YOUMANS, District Judge. This is an appeal from a decree restraining and enjoining appellant,, his agents, workmen, and employés, “from further making, using, or selling, or causing to be made, used, or sold, directly or indirectly, any portable vulcanizing device for tires contained in or embodying the invention patented in letters patent No. 1,057,911 dated April 1, 1913.” The only question involved is one of fact, and that is whether the vulcanizing device patented by appellee was made, used, and sold by appellant prior to appellee’s alleged invention. The decree in the case of Adamson v.

Shaler, 208 Fed. 566, decided in the United States District Court for the Eastern District of Wisconsin was introduced by appellee. He also introduced the testimony of appellant in that case, together with the opinion of the District Judge. The decree in that case, following the opinion, sustained the patent, and enjoined Shaler from using or selling the device which was adjudged an infringement.

The testimony of appellee shows that the idea embodied in the patent assumed shape in his-mind on the 19th day of August, 1911, on which day he made a drawing of the different parts constituting the vulcanizer, the subject of his patent. The appellant introduced testimony'to the effect that as early as August 7, 1911, he had caused vulcanizer castings to be made in practically the same form as those set out in appellee’s application for a patent, and that prior to the 19th day of August of that year appellant had sold vulcanizers embodying all the elements of appellee’s patent.

That testimony is not disputed in any essential particular. It contains no inherent improbabilities. The lower court held that it was bound by the decree of the United States District Court for the Eastern District of Wisconsin, rendered in another case. The parties were entitled to a judgment, based upon the facts as they were developed in this case. Those facts demonstrated beyond a reasonable doubt that the appellant used and sold a vulcanizer embodying all the features contained in appellee’s patent, not only before the patent was issued, but even before the idea became definitely formed in appellee’s mind.

Therefore' the decree of the lower court must be reversed, with -direction to dismiss appellee’s bill. <@^>Eor other cases seo same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes