34VF .r>·’ -   -· ·FEDE1'|»AL·_1}EPOBTEB·· ·. »    » i
theisettlement involving acbnsent, decree sustaining.,the2Gates,·patent.t
4 Subsequently complainant commenced suit against Nightingale. All the
‘ priornprooeedings andproof were stipulated into this case, and on Hnal
hearing the patent wassustained., Mide, 32 Fed. Rein.-171. On the
strength of , {these, cases » suit zwas {begun, and on moti0n.,,r.an. injunction
pendemfe lite was issued Novembe;;.27,¥1887, as tothe Michigan Lubri—
cator Co., and; subsequently; at motion wasmade, andpresented, and is
now re-presented,,for aninjunctton pendente lite as to Grace and Parshall. .
, The defendants here reliediuppn-,_aiiidavits toestablish the_pwblr3c {useand,
sale for more than two years prior to the date of the application for the
Gates pmm,~loft1ubri¤ator¤ readeand»se1‘d, by defendant B¤rsh¤11.Whi<2h,
it is alleged, involved the patentable subject-matter of the Gates patent.
Parshall took out a patent involving the subject-matter of this contro-
versy, in 1879. Defendants’ contention isthat the testimony establish-
ing the statutory defense of prior publu use and sale by Parshall in 1869
has, in'lthe:prior‘proceedings; *lSeen.sulppressed, for the reasonstbat, if
e developed, not only would the Gates patent be defeated, but also that the
Parshall patent of 1879 would bewlefeated, lnrt that now, priority of in-
vention having been established in favor of Gates, Parshall for the first
time presents {the testimonyas tothe public use and sale~of· his device in
1869.
AO'. .L'Hwnt,` J'. H.,Raymortd, and;,Edm·u.nd Wetmore, for complainant}
~ John- B, Omliss and Rodney Mason, for Michigan Lubricator Co. _
Wells   Leggett, for Graceand Parshall. l * v   *·~ —
Jackson, J;, (orally after slating— thefacts as above.) *From the facts that
have been,presented_ in thelpreceding adjudications, anedjalso in this new
evidence,the,diHi_cultyfgrows,'hf course, out of the facts, if 'they be facts,
conuectedwith Baugh’s useof the machine in 1869-1870. It is per-
fectly clearthat-under__pth‘e_se previous ladjudicationsrithe Phillajos Case,
the Burlingame Case, andthe Mghtingale Case,——the ;plaintiH`s, on the
original applications, presented to the court a prima facie case,¥—a clear
pri·ma“,fae€ex·ease, which*-warrantedthe issuance of the preliminary in-
junction. They had the presumption growing out of the issuance of the
patent._¤u·§the·.29th of April, »187—3,r in favor of Gatespand that presump-
tion hasébeenrsupported by three adjudications. It is .true that in the
Phillips  allthe questions were not presented that could have been
presented, orthat were presented in the subsequent litigation. ·We come
now tokthe Burlingame Case, linewhich Mr. Parshall- is called as a witness.
In that·oase.Mr. Parshallftestifies, and sodoes Mr. Willetts, the pattern
maker, that they used. two ofthe: machines ofthe character indicated in
the exhibit toyhis testimony; in, thatcase, and-in the form designated by,
a model now, before thexoourt. ~ Those two machines were used, one at
the coppebworks and theother at the Champion flour-mills. It is per-
fectly clear,. under the statements of the witnesses themselves in that
case, thatthe courts were justified inarriving at the conclusion that ma-
chines thus introduced atvthe. Champion millsand at the coppeiwworks
weretimpcrfect and defective, audtwere not acompleted invention. I