GJLBEBT V. WElBPLOW 00.
Robinson, the patentee of complainant's device, alsoobtailled,iqDecember, 1860, It patent for an "improvement in plows," whe.r;ein he to raise showed a wheel-arm arranged to be moved up or down so or lower the plows; but he showed no levers for this operation, the movable plate carrying the wheel-arm being held in placebYP,iIls, which were taken out to make the adjustment, and then rElplaced in other holes, as provided. In May, 1861, another patent was issued to Vowles for an "improvement in cultivators," showing the same device for a movable wheel-arm that was shown in his patent; of. :Feb· ruary, 1860. In the patent of Edwin J. Fraser, issued April 28, 18tH, for an "improvement in plows," a movable wheel-arm is shown, by which the axle is raised and lowered so as to adjust the axle horizontally when one wheel is running in the furrow. This is made by means of a lever with an eccentric or sector fllicrumed was on the top of the vertical guide or socket in which the moved. In the patent granted to J. L. & W. L. Black,)?ecj:lmbe,r 19, 1865, a movablo wheel-arm is shown, actuated; that ,is"tD,ovedpp or down by means of a chain fixed to the slide., which carried, the movable wheel-arm which is worked by a bent nected with the chain. So, too, the patent issued to A. IIammqpq, issued March 27, 1866, shows a whe.el-arm movable up and doWp.,by means of a screw engaging in a toothed raoJi on the platEl. to.which the movable arm is fixed. , ' , ',' It therefore, clearly appears that devices for adjusting one or both ends of the axle in relation to the centero£ applied to ·cultivators and plowBwas old before, the patent now the court was grauted, amI that in all the prior the same mode of securing the movability of the axle was that is, the wheel-arm was made fast to a vertical plate, whicp jseitpe,r grooved so as to slide on a vertical plate fixed to the end tlle axle,· or the plate fixed to the end of the axle is grooved, and the ,plate; fixed to the end of the arms slides in such groovef.\. We also tPat in the VowlEls patents of 1860 and 1861 the ,wheel-arm is means of a lever having a toothed segment at the with the teeth or cogs of a rack attached to the plate whic4 carries .the wheel-arm; this segmental lever being fulcrumed on a pip 80:.as to move. the plate up or down without the aid of a connecting Hn¥orpit. man. In the Fraser patent of 1861 a sector is applied the patElnt of: Black of to raise or lower this movable wheel-arm. December, 1865, a bent or angular lever. is shown attached; toa connected with the sliding-plate fixed to the wheel-arm; .alflo shows an arohed or segment-shaped notched bar so engage with or hold the lever in any place within its range;: in QtpElr words, a ratchet bar. . .... Here we have in these older devices, as it seems tome, .the ments of the first claim of this Robinson patent. ents show levers with segments or eccentrics,. and the teeth,ol'\ .Qqss
on this engage with teeth upon the plate which carries the movable wheel-arm; so as to raise or lower the wheel-arm. This segmental lever is the equivalent of a bent or angular lever, the rounded or segmental surface with its teeth or cogs making it unnecessary to use a pitman or link in order to obtain the necessary vertical movement of the plate carrying the wheel-atm. In the Fraser: patent the lever and sector or eccentric performs the same office as angular lever, and is the mechanical substitute or equivalent of the angular lever. In the Black patent of 1865 an angular or bent lever is shown operating with a ratchet exactly in the same manner and for the same purpose as the lever, A, and ratchet, C, in the first claim Of this Robinson patent, while the chain performs the same function as the pitman,D, in Robinson's combination. It is true, there is no spring shown or described like the spring, B, in Robinson's patent, but it is so palpable that a lever, in order to operate with a ratchet, must have some device to hold it in engagement with the ratchet that I think any mechanic would assume, from an examination of the drawings of the Black patent, that it was intended that the levers should have sufficient spring or elasticity in a flat or sidewise direction to make a separate spring unnecessary as a locking Hammond device, working by means of screws, did not device. require, so the patentee says, any device for locking the wheel-arm in place, as the screw would remain as it should be set. The problem which Vowles, in both bis patents, and Fraser and Black were attempting to solve was to raise or lower this movable wheel-arm by means of a lever to be actuated from the driver's seat or standing place. They all used substantially the same device for 'making the axle a.rm movable; they all' used levers, which were either angular levers or the usual and well-known meohanical substitutes for the angular lever. The toothed segment of Vowles and the Fraser lever, with the sector or eccentric at the end, are all nothJing but ariguIl:tr or bent levers, while Black used an angular lever with a notched ratchet to hold it in place, the chain acting as a pitman, having side elasticity enough to keep it in the notches where it might be set by the operator. But, even if it should be thought 'that 'all the minor elements of this claim are not found combined in either onhose older devices, it is enough to say that the levers shown sup'ply, by their 'own peculiar structure, the parts, suoh as the pitman and spring, ail,d make the pitman and spring of Robinson's patent unnecessary. Suppose, for illustration, that Robinson had been the first to make a movable wheel-arm on the end of an so as to give to , a ploW or oultivator the means for adjustingth'e height of the axle above or below the center of the wheel, and had adopted the Vowles device of a lever with a toothed segment, and ooggedor toothed vertieal plate; would not anyone who should afterwards adopt a bent lev,er and pitman, to accomplish the same result, be held to be a most palpable infringer?
