.. form is of the invention. it bas but little weight in the decision of an ,tpe correct rule being that. in determining the question of court. or jurY, case may be, are not to judge about diffe'r.ences by the namE's of things, but are to look at the machine's or tht'ifi:iev8raldevicE's Of elements in the light of wha:t they do, or what office or.functjon they pE'rform,· and how they perform it; .andtQflnd that one thing is substantially the same as another, if it performs substantially the same function in substantially the same way, to obtain the same result, always bearing in mind that devices in a patented machine are ,different, in thl;l sense qf: the patent law,· when they perform differ8utfunctions or in a different way, SUbstantially different rosult." See, Itlso, CantreU v. WaUick,U7U. S.689, 6 Sup. Ct. 'Rep. 970; Loom 00. 'I. Higgins, 105U. S. 580, 598; Winans v. Denmead, 15 How. 840; Sargent v. Larned, 2 Curt. 340. . The complainant is entitled. to a decree for aJ;l inJunction upon the third claim ofletters patent No., 1$8,991, and for an injunction and an accounting on the seventh claIm of letters patent No. 327 ,289; .but, as the defendant has been successf,l,:ll u,pon letters patent No. 122,622, the decree mustbewithoutcosts. Trwp Co. v. Feltho'USen, 22 Blatchf. 169, 20 Fed. Rep. 63,3.
(Oircuit Oourt, D. Oonnecticut. March 1, 1888.)
PATENTS FOR INVENTIONS-ANTICIPATION MINCING MEAT.
BY PRIOR PATENTS-MACHINES
Letters patent No. 271,898, issued January 80,1883, to John G. Baker, for a machine for mincing meat. which combines a casing corrugated by longitudinal grooves with retaining shoulders, a perforated plate, a knife, operating against the inner face of the plate, and a forcing screw, the thread of which extends to and rotates with the knife, the cutting action being produced by the operation of the knife on,tpe'perforated plate, are not anticipated by the Miles patents of 1861 and 1864, which combine a case having spiral grooves near the hopper end, then longitudirial grooves, Q rotating shaft with spiral blades. and a perforated plate against which the ends of the sI>irals revolve, in,which the principal part of the cutting is done by the revolving spiral blades in the body of the machine.
... SAME-By ENGLISH PATENT.
Letters patent No. 271,B98,for a machine for mincing meat, describing a combination consisting of a casing corrugated by longitudinal grooves with retaining shoulders, a perfor.ated plate, a knife, operating against the inner face of the plate. and a forcing screw, the thread of which extends to and rotates with the knife, thecuttiDg action being produced by the operation of the knife on the perforated plate, is not anticipated by the Dollman English patent which combines. a case with a series of horizontal knives at the hOPPllr end, with a series of screw-like blades on a hollow shMt passing throug-h them, the other end of the shaft, carrying an Archimedean screw, the casetermina· ting with, a perforated plate through which a llolid shaft passes and carries on the outside radial cuttlD'g blade's working on the perforated plate, the meat being cut into small pieces by being carried by the screw-like blades against the horizontal knives. and theo.cecarried by the screw to the end of the case, wherl! it is forced through the perforated plate.
The first, second, and sixth claim of letters patent No. 211,398, issued to John G. Baker January 80, 1888, for a machine for mincing meat, which com·
ENTERPRISE MANUF'a 00. 11. SARGENT.
" bine acasing'cotrugated by longitudinal groove's with retaining shoulders. a perforated plate, a, knife, operating against the inner face of the plate, and a forcing screw; the thread of which' extends to and rotates with the knife, the action being produced by the operation of the knife on the perforated' plate, IS infringed by a machine mal).ufactured under the Shaw patent, dated March 9, 18.86, reissue No. 10,717, dated April 27, 1886, which is substantially a copr of the Baker machine, except that the internal grooves, though longitudlDal, describe long spiral in a direction contrary to that of the feedscrew, but tbere is no cutting action until the meat reaches the knife.
