Antonsen

This appeal is from a decree dismissing a bill of complaint charging appellee with infringing appellant’s patent No. 1,-731,967 for improvements in machines for shredding paper and manufacturing paper excelsior. Appellant’s brief states that the three claims alleged to be infringed are 1, 2 and 7, reading as follows:

Appellant’s patent was applied for on August 30, 1926, and was issued on October 15, 1929. Appellee is alleged to have infringed this patent by using a paper shredding machine which was constructed by Claude C. Rafter in 1923, was sold by Rafter to C. A. Wheeler in 1924, was operated by Wheeler from 1924 to 1929, was sold by Wheeler to appellee in 1929, and was. thereafter operated by ap-pellee. Appellee’s machine and others like it had been constructed and successfully operated for more than two years before appellant’s patent was applied for.

Appellant concedes that, as originally constructed, appellee’s machine could not have infringed appellant’s patent, but contends that said machine has been “mechanically changed” by appellee so as to embody appellant’s invention, thus infringing his patent. Specifically, appellant’s contention is that, as originally…