I am entirely satisfied, that the true construction of the present patent is, that it is a patent for a combination and for a combination only. The combination, as stated in the-summing up, consists of three things; and it is as follows: “1st. The inclining the standard and landside so as to form an acute angle with the plane of the share. 2d. The placing the beam on a line parallel to the landside within the body of the plough, and its centre nearly in the perpendicular of the centre of resistance. 3d. The forming the top of the standard for brace and draft.” Unless, then, it is proved, that the whole combination is ’substantially used in the ploughs of the defendants, it is not an infringement of the plaintiffs’ patent, although one or more of the parts, as above specified, in the summing up in the patent, may be used in combination by the defendants. The plaintiffs’ patent is for an entire combination of all the three things, and not for a combination of any two of them. A patent for a combination of A, B and C, cannot be technically or legally deemed at once a combination of A, B and 0, and of A and B alone. I think, also, that the plaintiff, by the summing up in his patent, has treated the jogging of the standard behind, as well as the extension thereof to be essential parts of his combination, for the purpose of brace and draft; and not deemed either of them separately, and alone, and independent of the other. I deduce this from the language used in the third part of the summing up, which has a necessary reference to, and is explicable only by the antecedent descriptive part of the specification, as to the forming of the standard “for brace and draft.” The language there used is as .follows: “The top of the standard, through which the bolt passes to secure the beam, is transversely parallel to the plane of the share, and extends back from the bolt to such a distance as to form a brace to the beam, where the after part is pressed down by lifting at the forepart, the share being fast under a rock or other obstruction. The after part of this extension is squared in such a manner, that, being jogged into the beam, it relieves the bolt in heavy draft.” If the reference had been direct and positive to the descriptive part of the specification in the summing up, as by adding after the words, “for brace and draft,” the words “in the manner above mentioned,” or “by the extension and jogging as aforementioned,” there could be no doubt, in my judgment, that both were treated by the plaintiff in his patent as essential parts of his combination for the very purposes stated, viz. “for brace and draft” Now, it seems to me, that this is the necessary interpretation of the summing up, precisely as if the words had been actually used; and that it would not be intelligible without them. I regret, that this is the conclusion, to which my mind has arrived; but I cannot avoid it. I shall still more regret, that the cause should be decided upon this mere technical point, when, if the other points of defence, taken by the defendants’ counsel, are made out by the proofs, there is an end of the cause, independently of this technical construction. For example, if it is established in proof, as the defendants’ counsel insist, that they can establish, that the inclining of the standard and landside, so as to form an acute angle with the plane of the share has been long known before, (for the-defendants certainly have a right to use, what was common before, and as far as it was common,) it will then amount only to this, that, as the defendants have not used the whole combination, but a part or parts only thereof, there *13has been no infringement of the plaintiffs’ patent. So, if there is, in fact, no such cen-tre of resistance, as stated in the specification, or if the formulary for placing the beam •«'ill not place it parallel to that centre of resistance within the body of the plough, the same difficulty in maintaining the patent may arise. However, it is for the parties to say, whether they will proceed in the cause on these and the other points in controversy.
[NOTE. Upon the return of the mandate of the supreme court, an objection was taken by the plaintiffs to taxing the costs of witnesses who personally attended at the trial for their travel and attendance, they being more than one hundred miles from the place of trial. The objection was overruled. Case No. 11,447.]MEM. The defendants declined to proceed; and a verdict was taken for the defendants, with the understanding, that a bill of exceptions would be taken to the decision of the court for the purpose of a final decision in the supreme court. The cause was accordingly carried to the supreme court upon a bill of exceptions, and at January term, 1842, the judgment of the circuit court was affirmed. [16 Pet (41 U. S.) 336.]