SAME-EXTENT OF CLAIM.
The tenth claim of letters patent, No. 271,398, for a machine for mincing meat, describing the combination of the casing and a perforated plate, adjustable therein, with a feed,screw, and with a knife constructed to turn witl). the screw, but otherwise free thereon to accommodate itself to the face of the perforated plate, is limited 'to the combination therein described, and is not infringed by the'claim of the Shaw patent for a stationary plate and an adjustable knife. The thirteenth claim of letters patent No. 271,898, issued to John G. Baker, for a machine for mincing meat, describing a knife constructed to turn with the feed·screw, but ramovaQle tlJerefrom for the purposes of repair, is void, there being nothing akin to invention about it.
In Equity. ,On bill forinjunction and accounting. Charles Howson and CluuJ.. ]J. MitcheU, for plaintiff.' John K. Qeach andBenj. F. Thurston, for defendants.
SHIPMAN, J. This is a bill in equity to restrain the defendants from the alleged infringerpentof the first, second, sixth, tenth, and thirteenth claims ofletterspatent No. 271,398, dated January 30, 1883, to John G. Baker, for improvements in mechanism for cutting up plastic or yielding substances. ' Upon a motion for a preliminary injunction in this case, the first and second claims of the patent, the history of the art, so far as then disclosed, and the patentability of the invention were examined. Manujacturing(Jo. v. Sargent, 28 Fed. Rep.. 185. It is not necessary to repeat the facts or the conclusions which were stated in the opinion upon that motion. The case has now been prepared with great care and has been argued with equal ability. The only important prior patent which was not used upon the motion, and which is now in the case, is the Miles patent of 1861. In the fact that the principll.I reliance for the cutting of the meat is upon the stationary and moving cutters in the body of the machine, before the meat is delivered to the perforated plate, the device does not differ from the Miles patent of 1864. The manner in which the cutting is performed in the earlier machine differs from the operation of the cutting knives of the later patent. The case is smaller at the delivery end than at the hopper end, and has inside ofit, at the hopper end, spiral grooves which occupy about half the length of the case, the other half towards the delivery end having longitudinal grooves. The rotating shaft has spiral blarles, the edges of which and the edges of the longitudinal ribs slide past each other, like the edges of apltir of shears. and the two edges constantly cut or shear· the meat as it passes from one rib to the next. At the extreme end of the machine is a perforated plate against which the ends of the spirals move, the openings in the plate being
'Sharpened on one side, and some 'cutting is accomplished by the blade ':lnds of against these sharpened edges, but the principal part is done, as in the Miles patent of 1864, by the revolving blades or knives in the body of the machine. There is no difference in the principle <In which the two Mile!:! machines operate,-that of a cutting action upon the meat before it reaches the perforated plate. As will be more fully stated hereafter, the Baker machine abandoned cutting action by the aid of 9utters around the shaft, and relied upon a rotating knife on the inside of the .perforated plate; and, while it is true that the blunt ends of the Miles spirals of the patent of 1861 moving against the sharpened edges of its perforated plate accomplished some cutting, there is no analogy between that sort of cutting action and that produced by a revolving knife blade passing over the edges of a perforated plate. The Baker rna· chine is nQtsopalpable an over the Miles patent of 1861 liS it is over the Miles patent of 1864, but it is an improvement of the same kind,' which introduced a new operating principle into the machine, . and evinced invention.' As much more time was spent, upon this hearing, in the discussion of the Dollman English patent than was given to it upon the hearing of the motion, the device of that patent requires especial mention. The case has a smooth interior, and a series'of horizontal knives at the hopper end, which extend about half the length of the case. At the hopper end of the hollow shaft, within the case, is a series of oblique or screw-like blades, which, on the rotation of the shaft, pass betwe.en the fixed knives. The other part of the shaft carries an Archimedean screw, having nearly the same diameter as the interior of the cylinder. "That end of the case in which thc,Archimedean screw is situated is closed by a plate of hardened and tempered steel, having in it a series of either