The patentee in his specification thus describes his invention:

My speculum is made of metal and plated in the usual manner to secure a bright interior and smooth surface. In shape it is conical, and has one side slotted through its entire length of chamber. Into such slot H is closely fitted a movable slide, B, having upon its rear end a handle, D, for actuating it. On the side of tube A, opposite the slide, is another handle, D, by which to hold the tube when in use. Around the large end of tube A is a flange or lip, and in the forward end of the chamber is an incline, K, made necessary in specula having closed ends to prevent * the impaction of pile-tumors, enlarged glands, or surplus membrane in the end of the chamber, and thereby enable the operator to withdraw the instrument with safety and ease.

Of the nature of his invention the patentee says:

* My invention consists in the use of a slide extending through the length of one side of the tube and an incline inside of the forward or small end of the chamber, extending from the bottom of the chamber upward and forward to the under side of the slide when in place, to prevent injury to the membrane while withdrawing the instrument, &c.

The claims made in the specification are as follows:

1. A slide in the side of a speculum, extending through its whole length, and used substantially as herein described.

2. The incline in the front end of the chamber, in combination with the tube, slot, and slide, substantially as and for the purposes herein set forth.

3. In cylindrical tubular specula having a slotted side and closed end to prevent the entrance of fæces, the incline in the front end of the chamber extending upward from the bottom and forward to under side of slide, substantially as described, and for the purposes herein set forth.

First. It is clear that the first claim of this patent covering "a slide in the side of a speculum, extending through its whole length," cannot be sustained. Indeed, it is not seriously contended by complainant's counsel that the device covered by that claim is novel. I shall not go into the details of the evidence, therefore, on this branch of the case, but will content myself with the general statement that the testimony of Dr. Warren B. Outen, Dr. Chas. Bernays, and Dr. Charles E. Michel, as well as the testimony of Wm. Grady and Herman Speckler, satisfies me that rectal speculums closed at one end, having a slot in the side

extending the full length of the chamber and fitted with a slide, had been used by the medical fraternity in this country before the date of the alleged invention. While it is true that defendant has not produced any of the speculums that were so in use, and has only produced a model of one made in his own shop since this suit was filed, known as the "Reed speculum," yet I consider this fact not sufficient in itself to overcome the positive statements of intelligent and entirely disinterested witnesses, who had occasion to know the fact whereof they speak, that speculums with slotted sides fitted with slides were in use and to some extent were on sale in this country prior to the date of the alleged invention in July, 1878. The Reed instrument, and possibly all the

instruments of which the witnesses above named have spoken, had glass slides instead of metal; but that fact is not important, as the

SEGALA SPECULUM.

material of which the slide is composed is not claimed as an essential feature of the device. But even if the foregoing view is erroneous, I am furthermore of the opinion that the first claim of the patent was anticipated by "Segala's tri-valve vaginal speculum," which was produced on the hearing and was shown to have been in use in this country since 1860; also, by the "catheter," which was produced on the trial and shown to have been on sale in this country since 1874. (Defendant's Exhibits 17a and 5.) The use for which both of the instruments last referred to were designed is analogous to that in which complainant employs his instrument. Both instruments are tubular. Each has a slot in the side extending the full length of the chamber, fitted with a metal slide, which is intended to be wholly or partially withdrawn (the same as the slide in the rectal speculum) when the operator has occasion to examine or treat the particular organs for the treatment of which these instruments were constructed. In view of the slides shown in Segala's vaginal speculum and in the catheter and the use made of the same it must be held that there is nothing novel in the slide claimed in complainant's patent. He has in this particular matter merely appro priated a device long known and used in surgical instruments fitted for

the examination of certain interior membranes or cavities of the body for the improvement of another instrument adapted to the treatment

CATHETER.

of other interior membranes. Hilton's rectal speculum, an instrument said to have been in use in England as early as 1870, also clearly anticipates the first claim of complainant's patent, and probably the second and third claims. If Hilton's speculum, as contended, was described in a printed publication in England as early as 1876, that fact also invalidates the first claim of the patent under consideration, and most likely the second and third claims. The original printed publication relied upon, said to have been published in London as early as 1876, was not produced at the hearing before the master, but in lieu thereof a volume, entitled "Rest and Pain," published in New York in 1879, which purports to be a reprint of the early English publication, was produced. Some testimony was offered to the effect that application had been made to the English publishers and to other book-sellers in London and in this country for a copy of the original publication, and that they reported the work to be out of print. All of the testimony, however, tending to show that a book entitled "Rest and Pain" was published in London in 1876 and that the work reprinted in this country in 1879 is an accurate copy thereof is of the nature of hearsay; and, as

obiection was duly taken to the testimony when it was produced before.

the master, and was insisted upon at the trial, the objection must be sustained, no matter how persuasive the inference may be that there was a foreign publication which described Hilton's speculum. The latter instrument is accordingly ignored as an anticipation of complainant's invention.

Second. The third claim of the patent is a claim for the "incline" in cylindrical tubular specula having a slotted side and closed end. The particular device attempted to be covered by this claim was anticipated, in my opinion, by a rectal speculum produced by Dr. Mudd (Defendant's Exhibit 18,) and shown to the satisfaction of the court to have been purchased at an instrument store and to have been in use in this coun

try before the date of complainant's invention. The instrument in question is tubular; it is conical in form, has a slotted side, a closed end, and, what is of more importance, an incline at the closed end extending from the bottom of the chamber upward and forward to the end of the slot. It is true that the angle made by the incline with the axis of the tube in the latter instrument approaches more nearly to a right angle than the incline in complainant's speculum. Nevertheless there is a pronounced "incline," and, moreover, Dr. Mudd testifies that one purpose of the "incline" is to protect the mucous membrane from injury