sell, or, as the inventor said, "to see how it will take with the trade." It was a trader's and not an inventor's experiment. Such a use does not carve an exception out of the statute. See the following cases: Elizabeth v. Pavement Co., (97 U. S., 126;) Egbert v. Lippmann, (C. D., 1882, 35; 21 O. G., 75; 104 U. S., 333;) Manning v. Glue Co., (C. D., 1883, 306; 23 O. G., 2413; 108 U. S., 462;) Smith & Griggs Manufacturing Co. v. Sprague, (C. D., 1887, 616; 41 O. G., 1037; 123 U. S., 249;) Andrews v. Hovey, (C. D., 1888, 275; 42 O. G., 1285; 123 U. S., 267;) Root v. Third Avenue Railroad Co., (C. D., 1892; 706; 61 O. G., 1947; 146 U. S., 210.) In Egbert v. Lippmann (p. 336) it was said by the Supreme Court: We observe, in the first place, that to constitute the public use of an invention it is not necessary that more than one of the patented articles should be publicly used. The use of a great number may tend to strengthen the proof, but one welldefined case of such use is just as effectual to annul the patent as many. (McClurg v. Kingsland, 1 How., 202; Consolidated Fruit-Jar Co. v. Wright, 94 U. S., 92; Pitts v. Hall, 2 Blatchf., 229.) For instance, if the inventor of a mower, a printing-press, or a railway-car makes and sells only one of the articles invented by him, and allows the vendee to use it for two years, without restriction or limitation, the use is just as public as if he had sold and allowed the use of a great number.

And in Smith Manufacturing Co. v. Sprague (p. 264) this rule as to the character of the testimony was laid down:

In considering the evidence as to the alleged prior use for more than two years of an invention, which if established will have the effect of invalidating the patent, and where the defense is met only by the allegation that the use was not a public use in the sense of the statute, because it was for the purpose of perfecting an incomplete invention by tests and experiments, the proof on the part of the patentee, the period covered by the use having been clearly established, should be full, unequivocal, and convincing.

Finally, it is insisted that the patented invention is substantially different from that manufactured and sold in 1880. In the language of counsel

the bed-bottom used by Smith prior to October 14, 1880, was not the same invention patented by him, but was an imperfect, immatured, impractical, and unsuccessful bed-bottom, and a mechanical and commercial failure, and wholly a different mechanical structure from the one patented, both in its results and construction.

The invention, it may be said in a general way, consisted of a bank of wire springs fastened together at both top and bottom by a series of tie-rods and hooks running laterally and crosswise. These tie-rods and hooks and the upper and lower coils of the springs to which they were attached formed, as it were, two horizontal planes kept apart by the intervening springs. A pressure upon any part of the upper plane was met not simply by the resistance of the particular spring under the place of pressure, but by reason of the hooks and tie-rods was distributed upon the surrounding springs. These hooks and rods were therefore important factors in keeping the springs in place, and thus securing the stability of the bed. In both the bed manufactured and sold in 1880 and that described in the patent the hooks were formed by

an extension of the upper coils of the springs. In the latter this extension was carried round the next lower coil, making what is called a "closed head," while in the former it was not so carried round; but this change does not seem to us a vital one, nor was it apparently so regarded by the patentee. In the specification he says:

The hooks b b are preferably an extension of the upper coil, being carried around the next lower coil and then extended in the form of a hook.

And again:

The hooks b b are the most desirable means for locking the tie-loops C C to the springs; but I do not desire to be confined thereto, as other means can be used to fasten the ties C C to the springs.

The manner of tying was evidently not of the substance of the invention.

In conclusion, it may be said that the matter of obtaining a patent was an afterthought, and one that came too late to be of any avail to the patentee, even if there was in the construction of the bed such a display of inventive skill and such novelty and utility as gave a right to a patent, and of that we express no opinion. The decree is affirmed.

[U.S. Circuit Court of Appeals-Seventh Circuit.]

DAVID BRADLEY MANUFACTURING COMPANY v. EAGLE MANUFACTURING COMPANY.

Decided October 6, 1893

66 O. G., 315.

1. JUDGMENT-RES JUDICATA-PATENTS FOR INVENTIONS.

Where a suit for infringement of a patent is brought against a firm that is a branch of the company that manufactures the infringing device and such company conducts the defense, raising the question of validity of the patent, a decree for complainant is conclusive as to the validity of the patent as against the company conducting the defense, even in regard to alleged anticipations not referred to in the suit, since under the issues all anticipatory inventions might have been shown in defense. (50 Fed. Rep., 193, affirmed.)

2. SAME.

Such decree is none the less conclusivo because it was merely interlocutory at the bringing of the suit in which it is set up as a bar and subsequently ripened. into a final decree.

