DEERING .,. M'CORMICK RARVESTINGMACH. 00.
device may be of any kind competent to give the swath direction into the re. ceptacle. or it may be of the kind that moves the gavel bodily endwise. The bOard or plate,e. may be connected with the butting mechanism in various ways, and the plate, e. itself may be varied; yet. should any device be used capable of being influenced by the heads of the, grain. whether in swath, gavel, or bundle, for the purposes set forth, I should consider it an equivalent. The spring, e1, may be connected with the butting mechanism direct. as to any, of the moving parts. Tbe locking arrangement may be varied, and even dispensed with, under some circumstances. These suggested modoi.Geationsareshown in an additional figure.-that numbered 7. In this the grain L'l,shown as operated at ea.:lh end by the two plates or boards; and it is plain that as the distance between these boards at their delivery end is regll1ated by the length of 'the grain. the butt-board will be caused to deliver , the incoming grain properly. This would be used in that class of binders where the grain accumulates in the receptacle ina free state. and is taken bodily therefrom by the needle. The plate, e. may be loeatt!d upon the elevator, ahd connected with the adjusting or butting mechanism,and produce the 'same effect."
latfon, to the binding mechanism. · · ,. The modifications that may be made in this arrangement are almost unlimited. For instance, the butting
, In harvesters, .boards for adjusting butts and heads of grain intheir descent down the delivery board or deck, hinged and located on opposite sides, with a series oinoles, in which pins may be placed, in the deck, to adjust the, head or wind board, and in the arm attached to the buttJ?oard, lUlcl' ,tpereby giving ,direction to the movement of the descending gntin, fOr feeding it furt4,er forward or further backward, are old. Ma,IlY ,rj38emble tpe boards of Steward, and represented in his diagram, Fig. 7, llnd will Q,O-act upon the grain, when adjusted, so as to present the gave] 'in for binding. Elward (May, 1876) described them in his .patent,but the. movement of one board did not communicate a move· menqn, an opposite direction to the other. There was conjoint action "only when adjusted by the operator. In 1877, Appleby and Bullock , substituted a traveling butter for the adjustable butter-board. Steward's butting mechanism and board, e, differ from others in a conjoint action between them, whic,h he describes, and also a conJoint the bundle-discharging mechanism of a grain-binder and the board, e, · whereby the bundle-discharging mechanism im}!arts a positive movement to ,the o,utgoing bundle against the board, e,se:> that it set for thein, coming bundle., 'Ihepurposeof Steward's inventioriis, by combination of the parts described, to adjust the butter-board forward and backward, with the board, e, so that, "whatever the length of grain which passes,its W,m,always beat the same place;" and this is done through the connectioI1:described in the specification between the board or plate,e, and · the, endless canvas, d, by which it is made to backward and forward automatically, and thereby fe.ed the butts of grain to orfurtherfrom , the needle.. In the defendant's machines the butt-board or 'endless canvas adjusted by hand to different fixed positions, and relative tqe pat9: ,of,the .and. this was a conpllon method of constl'uction '} adJustlllentof, the "en;dless in. the. Steward
FEDERAL REPORTER t
method before his invention;. and the elastic pressure of the board, e, towards grain is caused by the spring, e1, when not restrained by the locking mechanism, and is thus adjustable as circumstances may require. The Deering circular of 1880, put in evidence, shows a board opposite the butter canvas, constructed and adjusted as in defendant's machine. Chapman, in patent, June 19, 1877, and Buxton, in 1879, and Puetz, in 1880, have pivoted wind-board and butter attached to the deck, closely corresponding to the Steward board, e, and butt-adjuster, without the spring and rod connection. In September of 1881, McCormick substituted a spring for a pin behind the wind-board, (correspondingto board, e,) so as to give to it elastic and automatic adjustment. Gotlieb Heller also, in the spring of 1878, put a wind-board on his machine, and held it at an angle by a spring, using it during the harvest of 1878, and the next season, whenever the binder was used, until the ma. chine was laid aside. Rubin, George Heller, Schlesener, and othflrs corroborate him, and prove it beyond doubt that at that time he put a wind-board with a spring behind it, corresponding to board, e, of Steward, for retarding the heads, and keeping short grain or scatterings from falling down. In view of these devices used before the construction of his Steward must be limited to the peculiar construction of mechanism by which the conjoint action is obtained of the board, e, and the swinging butter, D, and also to the combined action of the self-setting board, e, and the delivery apparatus, operating in connection with butt-adjuster, whereby the bundle, as it passes out, fixes the position of the board, e,and the adjuster, D, for the succeeding gavel; and such combination of the bundle-discharging mechanism· and the board, e, whereby the bundle-discharging mechanism imparts a positive movement to the outgoing bundle against the board, e, and at the same time sets it for the incoming' bundle; and also to the conjoint action of the discharge arms,j and k, the board, e, and the adjuster, D. He must be restricted to the exact combinations shown, which are not used by the defendant McCormick Company. The two claims which it is insisted the Winona Company infringe are: "Twentieth. The combination, in a grain.binder, of moving butt-adjusting mechanism, and the board, d J, substantially as described. Twenty-First. The combination of the swinging butt-adjustE'r, the arms, d 2 , d 3, and d4, and the board, d J, pivoted to the swinging butt-adjuster, substantially as described." The Winona Company undoubtedly use the mecha.nism, operating in the same manner; as described in the Steward specification and claims. The only differenc& between the butt-adjuster in the defendant McCormick machine and the Winona is the attachment, d 1 · The arms, d 2 , dB, and d\ with the frame, D, when operated, move like a parallel rule, and constitute a parallelogram; thus keeping the board attachment, d J, parallel to the edge of tbe chute. Heller had put on a similar attachment, pivoted to the end of a butt-adjuster, in 1878; and, although the construction of the adjuster and attachment was crude, it operated suo-
DEERING .,. M'CORMICK HARVESTING MACH. CO.
