Herrick v. Tripp Giant Leveller Co.

60 F. 80, 8 C.C.A. 475, 1893 U.S. App. LEXIS 2361

Opinion

PER CURIAM.

The objections made by the appellants touching the form of the bill, whether supplemental or original, and those as to the sufficiency of the allegations of the bill, were not raised in the court below, and cannot be taken for the first time in this court.

The court below was right in holding that the first and third claims of the Cutcheon patent were valid, and were infringed by the machine used by the appellants; that the iron last in the appellants’ machine was a mechanical equivalent for the jack of the patent; and that there was no sufficient proof that the stop mechanism, of the third claim was in use by others prior to October 28, 1887, the date of the application for the patent. See the opinion of the conrt below in Cutcheon v. Herrick, 52 Fed. 117.

As only the first and third claims of (he patent were in controversy, the decree of the court below is to be modified so as to extend to those claims only; otherwise, the decree of the court below is affirmed, with costs.