(concurring.) In this case I concur in the opinion of the presiding justice. To what he has said in regard to the validity of the Eggleston patent I have nothing to add.
Upon the question of infringement there has been in my mind, during the progress of the case, a similar doubt to that expressed in the opinion of Mr. Justice BROWN; but a careful study of the mechanism of the machines of the respective parties has substantially dispelled that doubt, and upon Ms suggestion I will, as succinctly as possible, state the grounds upon which my conclusion rests.
Certain propositions are clear and undisputed. The clinching anvil of the defendant’s machine is fashioned and operates in the same way as that of the Eggleston patent. The driver is constructed in the same way, has the same groove and recess, and it executes the same function, and in the same way, as that of the complainant The same-is true of the grooves in which the staple is fixed, guided, and driven, and all these elements — anvil, driver, and guiding grooves — in combination, acting upon the ma-, terial employed, operate in the same way, and produce the same; result, in both machines. ■
There remains the feature of the slot in which the shank of thy button is held in position; and the question whether that of the. defendant is substantially the same, and executes the same fuño! tion in the defendant’s machine, as in the combination of the claim of the Eggleston patent, is the only controverted one in the casco Now, it is to be observed that the practical purpose oi the front slot, i, in that patent, is to hold the button shank per-' pendieularly to the crown of the staple, with the upper side of the eye centrally located on the crown of the staple, until the driver should engage the latter by the shoulders, and the eye of the button by its recess, and the relation of machinery and material should be so far adjusted and the moving parts sufficiently started on their way to insure the successful completion of the operation according to the intention of the patent. In the after-part of the operation the slot is a mere clearance way. In so far as the use of the slot, i, is concerned, the thickness of the guide, G-, in the Eggleston patent is not material, and the lower part of if might be widened indefinitely without any impairment of its functions. The thickness of the guide is necessary for the proportions of the staple to be driven, but, after the initial movement of the engaged parts takes place, the slot, i, is not necessary for the purpose of guiding.
The defendant’s machine is undoubtedly a very successful one, and it demonstrates what I have just said, namely, that the continuance of the slot, i, in uniform width down to' the anvil is not at all necessary, and is not a material requirement, and that if, in the afterpart of the movement, a passageway for the shank of the button is afforded, it is enough. Tims the very feature upon which the defendant undertakes to found its defense is by itself proved to be an immaterial one. So, also, the defendant’s *226machine shows the necessity for its due operation of so much of slot, i, as it is found in the Eggleston patent, as is material in the latter.
The patent covers the elements involved in the operation of taking the grip. and starting, as well as the subsequent portion of the movement. Indeed, the former is the vital part of it.
It seems plain, therefore, that the defendant uses every essential element of the complainant’s combination; that the elements operate in practice in substantially the same way, and produce the same result.