::le.'!sfully, and embodied, substantially, the alleged invention described by Steward. Although Heller may have been in error when, in his deposition, he stated that the exhibit "Heller Butt-Adjuster, with Adjustable Extension," produced and put in evidence, was the identical device he put on his machine in 1878, the fact that he 'put on an extension to the butt-adjuster, and used it, is fully proved. Schlesener, who contradicts Heller on the identity of the exhibit "' Heller Butt-Adjuster," and says that he and Heller put it on his machine in 1880, corroborates him in regard to a butt-adjuster, with extension, being on Heller's machine in 1878. My conclusion is that there is no infringement by the Winona Company of these ciaims.
Webster Patent, No. 251,147, dated December 20, 1881.-Injringement by the Winona Company of the four claims alleged. This patent describes
a mechanism for raising and lowering and fastening the grain platform. The object of this invention was to arrange mechanism to hold the grain end of the platform at any desired height from the ground, and permit of the easy adjustment of the platform to different heights. The parts are so combined and arranged that the operator can use the hand, which disengages the pawl, to assist, also, in raising and lowering the platform. This device, performing the same function in a different situation, has been in use for many years preceding Webster. It is found in a patent to Bacon, granted in 1838, for raising, lowering, and fastening windows, having the ratchet standard, the pawl, spring, and lifting handle, operating in substantially the same way as in Webster. The act of lifting disengages the pawl, and releasing of the hold upon the handle permits the pawl to engage. Such a device is used upon the windows of railway cars; and in addition to the notched window casing, for which the ratchet standard is the equivalent, and the pawl and its handle, there is a handle at the top of the window frame to aid in raising. There is no mechanical difference between the function of the two devices in Bacon and Webster, and there is no invention in using the sash-fastener mechanism for raising, lowering, and fastening a grain platform by making the parts larger and stronger. A combination of parts to perform a certain function, when patented, entitles the 1tatentee to that combination in all situations for all analogous purposes. The alleged infringement cannot be sustained. My conclusion, therefore, is that the bill against the defendant the McCormick Harvesting Machine Company must be dismissed, and the complainant is entitled to a decree only against the Winona Harvester Works and others for an infringement of the knotter patents, No. 278,639 and No. 301,190, and it is 80 ordered.
UNITED STATES ". KOCH.
(ootrcwtt Court. E. D. M4.880Wl"t, E. D.
September 27, 1t1811.)
In 1870 congress passed a statute' pro\tiding for the registration of trade-marks, and in 1876 a statute imposing penalties "for trespass upon the rights obtained by such registry. The statute of 1870 haVing been declared unconstitutional. in 1881 a valid statute was enacted, touching the same subject. which did not re-enact the penal statute of 1876, lLnd made no referenoe thereto. Held, that the penal statute fell with that of 1870, and did not remain suspended; to become operative under the statute of 1881.
At Law. On demurrer to indictment. George D.&ynoldB, U. Atty., and Warwick M. Haugh, for plaintiff. John M. Hol'1M8, for defendant.
BREWER, J. This is an indictment under the trade-mark statutes of the United States. The indictment, was certified up from the district to this court, and to it there has been filed a demurrer. On the argument of that demurrer many questions were presented. I shall notice but one. ' The history of trade-mark legislation is this: In 1870 congress passed a statute providing for the registration of trade-marks,-a statute general inits operation. In 1876 it passed another statute imposing penalties for trespass upon rights by the registering Under those statutes indictments were found, and, Qn a certificate of division of opinion between the district and circui,t judges, cases came to thesu:preme court, and inwhat is knownns the Trade--Mark Gzse8, reported in 100 U. S. 82, the supreme court decided that the act of 1870 was beyond the, power of congress. It suggested in the opinion that under the "commerceclause,» perhaps, congress bad,the power to legislate with reference to trade-marks used in commerce between this country and foreign nations, between the state$, and with the Indian tribes. Immediately thereafter the act of 1881 was passed by congress, providing fodheregistering of trade-marks which might be used in foreign commerce and commerce with the Indian trihes: ,", It did not re-enact the penal statute Of 1876, and the act of 1881 contains no direct reference to that penal statute. ,' Now, the coiltention of the government" is that although the act of 1870 had no existence,-nev'er'had any; having beendeclnred beyond the power of congress,-and that although by reason of that fact the penal statute of 1876 had upon which it could operate, yet it stood as a valid enactment, suspended in operation until the act of 1881, providing for trade-mark registration, when it was vivified, and became an act imposing penalties for trespass upon rights given by the act of 188l. In the Trade-Mark CUBe8, Mr. Justice MILLER closed the opinion of the