3. SAME-PLEADING AND PROOF.

Where such interlocutory decree in the first suit was alleged in the second bill, a final decree in the first suit, rendered pending the second suit, may be shown in evidence therein without supplemental pleading, where defendant took no exceptions to the bill, consented to the introduction of the final decree in evidence so far as the same was material, and only objected thereto on the ground that in rendering such decree the court erred through failure to understand the operation of an alleged anticipatory invention.

4. SAME-WAIVER.

Taking testimony in the second suit as to the validity of the patent is not waiver of the bar of the final decree in the former suit where such testimony was taken before said final decree was rendered, since until rendition of the final decree the proceedings in the first suit were no bar.

5. SAME-DECREE ON STIPulation.

In a suit to restrain infringement of a patent and to obtain an accounting, an interlocutory decree was rendered, granting a temporary injunction, and afterward a final decree, making the injunction perpetual, and awarding only nominal damages, was rendered upon a stipulation which provided that such decree should not be a bar to the recovery of substantial damages in a subsequent suit. Held, that the decree was conclusive as to the validity of the patent, the stipulation only affecting its force as an adjudication on the subject of damages. APPEAL from the Circuit Court of the United States for the Northern District of Illinois.

Bill by the Eagle Manufacturing Company against the David Bradley Manufacturing Company to enjoin infringement of a patent.

Mr. L. L. Bond for the appellant.

Mr. George H. Christy for the appellee.

STATEMENT OF THE CASE.

The appellee, on the 11th day of June, 1888, filed its bill in the court below to restrain the alleged infringement by the present appellant of Letters Patent of the United States No. 242,497, dated the 7th day of June, 1881, issued to Edgar A. Wright for improvements in cultivators. The bill, besides the usual averments in such suits, charged that on December, 1887, the complainant (the present appellee)

commenced suit by bill in chancery against David Bradley & Co. in the Circuit Court of the United States for the Southern District of Iowa to restrain the said David Bradley & Co. from infringing the aforesaid Letters Patent; that the said David Bradley & Co. is and was a branch house of the David Bradley Manufacturing Company, the defendant herein, and was engaged in selling the identical cultivators manufactured by the defendant herein; that the defendant herein undertook and managed the defense of said suit against its branch house, employing counsel for that purpose, and conducting the defense, but it conducted the defense in the name of the said branch house, the defendant named of record; that the defendant herein, answering said bill in the name of said branch house, denied the validity of said Letters Patent and any infringement thereof, to which answer a replication was filed by your orator, and thereupon your orator and the defendant proceeded to take and took their respectivo proofs, and, the same having been taken, the said cause was heard on final hearing at the May term of said court at Des Moines, A. D. 1888, And the said court, having considered the proofs and the arguments of counsel, did adjudge and decree that the said David Bradley & Co. had infringed the said Letters Patent, and did enjoin the aforesaid David Bradley & Co. from further infringement thereof, which said decree remains in full force and unreversed; all of which proceedings and things will more fully appear by a certified copy of the records of said court, which your orator is ready at any time to produce in court, as may be directed; and your orator attaches hereto a certified copy of said decree, marked "Exhibit C." And your orator further shows that the cultivators sold by the said David Bradley & Co. were made by the defendants herein under Letters Patent of the

United States No. 243,123, to C. A. Hague, dated June 21, 1881, and No. 270,629, to B. C. Bradley, January 16, 1883, which said patents were issued to the Furst & Bradley Manufacturing Company as assignee of said Hague and Bradley, and passed to the defendant herein, the successor of the said Furst & Bradley Manufacturing Company. The said cultivators as made by the defendant are correctly shown by the drawings in the said Letters Patent to said B. C. Bradley.

The decree referred to in the bill as "Exhibit C" is as follows:

