673 and others.
and others v.
(Circuit Oowrt, D.
Where a greater number of persons have to be employed In the operat"on of a machine formerly in use than in a patented machine, this tends to pl'ove that the machines are not alike.
SAME-OMISSION OF SoME ELEMENTS AND ADDITION OF OTHERS.
Where, by the omission of some of the elements of such former macHne, and the addition of other elements not useful In the old machine, an improvement results, such improvement may be patentable.
Infringement of a claim is not escaped by the employment in a combination of a movable board, which only affects two-thirds of a certain result, when it depends on the thkkness and stability of the board whether the whole operation is or is not copied.
A machine need not be antomntic to be patentable. Improvements in any tool or implement used by hand man art or industry urI! patentallJe.
In Equity. Wilmarth II. Thurston and Benj. F. Thur8ton, for plaintiffs. Walter B. Vincent, for defendants. Before LOWELL and COLT, JJ.. LOWELL, J. This bill is brought upon patent No. 213,323, granted the plaintiff Coupe, March 18, 1879. It describes a mode of st.retch· ing and reducing to a uniform thickness what is known in the trade as raw-hide leather-that is,a hide which has been stripped of its hair, and has been softened and brought to a state in which is very soft and flabby and much wrinkled, but has not been tanned. The patentee says:
.. My invention consists in a combination of mechanical devices wl'lich are capable of producing, in connection with hand manipnlation, the desirable results of thoroughly stretching the hides and rendering them. of evell thickness in all parts."
The specification describes a table or beam over which. the hide is to pass, and which is breast high, in order that the workmen may conveniently use it; then the hide passes over a bar or stretcher, which is somewhat arched or crowned, in order to stretch the hide transversely; it then goes to a roller to which it is damped and over which it is slowly wound. The workman accelerates or retards the passage of the hide by liftv.16,no.6-43
ing it up or pressing it down, and in this way the thicker parts seroller than do the thinner cure a greatex'longtitudinal pull parts, and the bar, by its shape, tends to stretch the hide laterally as it passes from the table to the roller. ,The table and the bar have a lateral yield or adjustment to accommodate hides of different sizes. .The £.rat alaim is for the comblnation of the. table, the stretcher, and the. roller; the second, for the lateral yield in the table ,and stretcher; the third, for "the improvement in the method of stretchwhic,hconsists in dragging the hideo'ver a stretcher, and ing also 9ver a}riction table or beam by means of a revolving rolle;r, to which the hide is secured as described, whereby,' as the hide is passed over the table or beam, the thi<;ker portions of the hide are detained 'ormade tq,lag, by pressure thicker portions to, increase at such thicker .portions the friction between the hide anll, the table, substantially as specified." Therewas a mij,chine for stretching leather for belts well known to the to some the which was .made by modifying a splitting machine. Mr. Coupe did not, in fact, make his improvement upon this stretcher, but it is much more like his machine than anythingelsewhich.preceded it. This old machine was used upon hard tanned leather, to adapt it to be made into belts for machinery, fOl' which purpose it must be 'stretched with great power, eighteen or twenty thousand pounds to the square inch, in order to take' out of it all possibility of further stretching. This was done by passing the leather through a trough 'which was brought up against the sbetcher-bar with the force we have mentioned. Since the plaintiffs' method and machine have become known, Mr. Davis, an accomplished worker in leather, has tried with some success an enlarged copy of the old belt-leather stretch;er to do the work of the plaintiffs' machine. He is obliged to use a greater number of men or bars to tend the machine and pre.. vent the pressure from ruining the hide, which, of itself, tends to prove that the machines are not alike; and we have no doubt that if the plaintiffs" devices are considered an improvement upon this old machine, they embody a patenta,ble improvement. They omit the means for producing the pressure, and add a table not useful in the old machine, but which, in the new machine, enables the workmen to exel't sufficient pressure. The defendants at one time used a machine which closely resem· bles that of the plaintiff. At present they have one which works
COUPE! V. WEATaERaEAD.
