Opinion
Wheaton & Harpham, for plaintiff.
C. H. Parker, for defendant.
SAWYER, J.
I have gone over this subject again as to the cross-cutting into blocks with a trowel during the process of formation. I adhere to the position that I took in the Cases of Perine and Molitor, 7 Sawy. 190. There is in this case a mark on the surface along the line of division between the newly-formed block and the one before formed. The forming of the block against the pavement is according to the specifications in the reissue subsequently disclaimed; but it is claimed that running the marker along the line between the old and new blocks on the surface, after forming the latter, is an infringement. I am not able to take that view. I have gone as far in that direction as I think the patent will justify. I think in that particular it is not an infringement. Counsel for complainant have made a point as to simply marking lines upon the surface of the block with the marker employed. There is one case wherein it was
Id.
Page 736.
held that marking the surface with a fish-line is an infringement. It is insisted by complainant that marking off the blocks on the surface at the time of laying the pavement with a marker about one-sixteenth of an inch in depth is an infringement. I am unable to perceive that the mere running along the surface of that blunt and rounded marker one-sixteenth of an inch in depth, there being no cutting elsewhere, is making a joint. I fail to see that that is an infringement
The complainant is entitled to a decree against the defendant for the infringement by dividing the larger block into smaller ones by cross-cutting in the manner adopted and described in the Cases of Perine and Molitor, supra, and a decree will be entered accordingly. But I am unable to see that running the marker along the line between the old and newly-formed blocks, on the surface only, is an infringement.