Atlantic Giant Powder Co. v. Parker. scription. By the light of what Nöbel has taught in the patent sued on, much can now be asserted to be seen in what was published before, which no one ever, in fact, saw in it before the original of the patent sued on was taken out. There is no evidence that any one, from the Turly article, or by any method supposed to be described in it, made, before the invention in question, as patented by Nöbel, in the original of the patent sued on, was made by him, the safety powder which constitutes that invention. So far from this, the Turly article starts out with the assertion, that a mass of liquid nitro-glycerine is quite harmless in and of itself, and that its employment has no greater danger than that of common powder. The memoranda referred to by Mr. Varney, in his affidavit, show, in common with the English and French patents to which he refers, nothing more than attempts by Nöbel to mix gunpowder with nitro-glycerine, and then to burn the nitroglycerine by igniting the gunpowder. After that, he discovered that nitro-glycerine could be exploded in a mass, under given conditions, by detonation, and then its liability to accidental explosion in mass by concussion in handling and transportation was observed, and then followed the invention we are considering. In every view the case for the plaintiff is such as to warrant the granting of a preliminary injunction, in this case, and the denial of the motion to vacate the injunction against the Neptune Powder Company. George Gifford and Causten Browne, for the complainant. Charles F. Blake, for the defendants. Monce v. Woodworth. SAMUEL C. MONCE vs. FRANK R. WOODWORTH. IN EQUITY. Letters patent No. 91,150, granted to Samuel G. Monce, June 8th, 1869, for a "Tool for Cutting Glass," held void for want of novelty, the invention having been in public use and on sale more than two years prior to his application for the patent. (Before CLARK, J., District of New Hampshire, May, 1879.) CLARK, J. Two questions are presented in this case by the pleadings and the proofs, for the consideration of the court: first, the question of novelty in the complainant's invention, and, second, the question of infringement by the defendant. I have considered only the first of these, because I am satisfied, upon the evidence offered, that it is decisive of the case. The complainant alleges in his bill that he is "a true and original inventor or discoverer of a new and useful improved tool for cutting glass," which said invention was not known or used by others before his invention or discovery thereof, and that letters patent therefor were granted to him on the 8th day of June, 1869, and that the defendant has infringed this patent. The defendant in his answer denies that the complainant "is the original or first inventor or discoverer of the alleged invention described in said letters patent,or that the said letters. are valid," and alleges that said invention, and substantial and material parts thereof, either separately or combined together as in complainant's patent, were, long prior to the grant and date of said patent, known to and used by various persons named in the answer, and amendments thereto. The invention of the complainant "consists in the use or employment of a revolving steel roller, the periphery of which Monce v. Woodworth. roller is bevelled on both sides, so as to form a cutting edge, and is fitted to revolve in a suitable frame, and attached to a handle for operating the same. "The cutter is made from steel, and is turned smooth and round, and afterwards hardened. The sides are parallel, or nearly so, for a short distance, and then bevelled towards each other so as to meet about midway between the same, thus forming the point or cutting edge. The bevelled portion of the sides should be at an angle of about fortyfive degrees to the axis of the cutter, and, consequently, will be at near right angles to each other. It is not necessary that the angles of the bevelled sides should be at exactly right angles to each other, but, near that angle, or a very little more obtuse, the cutter is found to operate to the best advantage. The cutter can be fitted to revolve upon a pin, or on solid journals at each end. * * * "The frame, near one end, is provided with bearings for the journals, which journals should be a little shorter than the thickness of the sides of the frame, in order that, when the sides are placed against a straight edge or other gauge, the end of the journal shall not come in contact with such gauge. "The handle, C, can be of any desired form, and secured to the frame in any proper manner. I construct said handle like the handle ordinarily used for a diamond tool. * * * "By my invention I produce a tool for cutting glass, which is equally convenient in use as an ordinary diamond, and can be sold at a large profit, for one-tenth of the usual cost of a diamond." The claim made by the complainant is as follows: "I do not claim simply a revolving cutter, but what I claim as new, and desire to secure by letters