Lundie v. Sellers Mfg. Co.

290 F. 811, 1923 U.S. App. LEXIS 1875

Opinions

BAKER, Circuit Judge.

Appellant failed in his suit for alleged infringement of patent No. 986,698, March 14, 1911, to Doster for improvements in railway tie plates.

Concerning the alleged infringing tie plates, made and sold by appellee in 1917, the trial court made the following finding of fact:

“This plate differs-in no respect, save size, from the hundreds of thousands of plates made and sold by defendant since 1900.”

Inasmuch as the briefs and the oral presentation of the case, as well as our subsequent examination of the record, failed to convince us that the foregoing finding of fact is- contrary to the truth, it is quite evident that the decree of dismissal must be affirmed, because the Doster patent could not reach back and render unlawful what the Sellers Company had been publicly using for 10 years prior to the Doster application.

The decree is affirmed.