

EVIDENCE.

In a suit for infringement of a patented belt fastener, newly discovered evidence of a witness, corroborated by two others, that he had made and used a belt fastener, the exact counterpart of that patented, some four years prior to the application for the patent relied on, and that his use was persisted in intermittently for two or three years, was sufficiently material to reopen the case and allow the filing of a supplemental bill in the nature of a bill of review, though no sample of such prior fastening was produced, and it was not regarded as of sufficient merit to induce the witness to continue its use.

2. SAME DILIGENCE.

Where defendants had been in conversation with a witness from whom they proposed to obtain newly discovered evidence establishing a prior use of a patented device as a defense to a suit for infringement, but claimed that such witness had been only sought out in order to learn about a certain bed spring, and, except as he volunteered information, there was no means of knowing that he had any information with reference to such prior use which he did not then disclose, this evidence will not be regarded as accessible to the defendants by the exercise of due diligence.

In Equity. Petition of defendants for leave to file a supplemental bill in the nature of a bill of review.

Horace Pettit, for petitioners.
William C. Strawbridge, opposed.

ARCHBALD, District Judge.1 By the former opinion of this court (120 Fed. 282) the patent in suit was sustained, and infringement found. And this, upon appeal, was affirmed. (C. C. A.) 123 Fed. 882, 129 Fed. 756. The case now comes up, upon petition of the defendants, for leave to file a supplemental bill in the nature of a bill of review, in order to present newly discovered evidence which it is claimed establishes a prior use of the patented device; permission to reopen the case for this purpose having been given by the Court of Appeals. 136 Fed. 855.

The finality of litigation and the stability of judicial decision both require that conclusions which have been reached as the outcome of legal proceedings in which the parties have had full opportunity to be heard shall not be disturbed except where it is necessary to prevent a miscarriage of justice. The defeated party is always disappointed, and there is a natural temptation to try by some means to regain the place that has been lost. Applications, therefore, to reopen the case in order to permit the introduction of further evidence, in the hope of effecting a change, are not looked upon with favor; the parties being required to present all the evidence which they have at the original hearing, including that which with the exercise of reasonable diligence was within their reach. The new evidence suggested in any case must in consequence not only have

1 Specially assigned.

138 F.-53

been unknown to the party, but practically unattainable, and must also be so clear and convincing that it is not only calculated to bring about a different result, but that there is little question as to its doing so. This is a familiar rule, which it requires the citation of no authorities to support. The only question is whether the defendants have brought themselves within it.

As this is a preliminary motion, any expression of opinion upon the proposed proofs, except so far as it is necessarily involved in the granting or refusing of the application, is out of place. Neither is the evidence here which will be produced to contradict and possibly overcome them, so that it is only their prima facie character that is passed upon. This is to be borne in mind with regard to whatever may be said. It is sufficient, therefore, for the present, to note that, if the testimony of Mr. Maier is believed, a wire belt fastener, the exact counterpart of that in suit, was made and used by him at the works of the Trenton Spring Mattress Company, at Trenton, N. J., as early as 1885, some four years prior to the application for the patent on which the complainants rely, and that this use was persisted in intermittently for upwards of two or three years. Nor is this left to rest on his statement only, but is confirmed by three others, who substantially agree with him, both as to the character of the device, and the time and place of its use. It is true that there is nothing in the way of records or material exhibits to back this up. No sample of the fastening, for instance, has been produced from among the appliances of the shop, and we have nothing therefore but the memory of these witnesses. Nor was the device apparently regarded as of sufficient merit to induce a continuance of its use after the removal of the works from Warren street. Notwithstanding this, however, it can hardly be questioned that, if the facts which have been referred to had been produced at the former hearing, the validity of the patent would have been put in serious doubt.

Whether this evidence could have been produced before, with the exercise of proper diligence, is a more difficult question, and constitutes the real weakness of the present application. It is certainly somewhat remarkable that although the defendants, through their counsel, were in touch with Maier, and interviewed him with reference to his bed-spring fastening, nothing was developed as to the similar device which he now says he made use of in his shop for uniting belt ends. The explanation suggested is that he was only sought out in order to learn about his bed spring, and, except as he volunteered it, there was no means of knowing that he had any information outside of this. The real question, then, is whether an inquiry directed to that ought to have been prosecuted, and whether the defendants were remiss in not making it. With some hesitation, I am not prepared to say that they were. The extent of the witness' information was known to himself alone, and there was nothing to intimate that he had any upon the general subject of the patent, or to prompt an inquiry along that line. And that he did not prove more communicative is not to be laid at their door. Tending, as it did, to destroy the patent of another, he may have

thought that he ought not to say anything beyond just what he was asked about. At all events, he did not; and without this the defendants could not know, except by a chance inquiry, for neglect of which they are hardly to be held.