This cause came on to be finally heard upon the pleadings and proofs, and was argued by counsel for the respective parties, and, the pleadings and proofs having been duly considered, it is hereby, this 23d day of May, 1888, ordered, adjudged, and decreed as follows, viz: The Letters Patent referred to in complainant's bill, being Letters Patent of the United States, granted unto Edgar A. Wright, for improvements in cultivators, No. 242,497, and dated June 7, 1881, is a good and valid patent; and that the said Edgar A. Wright was the first and original inventor of the improvements therein described and claimed; and that the said complainant had at the commencement of this cause a good and legal title to said Letters Patent No. 242,497, as averred in complainant's bill; and that the said defendant has infringed the said patent, and upon the exclusive rights of the complainant under the same, as claimed in the first four claims of said patent. And it is further ordered, adjudged, and decreed that the defendant above named, its servants, agents, operatives, and workmen, each and every one of them, be, and they are, perpetually enjoined and restrained from either directly or indirectly making, using, or selling to others to be used, cultivators constructed and operated in the manner and upon the principle described in said Letters Patent of the United States No. 242,497. And it is further ordered, adjudged, and decreed that the complainant recover of the defendant the profits which it has received or made or which have accrued to it by the use or sale of the improvements described and secured by said Letters Patent at any and all times since June 7, 1881, and also the damages which the complainant has sustained thereby. And as it does not appear to the court what said profits and damages are, it is further ordered, adjudged, and decreed that this cause be referred to George F. Henry, Esq., a master of this court, to take and report to the court an account of the profits which the defendant has received, or which have arisen or accrued to it from the use or sale of said improvements, and to ascertain and report the damages which the complainant has sustained thereby since June 7, 1881, from the papers and evidence in the cause and from any evidence which either party may produce before him of the same; and when he shall have taken an account of said profits and assessed said damages he shall return the same to this court for further action in the premises. And it is further ordered, adjudged, and decreed that the complainant on such accounting has the right to cause an examination of the officers, agents, and employés of the defendant ore tenus or otherwise, and also the production before said master at such time as said master may order of the books, vouchers, and documents of the defendant, and that the officers of said defendant attend before said master from time to time within this district as said master shall direct. And it is further ordered that the question of increase of damages, and all other questions, be reserved until the coming in of the master's report. And it is ordered that the parties and master may apply on the foot of this decree for such other and further order of instruction as may be necessary. And it is further ordered, adjudged, and decreed that the complainant recover of the defendant the costs of this suit to be taxed.

The auswer of the defendant (the present appellant) contains the following admissions respecting such charges:

Fourth. The defendant, further auswering, admits that a suit was commenced by the Eagle Manufacturing Company, the complainant herein, against David Bradley & Co.

in the Circuit Court of the United States for the Southern District of Iowa, substantially as in said bill alleged. They admit that said David Bradley & Co. was and is a separate corporation, and in part a branch house or agency of this defendant, and was engaged in selling, with other machinery, cultivators manufactured by this defendant. They admit that said suit was to a certain extent defended by this defendant. They admit that pleadings were filed, and proofs taken, as set forth in said bill. Fifth. This defendant, further answering, admits that said last-named suit was heard at the time and place alleged in said bill, and that a decree was rendered adjudging that said David Bradley & Co. had infringed the said Letters Patent No. 243,497 and that the said David Bradley & Co. was enjoined from further infringement thereof; but this defendant avers that in said cause the finding of the court was against the defendant, largely, if not wholly, by reason of the said court not understanding the operation of the machine shown in one of the patents set up as anticipating the supposed invention of complainant's patent, to wit, the Dalton patent of 1869; and this defendant has reason to believe, and does believe, that if the court had fully understood the machine of said patent, the finding and decree would have been different. Sixth. This defendant, further answering, admits that the cultivators sold by the said David Bradley & Co. were made by this defendant under and in accordance with Letters Patent of the United States No. 243,123, dated June 21, 1881, to C. A. Hague, and No. 270,629, dated January 16, 1883, to B. C. Bradley.

There was given in evidence in this suit the following admission by the defendant:

In the suit pending in the Circuit Court of the United States for the Southern District of Iowa, wherein the Eagle Manufacturing Company is complainant, and David Bradley & Co. defendant, and which suit was brought to restrain the infringement of the Letters Patent in suit herein, the defendant in this cause, the David Bradley Manufacturing Company, employed counsel, took charge of and conducted the defense of said suit in the name of the said Bradley & Co., and paid the expenses thereof. This was done by the defendant herein, the same as it would be done by it for any agent, branch house, or customer engaged in selling implements purchased of the defendants, if sued for infringement of a patent on account of selling such goods.

It also appeared in evidence that in the suit in the Circuit Court of the United States for the Southern District of Iowa against David Bradley & Co., the master, to whom the cause was referred to ascertain and report the complainant's damages, on or before October 15, 1889, reported to the court as follows:

That the complainant has already brought suit againt the manufacturer of the cultivators which were sold by the defendant, electing to recover in full of said manufacturer all profits and damages arising from the sales by the defendant herein as well as other profits and damages, and for that reason will offer no proof of profits and damages in the cause. Accordingly the master reports that the complainant is entitled to recover the sum of one cent nominal damages and costs.

This report was made pursuant to the following stipulation of the parties:

It is hereby mutually agreed by and between the Eagle Manufacturing Company and the David Bradley Manufacturing Company, on this 25th day of September, 1889, as follows, to wit: That said Eagle Manufacturing Co. may cause the master in the case of Eagle Manufacturing Co. v. David Bradley & Company, pending at Des Moines, Iowa, in the United States Circuit Court for the Southern District of Iowa, to return to the court the annexed report; and the action of the court thereon shall not be claimed