patent, is, 1. The cutter, A, constructed substantially as shown and described, and for the purposes set forth; 2. The combination of the cutter A, frame B, and handle C, substantially as and for the purposes described." The drawings attached to the complainant's specification show very clearly the invention described. This invention, thus described and claimed by the complainant, and patented to him by letters patent, June 8th, 1869, the Monce v. Woodworth. defendant says was not the invention of the complainant, nor was it then new, but was known and used by various persons long before-that is, the complainant was not the first inventor, as he must have been to sustain his patent. Colt v. Mass. Arms Co., 1 Fish., 108. To sustain his allegation, the defendant introduces a deposition of one Charles L. Morison, who says that in the winter of 1860 and 1861 he was in the business of a photographer at Warren, New Hampshire; that he went there soon after Thanksgiving in 1860, and remained there until after the breaking out of the rebellion in April, 1861, when he enlisted in the Fourteenth Massachusetts, and afterward in the Tenth New Hampshire Volunteers, and was mustered out June 26th, 1865; that, while he was at Warren, in the winter of 1860 and 1861, he purchased a tool for cutting glass; that he used it at Warren, and, occasionally, after he came back from the army, in 1865, until he purchased a diamond. This tool is produced, and is found to embody, substantially and fully, the complainant's invention, and to be adapted to and used for the same purpose. It has the rotary disk with bevelled sides and cutting-edge, the pin on which the disk revolves, the frame within which it is held, and the handle with which it is operated, all combined. This purchase and use was in 1860 or 1861, eight years before the date of the patent to the complainant. The time of the purchase is fixed by the place where the purchaser then was, and his enlistment in the Union army, which he would not be likely to misremember, and the character of the tool, by its production and admission, and he says that the person of whom he bought it had more of them. This evidence, if believed, is sufficient to make it quite probable that the complainant was not the original inventor of the tool claimed by him, and that it was not new at the time of his application for a patent, but that it had been in public use years before. But this witness further testifies, that, while he was at Warren, in the winter of 1860 and 1861, he went twice to Haverhill, to a photographer by the name of Herbert, to get glass for his business, cutting glass there with the same cutter, and that he distinctly remembers seeing a similar tool at Mr. Herbert's Monce v. Woodworth. gallery. This Mr. Herbert was then out of health, and his wife assisted him in his work in the gallery. Mr. Herbert is now dead, but Mrs. Herbert is still living, and her deposition has been taken in this case by the defendant. She testifies that she was married to her husband in September, 1857; that he was then a photographer at Haverhill, New Hampshire, and that he continued his business there until September, 1865; that her husband was out of health, and that she went into his gallery in the spring of 1859, and was there until the business was closed in 1865, and that she learned the business as thoroughly as she could, to help her husband. She testifies further that she was acquainted with Mr. C. L. Morison, who was at Warren in the spring of 1861; that he came to the gallery of her husband to get some glass; that they had none of the size he wanted, and he cut it for himself, with a tool which he had with him. This tool she identifies, and says her husband then had a similar one, which they used in their gallery for cutting glass. The two tools were so similar that she marked that of her husband with the letters H. F. H., and the other with the letter M., she thinks. This last is annexed to her deposition, (defendant's Exhibit M,) and has upon it some marks which may have been put there by her, but they are not very legible. The tool which was used in their gallery, marked "H. F. H.," went with the sale of their gallery, and she has not seen it since. Here, then, are two of these tools for cutting glass, both seen by Mr. Morison and by Mrs. Herbert, one produced and identified by both, and the other similar, and the time of their use fixed as early as 1861. About this there would seem to be no room for mistake, unless the witnesses are wilfully false. Again, Morison says, that after his discharge from the army, in 1865, he again commenced the business of a photographer, at Haverhill, New Hampshire, and occasionally used the tool, which he purchased in the winter of 1860 and 1861. Morris S. Lamprey, another witness, says that he knew Morison in the army, and that, after their discharge, he visited him at Haverhill, and that while there he was in his photograph-gallery and was shown a tool for cutting glass, and saw glass cut with it. He says it went with a wheel, and was |