Q. 13. State how long you have used the above-described machine for putting metallic moldings on combs in the manner described.-A. Since September, 1867

Q. 14. Can you fix the date by any positive evidence besides your memory -A. I can. I have referred to the time-book of the men who made the machines, and find the machine to have been finished at the date named, and remember that it was put into immediate use.

Q. 15. Has it been used ever since ?-A. It has been in continued nse ever since without any alteration.

Q. 16. Have you ever made any effort to keep its use a secret, or has it always been open to the inspection of any person who might come into your shop?-A. I have made no effort to keep it secret, but the shop has always been open to visitors, and any one could see the machine who cared to look at.

The drawing so produced, marked C, shows a machine substantially like that of the plaintiff.

Yingling testified that he was, at the time of testifying, in the em ploy of Noyes, and, since 1868, or for about fourteen years, had used a machine like that shown by the drawing C, above referred to, for putting metallic moldings upon combs.

Noyes had stated, on cross-examination, in answer to a question as to who made the machine he had described as made in 1867, that William Knopp and his son were in his (Noyes's) employ as machinists at that time, and worked some on it; that his time-book, kept at that time, which he had consulted, contained a record of the fact that Knopp and his son so worked on the machine; and that the machine was built during the first week in September, 1867. In rebuttal, the plaintiff examined as witnesses William Knopp and three persons named Newman, Coyle, and McAuley.

Knopp testified that he was employed in Noyes's comb factory from 1865 to 1869, and was familiar with the kind of machinery manufactured by them during that time for use in their comb factory. He then proceeded:

Q. 5. In September, 1867, or at any other time, did you make machinery for putting metallic backs on combs ?-A. I did.

Q. 6. Without going into details as to the kind you did make, I will ask you whether, in September, 1867, you made, or helped to make, a machine for putting moldings on the backs of combs, where the molding is held in a groove which fits it closely, and the same groove has an extension enough smaller to fit the comb closely, and in this extension there slides a "follower," which is fitted to butt against the end of the comb. At the extreme opposite end of the groove there is a slot across the groove, containing a key or stop, to prevent the molding from sliding through the groove. The follower is attached to a suitable slide or lever, so that, when a molding is laid in the larger part of the groove and the comb in the smaller part, the comb is prevented from bending by the walls of the groove, and can be forced tightly into the molding by the action of the follower and of the connecting parts?— A. I do not remember that I made anything of that kind.

Q. 7. Did you at any other time make such a machine ?---A. I don't remember that I did.

Q. 8. Please examine the comb I now hand you and state whether Noyes Bros. & Co., at that time when you worked for them, and since, manufactured a comb with metallic back similar to this one; and, if so, state how said metallic back was put on this one. (Comb marked Exhibit A shown witness and offered in evidence by so

licitor for complainant.)—A. They manufactured a comb in general appearance similar. The metallic back was put on and fastened to the comb by compression. The back was compressed in a vise to make it fit in a groove in the comb tightly. The molding was placed on the comb by hand and then put in a vise and the molding pressed up tightly against the comb.

Q. 9. Do you remember working on or making machinery for compressing the molding on the comb, as above described ?-A. I do.

Q. 10. Is the mode above described the only way Noyes Bros. & Co. put metallic moldings on that kind of a comb-A. It is.

Q. 11. You was familiar at that time with the mode employed by them for putting moldings on combs. was you?-A. I was.

This testimony of Knopp is very inconclusive. He merely testifies, thirteen years after he had left Noyes's establishment, that he does not. remember that he made, fifteen years before the time when he was testifying, a machine like that described in question 6 put to him. The drawing produced by Noyes was not shown to Knopp.

The testimony of Newman, Coyle, and McAuley amounts to nothing. Although they were employed in the comb factory of Noyes at the time they gave their testimony, in December, 1882, and had been employed there, Newman from 1862, Coyle for fourteen or fifteen years, and McAuley for about thirty years, neither of them was shown the comb A, nor the molding B, nor the drawing C above mentioned, nor was a distinct question put to either of them as to the use of a machine like that described in question 6 put to the witness Knopp.

The only difference between Noyes's device and that of the plaintiff is that in Noyes's the stop holds the molding stationary while the comb is forced into the molding by the action of the follower. But its action is substantially the same as that of the stop in the plaintiff's patent, which prevents the molding from slipping through the groove.

The case falls within the principle applied in Pennsylvania Railroad v. Locomotive Truck Co., (110 U. S., 490,) and cases there cited.

As to the third claim, it is not infringed, because, in the defendant's apparatus, no washers are used for adjustment.

The decree of the circuit court is affirmed.

1. SCHILLINger-ConcrETE PAVEMENTS-REISSUE.

Reissued Letters Patent No. 4,364, granted May 2, 1871, to John J. Schillingez, for an improvement in concrete pavements, as it stood after the filing of the disclaimer, (March 1, 1875,) was not open to the objection that it was not for the same invention as that of the original Patent No. 105,599, dated July 19, 1870.

2. SAME-INVENTION CONSTRUED.

Thus sustained and construed the invention is held to consist in dividing the pavement into blocks, so that one block can be removed and repaired without injury to the rest of the pavement, the division being effected by either a permanent or a temporary interposition of something between the blocks.

