[1] The record shows a persistent and disingenuous purpose on the part of the defendant to appropriate the invention of the complainant. It also shows an emphatic recognition of the value of the invention by the courts of this circuit.
The patent in controversy is No. 970,656, granted to Frank F. Smith September 20, 1910, for an improved pivot and pivoting mechanism for use in connection with fireproof windows whose sashes and frames are made of sheet metal. The District Court for the Southern District held this patent valid and-infringed in an action against the defendant. This court affirmed the decree and a master has stated the damages to be ,$2,464.98. The defendant Yates, after the decree against him, transferred his business to a corporation known as the John W. Yates, Incorporated. This transfer was adjudged by the District Court to be in fraud of Yates’ creditors and a retransfer to Yates’ trustee in bankruptcy was ordered. The District Judge refers to Yates as a persistent infringer. His defenses to this action are that the patent is invalid because of a prior use by Bogenberger, that the new device does not infringe- and, if it does, the device is made not by John W. Yates, but “John W. Yates, Incorporated,” a corporation.
The court held that no new defense is presented in the present controversy. It is argued that the new stop which the so-called corporation is putting out is not an infringement because of some inconsequential changes. All this is thoroughly treated in Judge Augustus Hand’s opinion and need not be reconsidered. The addition of the word “Incorporated” to the defendant’s name does not enable him to escape the charge of infringement. The transfer to the corporation was adjudged a fraud upon creditors and the defendant was properly ordered to transfer all the property to the trustee in bankruptcy. The denial of the motion to reopen the case to receive evidence of the so-called Bogenberger prior use was within the discretion of the court. The device in controversy is the mechanical equivalent of the device which this court held to be an infringement of the Smith patent. We are unable to find any proof in the record showing that Yates owned or was licensed under the Bogenberger patent. Mere assertion is not proof. We are not required upon an appeal from an order of this character to discuss hypothetical questions not warranted by the proof. We do not find any proof that the defendant was licensed under the Bogenberger patent or that he now owns that patent. We have, however, examined the model of Bogenbergcr’s apparatus submitted to *796us, together with his patent, and after such examination consider it clear that Yates has neither made nor imitated Bogenberger’s device, but has put out in the face of an injunction something which, within the narrowest range of mechanical equivalency, is the plaintiff’s patented mechanism.
[2] It is admitted that where after decree and injunction a defendant’s machine is reorganized by more than merely colorable changes, it is the better practice, if infringement thereby is asserted, not to proceed as for contempt, but to require plaintiff to bring a new action or seek a supplemental injunction. Crown Cork, etc., Co. v. American Cork, etc., Co., 211 Fed. 650, 128 C. C. A. 154. No such point arises here. Yates’ present apparatus is scarcely a colorable change from that which was enjoined; a finding which requires that the order under review be affirmed with costs.