
    THOMPSON et al. v. N. T. BUSHNELL CO.
    (Circuit Court, D. Connecticut.
    June 23, 1898.)
    Patents--Preliminary Injunction — Saws.
    Tbe Fowler patent, No. 328,019, for a saw to cut metal, with a tough pliable steel blade, highly tempered as to its teeth only, held valid and infringed.
    This was a suit in equity by Henry G. Thompson and others against the N. T. Bushnell Company for alleged infringement of letters patent HSTo. 328,019, issued October 18,1885, to complainants as assignees of the inventor, Thaddeus Fowler.
    John K. Beach, for complainant.
    Phiilipp, Phelps & Sawyer, for defendant.
   TOWNSEND, District Judge.

The parties herein are practically the same as in Thompson v. Jennings, 21 C. C. A. 486, 75 Fed. 572. In said action the decision of the circuit court which dismissed the bill was affirmed by the circuit court of appeals. The circuit court in its opinion held that the patent- was valid, but that the defendant did not infringe. The circuit court of appeals held that, “unless the patent in suit can be limited so as to cover only a band saw or a hack saw, there appears to be no escape from the conclusions expressed in the opinion of Judge Lacombe in the court below. It cannot be thus limited, in view of its unequivocal language.” In accordance with this suggestion, complainant filed a disclaimer so as “to include only hack saws and band saws.” The issues herein relate to certain hack saws sold by defendant. I am satisfied, from the expert testimony and from demonstrations at the hearing and upon practical tests with said exhibits, that many of these saws unquestionably infringe the patent as construed by Judge Lacombe. “They are either hardened to the base line of the teeth, or so near it that the variance from the distinctive fractional tempering of the patent was trivial.” It is immaterial that defendant claims said infringement is accidental. If, as it now contends, the saw of the patent in suit is impracticable, and tbe flexibility which results from the invention of the patent in suit is a disadvantage, the defendant will not suffer from the effect of an injunction which will operate to prevent its making such defective saws in the future, accidentally or otherwise. It is unnecessary now to discuss the elaborate and ingenious arguments of counsel as to the effect of the former judgment or of said disclaimer. The new evidence of alleged prior use is not only discredited by the failure to produce exhibits and by its antiquity and indefiniteness, but because it fails to show that by these uses the new results of the new invention of the patent in suit were produced. Let a decree be entered for an injunction and an accounting.  