38 FEDERAL nmroirrsn.
duced into theiirst case, have led to a different decision. See Bailey
Wringlng-machine Oo. v. Adams, 3 Ban. & A. 96. Upon this motion
I must accept the uncontradicted affidavit of the defendant as true.
He swears to the existence of two facts, either of which is sufficient
to defeat this application. (1) That he has been in the open, noto-
rious use of the flexible and elastic foundation strips, in the construc-
tion; (2) that the owners of the patent have, since 1878, known of
his use of the mechanism now complained of, and have taken no steps,
except making idle threats, to restrain him. This laches is accounted
for, and attempted to be excused, by the statement that the owners of ·
the patent were quarreling among themselves, from the date of the
patent until 1882, and that since that latterdate they have been _
constantly engaged in establishing their rights against other in-
fringers. This is not satisfactory for such a long delay. If the com-
plainant and those whom he represents could, for any cause, refrain
from proceeding against open infringers for more than seven years, it
will be no hardship for them to wait for a few months longer for an
injunction, if it shall appear, on final hearing, that one should be is-
sued.
SHIRLEY v. Maven.
(Ulrcuit Oourt, E. D. New York. June 11, 1885.)
1. Pgmwrs ron Invmwrrons-inrnovensmr IN Lam- C1mmmrs—Dnrmor1vm
1lTh/[ere a patentee has not claimed as much as he is entitled to claim, he is
bound to discover the defect in a reasonable time or lose his right to a reissue.
2. S.um—Rn1ssun—ExrANs1oN.
‘ Where there is a substantial expansion in a reissue of letters patent, so as to
include a. combination not included in the original, such reissue is void.
3. SAME—L.¤.M1· Cnrmnmx-Rmssum Vorn.
Reissued patent granted to Frederick S. Shirley, assignee of Robert R. Crosby,
May 8, 1877, the original patent having been granted to Crosby, July 14, 1868,
held void. `
In Equity. On motion for temporary injunction.
J. Edgar Bull and T. Frank Brownell, for complainant.
Miles B. Andrus and Wm. B. Lynes, for defendant.
Bnnnnror, J. This is a motion for a preliminary injunction to re-
strain the defendant from making lamp chimneys which, as the plain-
i tiff asserts, infringe a patent reissued to him as assignee of Robert
- R. Crosby, the inventor, on May 8, 1877, the original patent having
been granted to Crosby, July 14, 1868. The validity of the reissue
is disputed by the defendant, upon the ground that the claim of the
original patent has been expanded in the reissue, and the reissue hav-
ing been obtained nearly nine years subsequent to the issue of the
original, must be held void upon the authority of Miller v. Bridgeport