v. Walton, 11 Allen, 238. Our constitution merely requires that the accused shall be informed of the nature and cause of the accusation., Amendment 6. F'or these reasons, I am of opinion that the judgment below was right, and should be affirmed.
FIFIELD 1'. 'VIIITTE)IORE.
,Circuit Court, D. :lIJassachuseUs.
PATENTS FOR INVENTIONS-LETTETIS PATENT
August 8, 1883.)
No. 150,303 Sus'rAINED. Letters patent No. issued to J. ·Wesley Dodge, Febrnary 28, ISH, for an improvement in tools for finishing the of sales of boots and shoes, are .valid; and lhe fourth and fifth claims of said patent are not void for want of novelty, or 1'y reason of being anticipated by tbe Iioclges patents, Nos. 117,287 and 129,E25, and the Adu) patent, No. 142,75U, as claimed.
In Equity. James E. 11Iaynadier, f01' C'omplainants. Thomas IV. Porter, for defendant. LOWELL, J. The plaintiff owns the patent, No. 150,305, issued to J. Wesley Dodge, February 28,1874, for an improvement in tools for finishing the edges of sales of boots and shoes. The Epecification describes a balanced tilting frame hung over head, to which a steel rod is attached by a ball and socket-joint, and at the other end the rod is fastened to the burnishing tool by a similar joint. This arrangement gives in a simple and efficient manner a great freedom of movement to the burnishing tool, iO enable it to follow the curves of the edge of a shoe sale. The tool is driven by a belt, which passes round the upper frame near the rod, and comes down through the hollow handle of the tool. The patentee says, in his specification, that an inferior tool may be made with a belt running outside the handle, instead of through the hollow or tubular handle. In practice it is found that when the belt runs through the handle, at the great speed necessary for the best and quickest work, it heats the handle, and the belt itself is quickly worn out. Tho patentee discovered that he could make a better and not an "inferior" tool by putting the belt outside the handle; ana 400 machines, in the new form, have been made and sold by the plaintiff. But in order to I'llrry the belt outside, it was found necessary, or, at least, advisable, to add a supplemental rod, with a spiral spring, which keeps the belt in position when the tool is tipped in various directions to follow the curve of the sale. The improvement was made by Dodge himself, but not patented, and is supposed by the plaintiff to be covered by the original patent, as it certainly is by claims 4 and 5, if they are valid. v.17,no.6-33
:Machines, such as are now made by the piaintiff, have been copied and sold by the defendant, at first under the belief that he was the equitable owner of the Dodge patent, but now under the claim that the patent is void. .His claim of equitable right depended upon an agreement made by Dodge with the shoe machinery company, of whom the defendant has since bought all their tools, rights, etc., to assign to them all patents which Dodge should take out for inventions made while he was in their employ, as this invention was. The claim was disputed by Dodge, and a settlement was made, before this suit was brought, by which this equitable claim was abandoned; and it forms no part of this case. The second defense is that the fourth and fif.th claims of the patent are void, because no working machine is described in the patent, and for want of invention, because of two preceding patents of Hodges, Nos. 117,287 and 129,825, and one of Addy, No. 14:2,756, which are in the case. The claims are: "(4) In combination with the tool-stock, the connector rod, "', jointed to the handle or stock by the ball and socket-joint, S, substantially as shown and described. (5) A pendent swinging-tool frame, jointed to a swingingtool frame by a ball and socket-joint, or its equivalent, the combination of the two frames thus jointed giving to the tool a capability of motion in any and every direction; the pendent frame having tlle burnisher wheel shaft journaled in it, and a pulley on said shaft forcoTlllection with the pulley upon the shaft from which the frallle is suspended, suustantially as shown and descrilJed." The first three chims are made to cover the form of tool shown in the drawings, with a hollow handle, aild the two above quoted, to cover the other form. The two objections, as I have said, are: First. That no practical machi:18 is described. The patentee and the plaintiff both testify that the machine would and did work in the form in which it appears in the patent; a for the defendant testifies that its working was not satisfactory. It is doubtful how far the machine would have been a commercial success, if at all, in that form. But that it was a working machine has not been disproved. The patent itself throws the burden of proof on the defendant, and he has complained that the plaintiff has prodliced in court no working model; but that was for the defendant to do, if he thought it would sustain his contention. As the case stands, I find the patent to be Yalidin this particular; and, being valid, it sustains the fourth and fifth claims. If it required further invention to make the machine in its present form, as to which the eVldence is conflicting, it would still be subordinate to the patent, because the devices mentioned in those claims appear to be legitimate sub-combinations of the machine patented. ..' .. Second. I cannot agree that it required no invlOntion ,make -the plaintiff's tool, after the Hodges and Addy patents were' pnLlislled.
HENDY V. GOLDEN .8T.lTE &
.It is, undoilbtedly,- an im pl'ovement uponb6th of them, in the sense of the patent law; that is, a change from them, and, I think, a valu'able ,1ne. ' It may be regarded, perhaps, as a combination of the ,merits of both those machines; but, tried by all usual venience, simplicity, and cheapness,-the change is, in my judgment, a patentahle one. Dem'ee for the complainant.
(Oircuit eVilrl, D. OalifV1'nia.
The specilieations for the re:ssue of a patent may be umcl1l1cd by the moclel deposited in the palent-omce, as well as by the elmwin;;;,
A:UEKDED DY MODEL,
Where the sjlPC'ifi"ations nnd drawings do not show whether or not the mu"hine patcnte,j nnbl'acpd a feature elaimed in the reissued patent, the court emmot say, from a comparison of the original amI reissued patents alone, whether the refs,;uo emhmces a feature not filelicated in the milohine as first without an inSI)ectioll of the original model depo.,ited in the palentoltlce,
Beone t(; Jliller, for complainfmt. 111. A. Wheaton, for defendant, SAWYER, J., (Ol'illly.) This is a demurrer to a hill in equity for the
infringement of a pn tent for an ore-crushing m:lehin<3. The original patent and the reissue are both set ant; and the point is that the reissue is broader than the original patent, and takes in an element not indicated in the original and drawings. This new feature of the patent is the extension of the rear board of the hopper .downwards, so as to operate as a scraper on a vibrating tray, for the purpose of forcing the are to pass off. There is nothing stated in the speoifications of the original patent in regard to this construction of the hopper-board at the rear; and it does not appear whether it ,yas so formed, by the drawings in the original patent. Kor does it appear that it was not there. It may ha ye been, and probably was, in the original machine and model. In the dra\yings of the reissue there is a part of the side cut away on the hopper, to show the extension of this rear board dO\n1wards to the vibrating tray. In the first drawings the side is not cut away, and it does not show whether the rear board goes down to the tray or not. In all other respects the drawings are the same in the t\\'o patents, The la\\' authorizes the change ,of the specification-authorizes the speciticatioll3, for the purpose of
, tTrol11 Sth