circular or oblong holes, the sides of which are inclined to either; the smaller diameter of end of the solid the holes being on the external side of the internal axis (within the hollow shaft) projects through the center of this plate, and carries one, two, or more radial, or nearly radial, cutting blades, working closely upon the perforated steel plate closing the case." The meat is carried by the rotating blades against the fixed knives" and is cut into sinall pieces, which are carried by the screw to the end of the, case. The intent of the inventor. was that these pieces should be forced·· through the holes in the plate, and that, as they were forced through, the rotating blades passing rapidly over the plate should form cutters with the sharp edges of the holes and mince the material. The patent also says: "The perforated plate, and cutters working against it, may be used alone for effecting the mincing, instead of in combination with the rotating blades and fixed horizontal knives, as described." The patentee mounts his. rotary knife, which is outside the perforated plate, upon a shaft, independent of the feeding screw, in order that the knife may be enabled, by suitable gearing, to rotate at a higher rate of speed than that at which the feed-screw operates. This characteristic is not deviated from in the different forms of machine which he suggests. The defendant seeks to maintain that if, discarding the independent gearing, the ma·
ENTERPRISE MANUF'G CO. tI. SARGENT.
chine is constructed in accordance with the alternative method which is suggested in the patent, viz. ,by the use of the perforated plate and ters alone, it will, although the cutter is on the outside of the plate, be such an approximation to the Baker device that the latter possesse:3 no patentable novelty. If, having discarded the independent gearing and the cutting mechanism inside the casing, the machine is constructed in other respects in accordance with the specification, it is admitted that it would be a failure. It requires the presence of ribs upon the inside of the case, and of a screw which is adapted to co-act with the case, and is therefore a forcing screw, to enable the Dollman machine to operate with alleged success. Upon its success, as thus modified, there is a clear divergence of opinion, but I leave that question undecided, for I have no doubt that the gap between Dollman's patent and success was so great that it could not be bridged except by the aid of invention. The patent contains another alternative suggestion, as follows; "A plate with a series of radial slits may be substituted for the perforated plate, represented in the drawings, and, in place of the rotating knife or knives, a perforated rotating disk may be used." The defendants construe this suggestion to mean that a sharp stationary four-bladed knife may besubsiituted inthe place of the perforated plate, and that a revolving perforated plate takes the 'place of the rotating knife so that the meat is cut by tb'e knife against the inner face ofa perforated plate, and one of the defeds in Dollman's first alternative suggestion, that of forcing meat which is uncut through a series of small holes, is thus avoided. The suggestion which the patentee makes is not dearly enough given to enable any body to determine with accuracy how he meant that the cutting should beeffected,and one can only admire the ingenuity which evolved the cutter of the exhibit out of "the series of radial slits" of the patent. To make this modification work successfully, it is also necessary to use a screw which shall co-operate with the case and force the meat along in its path. From this more careful examination of the Dollman patent I do not per.., ceive any reason to change my former opinion that it neither anticipated the Baker patent, nor deprived the Baker device of its right to be styled. an invention. TLc sixth claim of the Baker patent which, with the first and secOIidt claims, describes the device as a whole, is as follows: .. (6) The combination of a casing, E, having internal longitudinal each of which is inclined on one side, and presents an abrupt retaining shoulder on the other, with a perforated plate, knife, and feeding screw, as set. forth." The main object of the patentee was to construct a machine which should get rid of the supposed necessity of preliminary cutting or chopping knives, and reJy for its cutting character entirely upon the plate and knife at the end of the casing. Thus the patentee said in his spe'cification: ..A and 8 knife have been used in 8 Qutting machine,bul;; in combination with preliminary cutting or chopping knives, moving and stational'y,8cting independently of the plate, for mincing meat before it;.