There being enough in this to reopen the case, there is no occasion to discuss the other evidence, with regard to the means shown to have been in use for upwards of 20 years for fastening together the ends of wire cloth belts, employed for taking up and carrying the pulp in paper machines. Nor whether this was not accessible to the defendants, inquiry being bound to be made in all arts where belts of any kind were used. Neither is it necessary to consider whether the present application was made with sufficient promptness after obtaining the information which is relied upon. The Court of Appeals felt satisfied upon the subject, and, even if the question is to be regarded as an open one, there is no reason why a different view should be taken here.

The motion for leave to file a supplemental bill in the nature of a bill of review is allowed.

1. PATENTS-Suit against PATENTEE FOr InfringemeNT-ESTOPPEL.

In a suit for infringement by an assignee of a patent against the patentee, the defendant is estopped to insist upon a narrow construction of the patent which would render it valueless.

[Ed. Note.-For cases in point, see vol. 38, Cent. Dig. Patents, § 183]

2. SAME-INFRINGEMENT-SCREW-DRiver.

The Wood patent, No. 671,039, for a screw-driver, held infringed on a motion for a preliminary injunction.

In Equity. Suit for infringement of letters patent No. 671,039 for a screw-driver granted to George E. Wood, April 2, 1901. On motion for preliminary injunction.

A. M. Wooster, for complainant.

Bartlett, Brownell & Mitchell, for defendant.

PLATT, District Judge. The defendant Wood assigned the patent in suit No. 671,039 to the plaintiff for value. He denies infringement, which is the only issue open to him in the circumstances, and attempts to justify because he makes the goods against which infringement is alleged under patent to Garrity, No. 723,573. The plaintiff's contention is that the invention of the patent in suit resides broadly in the provision of means integral with the shank, and fitting into the outer end of the handle, for performing the double function of preventing rotation of the shank, when the screw-driver or other kindred tool is in use, and protecting the handle from splitting when struck; that claim 1 is for such a monopoly, and that the prior art discloses no attempt to acquire a like

monopoly; and that defendant's screw-driver, if made within the terms of Garrity's patent, invades that grant. In other words, that the square-cornered head and the correspondingly square-cornered recess of the Garrity patent are the equivalents of the laterally extending wings and the transverse slot of the Wood patent.

The defendant insists that both by the terms of the patent and by the prior art the plaintiff is confined to the exact construction set forth in the Wood patent, and obviously, if this be so, there is no infringement.

Whatever the result might be in another situation, an examination of the doctrine of estoppel, as applied in such cases, satisfies me that the plaintiff is entitled to a liberal construction of his patent, as against this defendant.

The interpretation which the defendant put upon his own invention, while acting with the plaintiff, would seem to preclude him from adopting a different interpretation now that he has voluntarily put himself in a position of antagonism. He is estopped from demanding such a construction of his own patent as will render it valueless. It is well settled that he cannot deny its validity, and it ought to be equally well settled that he should not so demean himself as to strip his own invention of its value. He cannot narrow its scope to the point of destroying its usefulness.

He was responsible in every way for the present product of the plaintiff, and took part as an officer of the plaintiff company in warning off trespassers, and thereby became a strong factor in producing the acknowledged acquiesence on the part of the purchasing public which for so long a time comforted the plaintiff. It creates a bitter taste in the mouth to find him now acting as the assignee of his brother-in-law, the Waterbury plumber, in an attempt to show the plaintiff that its fancied security was only an idle dream.

Let an injunction issue.

PERRY v. RUBBER TIRE WHEEL CO. et al.

(Circuit Court, S. D. New York. April 27, 1905.)

DEPOSITIONS-RIGHT TO COMPEL ANSWERS TO QUESTIONS.

The general rule is that witnesses whose depositions are being taken under Rev. St. § 863 [U. S. Comp. St. 1901, p 661], should be required to answer all questions which may possibly be material, subject to their right to be protected in their constitutional privileges.

[Ed. Note.-For cases in point, see vol. 16, Cent. Dig. Depositions, § 141.] On Motion to Require Witnesses to Answer Questions. Charles W. Stapleton, for the motion.

Wm. R. Page, opposed.

TOWNSEND, Circuit Judge. The counsel herein are engaged in taking depositions under section 863, Rev. St. [U. S. Comp. St. 1901, p. 661]. The plaintiff and her husband have refused to an