Opinion of the Court.

This is a general law applicable to all Territories and other places under the exclusive jurisdiction of the United States. It does not purport to restrict the legislation of the Territories over kindred offences or over the means for their ascertainment, and prevention. The cases in which the legislation of Congress will supersede the legislation of a State or Territory, without specific provisions to that effect, are those in which the same matter is the subject of legislation by both. There the action of Congress may well be considered as covering the entire ground. But here there is nothing of this kind. The act of Congress does not touch upon teaching, advising and counselling the practice of bigamy and polygamy, that is, upon aiding and abetting in the commission of those crimes, nor upon the mode adopted, by means of the oath required for registration, to prevent persons from being enabled by their votes to defeat the criminal laws of the country.

The judgment of the court below is therefore

Affirmed.

NOTE. The constitutions of several States, in providing for religious freedom, have declared expressly that such freedom shall not be construed to excuse acts of licentiousness, or to justify practices inconsistent with the peace and safety of the State. Thus, the constitution of New York of 1777 provided as follows: "The free exercise and enjoyment of religious profession and worship, without discrimination or preference, shall forever hereafter be allowed, within this State, to all mankind: Provided, That the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State." Article xxxviii, 2 Charters and Constitutions; 1338. The same declaration is repeated in the constitution of 1821 (Article vii, Section 3, Id. 1347) and in that of 1846, (Article I, Section 3, Id. 1351,) except that for the words "hereby granted," the words "hereby secured" are substituted. The constitutions of California, Colorado, Connecticut, Florida, Georgia, Illinois, Maryland, Minnesota, Mississippi, Missouri, Nevada and South Carolina contain a similar declaration.

Opinion of the Court.

BURT v. EVORY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS.

No. 164. Argued December 16, 1889. -Decided February 3, 1890.

The claim in letters patent No. 59,375, granted to Alexander F. Evory and Alonzo Heston, November 6, 1866, for an "improvement in boots and shoes was for a manufactured article, and not for the mode of producing it; and, as it was merely a carrying forward of the original idea of the earlier patents on the same subject — simply a change in form and arrangement of the constituent parts of the shoe, or an improvement in degree only it was not a patentable invention.

Not every improvement in an article is patentable, but the improvement must be the product of an original conception; and if it is a mere carrying forward, or more extended application of, an original idea, an improvement in degree only, it is not an invention.

The combination of old devices into a new article, without producing any new mode of operation, is not invention.

IN EQUITY to restrain an infringement of letters patent. Decree in complainants' favor. Defendants appealed. The case is stated in the opinion.

Mr. George D. Noyes for appellants.

Mr. Frederic H. Betts for appellees.

MR. JUSTICE LAMAR delivered the opinion of the court.

This is a suit in equity brought in the Circuit Court of the United States for the District of Massachusetts, by Alexander F. Evory, Alonzo Heston and J. B. Belcher against John W. Burt and Fred. Packard, composing the firm of Burt & Packard, for the alleged infringement of letters patent No. 59,375, issued to said Evory and Heston, November 6, 1866, for an "improvement in boots and shoes."

The bill fiied December 9, 1880, alleged the issue of said letters patent to the plaintiffs Evory and Heston; the assignment of a one-half interest therein to the plaintiff Belcher;

Opinion of the Court.

the granting of an exclusive license to the National Rubber Company to manufacture rubber goods containing the invention patented; and the infringement by the defendants, which was said to consist in their having made and sold shoes and gaiters constructed in accordance with the specification and drawings contained in letters patent No. 205,129, granted to the defendant Packard June 18, 1878, and also other shoes and gaiters, all of which contained the invention in the plaintiffs' patent. The bill prayed an injunction, an accounting and damages.

The defences pleaded in the answer were non-infringement; an anticipation of the plaintiffs' invention by certain English patents dated in 1856 and 1860, respectively; and want of novelty in the invention, because, long prior to the issue of plaintiffs' patent, one Jacob O. Patten of Philadelphia had manufactured and sold shoes constructed on the same plan as described in that patent. Issue was joined, proofs were taken, and on the 3d of February, 1883, the Circuit Court entered a decree sustaining the plaintiffs' patent, and adjudging that there had been an infringement of it by the defendants; and accordingly referred the case to a master for an account of profits, and for the determination of damages, if any, by reason of such infringement. Evory v. Burt, 15 Fed. Rep. 112. October 13, 1884, the master filed his report, in which he found that the defendants had made and sold 41,297 pairs of shoes which infringed the plaintiffs' patent, but that, as they made no difference in price between shoes containing the invention of the plaintiffs and those without it, they therefore made no profit from such infringement; that Belcher was the only one of the plaintiffs who was engaged in making or selling shoes, and, as he made and sold less than 1000 shoes containing the invention in the patent, he was not damaged by reason of defendants' infringement; but that, as the evidence showed that the plaintiffs had an established royalty of three cents a pair, for shoes made under that patent, and had issued licenses and sold stamps to persons desiring to use their patent, the licensees paying such royalty, the defendants should pay the plaintiffs that royalty on the number of shoes made by .

Opinion of the Court.

them containing the infringing device, to wit, 41,297 pairs, that is, the sum of three cents a pair, or $1238.91. Exceptions were filed to this report, but they were overruled by the court, and on the 29th of January, 1886, a final decree was entered confirming it and assessing damages in the sum of $1238.91, that being the amount of the royalty found due by the masAn appeal from that decree brings the case here.

ter.

The material parts of the specification of the plaintiffs' patent and the drawings are as follows: "Our said invention consists in a novel mode of constructing shoes and gaiters, whereby the ordinary elastic goring at the sides and the

Opinion of the Court.

.

tedious lacing up at the front are both dispensed with, while at the same time the tops will expand to receive the foot, and fit neatly and closely around the ankle when the shoe is on, being also water-tight to the extreme top of the shoe. Figure 1 represents a side elevation of our invention; Fig. 2 a plan or top view of the same; and Figs. 3 and 4 represent detached views or patterns of the several parts. Similar letters of reference in the several figures indicate like parts of our invention. A represents the front of the shoe, and has attached to its rear edge a, as shown, a gore flap (marked D). B represents the back of the shoe, and has attached to its front edge b, as shown, a corresponding gore flap (marked C). The front and back are sewed together at those parts of their contiguous edges marked a' and b', and the flap C is arranged upon the flap D, bringing their corresponding edges c and d upon each other, which are then sewed together, the two flaps thus arranged forming a double extension gore upon each side of the shoe, which readily expands to admit the foot, and which may then be folded forward over the instep, and be secured by a buckle or knot, or by a suitable lacing, as desired. We do not claim broadly, for an extension-gore flap inserted in the ankle of gaiter shoes, for this is fully covered by the broad claim of Samuel Babbit's patent, issued March 7, 1865, to which our patent will be subject; but our mode of construction is an improvement upon that, and all the other modes since patented, in the following particulars, viz.: First, it requires less stock in its construction, and is therefore cheaper than those in which the gore is inserted in the heel; second, it is neater in appearance, and, being adjustable to the ankle, it may be fitted even where there is a variation in the size of the shoe, thus rendering it more available in the construction of shoes for sale at wholesale; third, it avoids the wrinkle in the heel in Babbit's construction of shoes, wnich, being exposed to the friction of the leg of the pantaloon, soon wears into a hole; fourth, by giving expansion forward to the vamp in front of the ankle it admits of the more easy introduction of the foot, and allows a neater fit than is attainable when the gore is in the heel. What we do claim as our invention, and