It seems to me these o)d devioes. of Fraser, ana Blaokll.re interchangeable with the oombinations shown in.this patent. The,y were all old and well-known devices for obtaining the desired result, whioh was to move this wheel-arm up or down by means of a lever; . or, in other words, to obtain from the lever line of motion, as aU know that the.movement of the ends of.a are in aro of a oIrole, and if a right line of motion, either vertical or horizontal, is required it is obtained either by cogs or a link or bent.Qr angular lever; and these inventions, prior to Robinson, having sh()wn by their devices how this could be done, there. is no J;lovelty nor anything that rises to the. merit of invention in the oO,mbination shown in this patent. This Robinson patent shows the devioe for raising or lowering the wheel-arm, as applicable to the furrow-wheel, and he while desays it is his device for regulating the depth of the fendant's plows sbow the adjusting device upon the land-wheel, Jl,nd defendant's claim is that this adjusting device has nothing to do in their organization with regulating the depth of the furrow, but says it is solely for the purpose of leveling the axle so as to make the plows run flat or level, when one wheel is in the furrow, 01' the plow is running on a side-hill. ' . ,. The oomplainant's experts have, at oonsiderable length, expounded the dynamios of plowing and attempted to pro.ve thntthe depth of the furrow, even with a plow mounted upon wheels, wholly determined by the draught from the clevis at the end of the plow-belJ,ill, and insist that Robinson's idea of regulating the depth of the pl9wing by the height of the axle is all a fallacy. It will be noticed, however, that in Robinson's organization his plow-beams' are placed6n top of his axle-tree, and I cannot understand how the depth of, the furrow is not, to some extent, controlled by the height of the axle. If, by the operation of the draught upoil the clevis, the plows have to run more shallow than the limit of the heigpt of the beams'upon'the axle admits, then the beams must carry clear of the ground the wheels and the entire structure of the' wheel-carriage; while it is plain that the plow can, under:po circumstances, no matter. what may be the relation of the draught. from the clevis, run deeper 'than. is allowable by the axle under it; in other words, the plow lllust' run It is pivoted on the axle, if it. is to go deeperthan the level mined by the height of the axle, it must drop its rear end down. and the moment this is down, it begins to run out of thegroun,d, if the forward drops the of the from the team on the clevis, the heel or rear of the plow rises, i:uiditruns on its poiIlt, as the plownien say. ' . .. . It must be admitted that even if Robinson believed at· the tiJ;he he made his in vention that its chief meiitqrutility was to regrilate the depth of the furrow, and it has turned out in practice that he was mistaken in that regard, he is still entitled to whatever merit there is in his device, even if it does not operate as he expected; and
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if 'the chief feature of utility in his device was that of leveling the so as to make the plow run level or he is entitled in to that merit if it was his invention; but we find that and arranged his movable wheel-arm expressly for the pur?!leye,ling his while in Black, in 1865, and m, chang(jd the heIght of the axle for the purpose of ,lev,elingtheplow. Vowles' machines of 1860 and 1861were both , and his device for raising and lowering the axle was to plows or cultivator teeth out of the for the purpose of at the .ends of the or transporting the machine from , field to field. The point is made by complainant's explJrts, and was 'l1ts9'insisted" upon in ,argument that Vowles' cultivat'ors were not macl1illes by reason of their size and complication of parts, bu:t' IappreheJid this does not a,ffect the question for which they were certainly shows in his specifications and drawings a for movable wheel-arms and levers for actuating them, by ",hieh axle can be raised or lowered, which is as equally appli. plow as to a cultivator; indeed, a cultivator is but one form , 'l,l'a1?le of aplow, and I