with a trough and har, like the old belt stretcher; with the a.dditioll of a table over which the leather passes, and which enables the workmen to spread out and manipulate the hide; upon the,edge,of this table is a piece of metal with grooves spreading outward, and, these grooves have a tendency to stretch the hide laterally, or at least to prevent it from wrinkling; that is, to keep it to its lateral stretch, which seems to be much the same thing. The slot and bar are so placed in relation to each other that a hide is not squeezed between them, as in the old belt stretcher; but, in the legitimate attempt to avoid infringement of the plaintiffs' invention, which the defendants intended to copy as far as they lawfully might, because they had failed to come to terms with the plaintiffs for a ,license, they now put into the trough a piece of board, supported at either end upon blocks, about one-third the width of the trough. The operation of the machine as thus modified is known only to the defendants themselves, and Mr. Weatherhead testifies that it eX,erts a pressure upon the hide, how great in pounds we do not know. We understand him to say that, by passing t4e hide through the machine and several times, all parts come sooner or later under the thus substantially all the stretching is done by its aid. ' Infringement of the plaintiffs' first claim is not escaped by the'use of this piece of board, for, although it causes the defendants' rilachine to approach more nearly the old belt stretcher, still the operation must remain to some extent at least like that of the patent. The manipulation with the table and grooves must enable the operator to use all the elements of the first claim upon two.thirds of the width of the hide each time it passes through the machine, and it depends altogether on the thickness and stability of the board whether the whole operation is or is not copied. The very presence of this removable board is evidence that the old machine is. not satisfactory for the new use. The argument that a machine must be automatic in order to be patentable is not sound. A piano is not automatic, nor is any tool or implement intended for use by hand; but improvements in any such tool used in an art or industry are patentable. In the second claim the combination is limited to a laterally-yielding stretcher, and a laterally-yielding friction table or beam. As one bar, however, in the defendant's machine is fixed, and the other has a motion up and down, we find no infringement 6f this claim. The third claim appears to be for the exclusive right of using the
machine referred to in the first claim, and, as the defendants have used such a machine, they have infringed the third claim, andwe do not at present see how it could be infringed otherwise than by infringing the first claim.
(Circuit Oourt,IJJ. D. New YO'l'k.
February 12, 1883.)
I. PATENTS FOR INVENTIONS-AcTION FOR INFRINGEMENT-NOMIINAL DAMAGES.
The recovery of nominal damages in an action for infringement of a patent, and the tender of such sum by the maker of the machine so infringing, do not operate as a license to the maker or his vendees as to existing infringing machines so made, nor as a bar to a recovery in another action against a subsequent user of the same machine.
2. SAME-EFFECT OF STIPULATION IN FORMER SUIT AS TO DAMAGES.
In· the former action against the maker of the infringing machine, there was a stipulation" that the amount of recovery to be adjudged against the defendants in case of a decree for shall be fixed and determined upon the evidence in the case sUbmitted at final hearing, and both parties request the court, in case of a decisionagainst the defendant, to fix, as the amount of recovery, such amount of damages alii is proved by such testimony." Held, that the cqurt, by giving nominal damages in, the absence of proof. did not thereb.y adjudge in that case that one dollar was the value of the invention. .
3. SAME-MEASURE OF DAMAGES.
The amount of damages to be recovered against .the user of the infringing machine was the profit which the plaintiff.ordinarily received on the sale of a machine of the same size, using the patent so infrin:ged; and where the profit to the defendant, arising ont of the use of the infringing machine, could not be determined by the proofs, the plaintiff was not allowed to recover such profits as damages.
In Equity. II. T. Blake, for complam'am. '. Benj. E. Valentine, for defendant. BENEDICT, J. This action is brought to recover for the use by the defendant of :1 stone-crushing of the kind known as Smith's hydraulic crusher, alleged to be an infringement of a patent owned by the plaintiff for an invention employed in a stone-crushing mao chine known as the Blake crusher. The machine used by the defendant is one of four machines that formed the subject of an action instituted in the year 1873 in this court by this plaintiff against John Robertson and others, tpe makers of the machines. In that
tlReported by R D. & Wyllys Benedict.