rell-Chesthe said plate in a minced condition, the in this case for the purpose of preventing the escape of large lllmps which may have escapedthe action of the prllliminary chopping knives·. In my invention, reliance. for cutting up the substa.nceis placed entirely on the plate and knife and a 4e"ice for impa'rting'direct pressure to a ,clade uhcut substance against the plate without any action on the substance dudng its passag.e to the plate, excepting that for effecting the desired pressure, t;he aim being to cut up the substance to Ul;liform or nearly uniform sizes, a .result which cannot be attai ll when there are iJitervening choppers ,to cut tbesubstance up to different SIzes, large and small. 'I, '
But it does not follow that, the meant, or that his patentis to befairly construed I!-S meaning, the meat was to come to the plate in,a condition in which ,po rubbing or no abrasion or no disintegration 'had take:n place. He siwply meant tb!tt, in contrast with the Miles mawas no cutting action in his device; that no reliance was placed, (or cutting up the meat, upon anything ,else than the plate and the knifej and that the mass was forced to the without any other dig.. turbance.of its integrity than was incid,ent to the forcing process. ,The screw mUE\t co-act with the case, in order to force the meat and therei!l necessarily a rubbing, an abrasion, and a consequent disintegration of the meat. As was said in the former decision, "The language ,of, the patentee was usedwitl;1 r!3ference to the cutting qualities of theMlies knives, as compared with the non-cutting qualities of the screw," and there was nO eitiler to, provide against, or to inform the public that he had, providedagainsh.a:brllsion of the meat. The preliminary non-cutting' characteristic ()f the. invention is specifically mentio:ned -in the first claim, and is. be, recognized as existing in the the and sixth claims. ;The first claim includes ,1,1. forcing device; whether piston or is immaterial. The second, claim confines the non-cutting, forcing device to a forcing ,p\lrticular shape of the 'ribs or of the.device which Elnablee the screw to co-operate with t4e case. The sixth. claim compels ,the casing to bavethe,described internal longitudinal grooves. The q\l,estion, and the important one in the case, in regard to infringement of the first, second, and sixth claims remainl3 to be considered. The machine is made in accordance with reissued letters pat;.. ent No. 10,717, 1886; the original having been dated March 9,18136, to JoQnH. Shaw, assignor to ,the defendant corporation. The pate.nted portio,1l9f the machine was its!t<ljustment of the cutters with relation to the . perforated plate. With reference to the first, second, and sixth claims, it is substantially a copy of the Baker cutter,.except that. !While the inter11l11grooves ,of the Baker casing are straight, the longitudinal, 10J;lgspnal ,lU a contrary t.Q that of the feed-screw. 'UP.on Of the defendant!'!'. (}laimed that their inachine 'was adapted to cut, and did cut, the meat, before it reached the plate, inconsequence of the action upon qf the spiral ribs : in conJupcti9D with the blai;1es of the screw, committing myself definitely too. conclusion, it seemed to met4at there was a shearing
ENTERPRISEl 'MANW'GOO. V.SARGENT.