think, therefore, for the purpose of determining the guestion of the, novelty of Robinson's patent, or limiting its these cultivator patents of Vowles are entirely admissible. pp0n. the question of infringement, I do not think the device used llydeferidantfor raising or lowering the wheel-arm of the land-wheel jn their plow shows the same combination claimed in the Robinson patent for raising and lowering his furrow-wheel, because the defeud. ant does not use what can be technically called a pitman; but it uses , ,a bent lever connected with the sliding' plate by a link, and defend'ant holds the lever in place on the ratchet by a trigger and spring which isdifferent in its action and construction from complainant's flat'spring, B; while it clearly appears from the proof that the means for fixing the movable arm to the end of the axle and the levers by which the arm is moved for the purpose of adjusting the height of the axle are all shown in the older art to such an extent as to have fully anticipated all that is shown in the complainant's patent. The olaer a;rt certainly shows, in the patents I have cited, the sliding wheelarm, E, and angular and segmental levers and sectors by which this wheel-arm is ,moved up and down, so as to change the plane of the 'end of the and, as I have already said, it seems to me by entirely equivalent means to those shown in the claims of the complainant's patent. the defendant's plow seems to me more nearly a mere mechanical modification of Fraaer's and Black's devices than an imitation, either in form or principle, of the Robinson device. 'fhe bill is therefore dismissed for want of equity.
GOTTFRIED V. ORESCENT BREWING 00.
CRESCENT BREWING CO.
SAlliE V. GAFF SAlliE V. HACK
and others. and others.
(Oireuit Court, D. Indiana. December 5, '1884.)
PATENTS FOR INVENTIONS.
Evidence of settlements for infringements is not competent to show a license fee or royalty, and a license for the future,given wholly or partially in consideration of such settlements, is not admissible in evidence against a stranger.
2. PRACTICE-MASTER'S REPORT-ERRORS ELIMINATED.
Exceptions to a master's report will be overruled, notWithstanding errors committed, if upon the entire report it is evident that the errors did not the conclusion.
Exceptions to Master's Report. Banning cf; Banning, for complainants· . Parkinson cf; Pa1'kinson, for defendants. WOODS, J. 'fhe exceptions filed are needlessly numerous and prolix. The question to be considered is whether the damages awarded the plaintiff for the infringement of his patent are excessive. In so far as the master has found that the proof showed an established royalty or license fee, within the meaning of Seymour v. McCurmick, 16 How. 485, I think he erred. I am still of the opinion declared in National Car-brake Shoe Co. v. 1'erre Haute, etc., Co. 19 FED. REP. 514, and Welltcott v. Rude, ld. 830, that evidence of settlements for infringements is not competent to show a license fee or royalty; and, upon the same principle, a license (for the future) given wholly or partially in consideration of a settlement for infringements, is not admissible in evidence against a stranger. There are other minor poin ts concerning which I find it unnecessary to form an opinion. Like those stated, they are eliminated from the case by the final" position upon which the master rests his conclusion. "There is a square conflict," says the report, "in the evidence of the plaintiff and defendant as to the value of the invention. · · · In my judgment, the evidence of the complainant on this point is entitled to the greater weight, and, irrespective of any supposed license fee or royalty, I regard fifteen cents per keg, and one dollar and fifty cents per cask, for pitching, a fair and reasonable rate for estimating complainant's damages. to There is nothing in the record to justify a disturbance of this conclusion, although the contrary evidence, standing by itself, is undeniably strong. It is shown that soon the issue of the patent the patented machine was offered to the public, and in some instances sold, at prjces varying from $100, at first, to $RO, $60, and $40, at later dates; and that in a contract between the patentees, whereby one of v.22F,no.8-28