3. INFRINGEMENT.

The use of a bottom layer of coarse cement, and placing on it a course of fine cement, and dividing the upper course into blocks by a trowel run partially or wholly through the upper course while it is plastic, in a line coincident with the joints between the sections in the lower layer, accomplishes the substantial results of Schillinger's invention, in substantially the way devised by him, and is within the patent as it stands after the disclaimer.

4. SAME-FIRST CLAIM.

The first claim of the reissue, as it stands after the disclaimer, is infringed, because the defendant's pavement is a concrete pavement, laid in detached blocks 01 sections, substantially in the manner shown and described in the specification of the reissue, the detached blocks in the upper course bring the equivalent of the detached blocks or sections of the Schillinger pavement.

5. SAME SECOND CLAIM.

The second claim of the reissue is infringed, because the temporary use of the trowel or cutting-instrument, to divide the upper course into blocks, is the equiv alent of the tar paper of the Schillinger patent, the cutting making a division which controls the cracking, and facilitates the taking up and relaying of the blocks or sections in the upper course "without disturbing the adjoining sections," and the trowel being interposed to effect its object during the process of forming the pavement on the spot where it is to remain.

6. MEASURE OF DAMAGES.

The rule that "when the entire profit of a business or undertaking results from the use of the invention, the patentee will be entitled to recover the entire profits, if he elects that remedy," applied.

APPEAL from the Circuit Court of the United States for the Northern District of Illinois.

Mr. L. L. Bond and Mr. E. A. West for the appellant.

Mr. George W. Hey for the appellees.

Mr. Justice BLATCHFORD delivered the opinion of the Court.

This is a suit in equity, brought in the Circuit Court of the United States for the Northern District of Illinois, by John J. Schillinger and Elmer J. Salisbury against J. B. Hurlbat, founded on the alleged infringement of Reissued Letters Patent No. 4,364, granted to John J. Schillinger, May 2, 1871, for an "improvement in concrete pavements," on the surrender of original Letters Patent No. 105,599, granted to said Schillinger, July 19, 1870. The defeuses set up in the answer are the invalidity of the reissue, want of utility in the invention, want of novelty, and non-infringement.

The bill was filed in October, 1882. Salisbury having died, the suit was, so far as his interest was concerned, revived in March, 1884, in the name of Olive G. Salisbury as administratrix. The interest of Salisbury was that he was the exclusive licensee under the reissued patent for the State of Illinois. Issue having been joined, proofs were taken on both sides, and on the 15th of May, 1884, the court entered an interlocutory decree, adjudging that the reissued patent was valid, that the defendant

had infringed it, and that the administratrix of Salisbury recover profits and damages from the 26th of August, 1882, the date of the license to Salisbury. The decree also ordered a reference to a master to take an account of the profits and the damages.

The master took proofs, and on the 30th of September, 1884, filed his report, to the effect that between August 26, 1882. and May 20, 1884, the defendant had laid 70,909 feet of pavement by the use of the plaintiffs' patent, for which he should be held to account; and that the plaintiffs had shown an established license fee of 5 cents a square foot, or $3,545.45, as damages, which amount he reported. He also reported that the defendant's profits had amounted to 4 cents a square foot. The defendant excepted to this report, and, on a hearing, the court held that the evidence did not establish a fixed license-fee as a royalty, and that the proper amount of recovery was the defendant's profits, at the rate of 4 cents a square foot, or $2,836.36; and it entered a fiual decree, on the 16th of November, 1885, for that amount. The defendant has appealed from that decree.

The specifications, claims, and drawings of the original and the reissued patents are as follows, the specifications and claims being placed in parallel columns, the parts of each which are not found in the other being in italic, and the drawings of the original and the reissue being the same:

ORIGINAL.

Be it known, that I, JOHN J. SCHILLINGER, of the city, county, and State of New York, have invented a new and useful improvement in Concrete Pavements, and I do hereby declare the following to be a full, clear, and exact description thereof, which will enable those skilled in the art to make and use the same, reference being had to the accompanying drawing, forming part of this specification, in which drawing

Figure 1, represents my pavement in plain view. Fig. 2 is a vertical section of the pavement.

This invention relates to pavements for sidewalks and other purposes, and consists in combining, with the joints of concrete pavements, strips of tar-paper or equivalent material arranged between the several blocks in such a manner as to produce a suitable tight joint and yet allow the blocks to be raised separately without affecting or injuring the blocks adjacent thereto.

REISSUE.

Be it known that I, JOHN J. SCHILLINGER, of the city, county, and State of New York, have invented a new and useful Improvement in Concrete Pavements, and I do hereby declare the following to be a full, clear, and exact description thereof, which will enable those skilled in the art to make and use the same, reference being had to the accompanying drawing, forming part of this specification, in which drawing

Figure 1 represents a plan of my pavement. Fig. 2 is a vertical section of the

In carrying out my invention I form the concrete by mixing cement with sand and gravel or other suitable material to form a plastic compound, using about the following proportions: Oue part, by measure, of cement; one part, by measure, of sand, and from three to six parts, by meas ure, of gravel, with sufficient water to Fig. 1

Fig. 2.