action tiponfhe meat,' the edges of the spiral ribs and the reHketha:t (if a powerful; dull pair ()f shears. COllvolving siderable oral testimony has been taken upon this question. The silent evidence which the Shaw patent furnishes against its owners in this tent:on, is noticeable. The invention was made as an improvement upon the Baker cutter. The patentee substantially so said in his specification, and he says also therein that the principal object of the invention was to make a ready and easy adjustment of the cutter, with relation to the perforated plate. Although he describes the construction of the flpiral ribs,and says that they run towards the perforated plate, the inclination of thread being by preference about 45 degrees, or considerably greater thah the inclination of the spiral rib of the screw, he says nothing in the description, or in the claims, abont the cutting action of the ribs, but leave!:! it to be inferred that the cutting is done entirely by the cutters at the plate. Tbepatent was drawn by one of the most accomplished patent solicitors in the country, and it ::1 impossible that 'he should have received any instructions from the patentee in regard to the cutting feature of the spiral ribs and screw. It is almost impossible that the inventor should have supposed that his device possessed this important difference from the Baker device, and not have communicated his opinion to his solicitor. The Shaw patent signifies that, if the device has an intermediate cutting action, such action was discovered by the inventor after the date of the application for the patent. Contrary to my former leaning, I now think that the shearing action does not exist in the defendants'machine; certainly not; when it is treated in the usual and natural way. There is a shearing action in the Miles machine of 1861, which has longitudinal ribs upon the case; and rotatiw, .Jlades of very long spiral, and in which the edge of one blade passes the edge of the other, the two blades formIng an acute angle with each other. In the defendants and in the Blake machines, the longitudinal ribs are about at a right angle to the spirals of the screw, and when the screw turns, the meat is Wiped around across the shoulders of the grooves, the faces of the blades of the screw sliding upon the faces of the ribs, and the object of the shoulders not being to cut, but to prevent, the meat from merely turning around in the screw, and to assist it in its forward movement. There is the same kiind of grinding or disintegrating action in the two machines when the plastic meat is rubbed against the shoulders of the corrugations, but there is no shearing or cutting action as'the meat pursues its path to the cutter. The 10th and 13th claims are as follows: "(10) The combination of the casing and a perforated plate, adjustable with a feed-screw, and with a knife constructed to turn with the screw. bllt otherwisE' free thereon to accommodate HSll!f to the face oithe perforated plate, SUbstantially as set forth." , ,"( 1&) the com hi nation of the casing, E, closed at one end, and haVing a detachable plate at the opposite end, with a feed-screw, and a knife cOIlstructed to turn wi til the said screw, but rclUU vable thel'efrom after detadring the i'late, as sd fortr!." ' . ,
""These are a portion of the claims of small value, which seem to have peen inserted fOJ: the purpose of covering every possible patentable feat· ure of the invention. The tenth claim is for the purpose of covering the rocking motion of the screw against the perforated plate, by which it adapts itself to the face of the plate. In the defendants' machine, this rQcking motion exists, but their plate is not adjustable; their knife is adjustable. and the plate is stationary. I think that this claim, which is merely for the purpose of protecting one of the minor details of the Baker machine, is to be strictly construed; and, as it requires that the plate should be adjustable, and as the defendants' machine has no adjustable plate, the claim is not infringed. I cannot conceive any patentable invention in the thirteenth claim. It is said by the plaintiff to relate to the mounting of the knife upon the end of the screw in such a manner as to be readily removable and detachable for the purposes of repair upon the removal of the perforated plate. I suppose that the plaintiffs' theory of the nature of the claim is a correct one, but I can see nothing which. is akin to invention in the manner in which the knife is mounted upon the screw. . Let there be a decree for an accounting and 9.I;l injunction against the infringement of the first, second, and sixth claims. .
\ THE LEo.
THE ELEANOR. THE LEO
(DiBtrict Oourt, D. South Oarolina. February 6, 1888.)
COLLIIlION-BETWEEN SCHOONER, WHILE WAITING FOR PILOT, AND PILOT-BOAT.
After a pilot-boat has put off a pilot in a skiff for a schooner. it is the duty of the schooner to wait for the skiff, and it is the duty of the pilot-boat to keep out of the way of the schooner. So, where a collision Occurs between the pilot'boat and the schooner while so waiting, the pilot-boat is iu fault, and responsible for the damages which may ensue.
In Admiralty. Libel and cross-libel for damages. McCrady, Sons Bacot. for the Leo· . 1. N·. Nathans, for the Eleanor. SIMONTON, J. These are a libel and cross-libel for a collision occurring off the bar of Port Royal. . On the morning of 1st December last, the three-mast schooner Eleanor, bound for Port Royal, was spoken by the pilot-boat Leo. It being at thilttiiiieOf the morning-6:30 A. M.-quite dark, the pilot instructed