00. 11. DEEJUNG.
trialj they have been put to the expense of employing Munsel; they have been east into prison; and, while their trials and convictions before· the court at Muskogee. cannot be pleaded in bar by them, I think, when .the grade of offenses are no higher than these they have committed, the humanities of the law would be subserved by discharging all of them from arrest, and that the government, because of its mistakes, proceed no further. The.writ is ordered to issue in this case.
(Circuit Oourt, W. D ·. Pennsylvanfa.
Letters patent for improvements in mowing-machines, granted to Ephraim Bmith,-one numbered 238,035, and dated October 5, and ;mother numbered 298,249, and dated May 6, 1884,-coD.strued, sustained, and heW. to be infringed. Following Manufacturling 00. v. Deerirtg,20 Fed. Rep. 795.
In Equity. , On 'f41aI hearing. For hearing on motion for preliminary injunction, seeao Fed. Rep. 795. , George Harding and Jilranei8 T. Ohamber8, for complainant. Wll8t Jc Bond, for respondents.
ACHEsON,J. The bill of complaint here charges the defendants with infringing two letters patent for improvements in mowing.machines. granted-to Ephraim Smitli,the plaintiffs' assignor,--one numbered - 233,035, and dated October 5,i L880, and the-other numbered 298-,249, and dnte<lMay 6, 1884. The-case was originally heard and considered by the> CO'Urt upon a motion for a preliminary injunction, which was allowed;: the views entertained by the court being set forth in an opinion reported in 20 Fed. Rep.795.· Nothing, I think, has been shown at final cause any departure from the conclusions expressed in thlit opinion, and little need be added to what was there said. 1. The distinguishing novelty of Smith's invention of 1880 is hisbalancing lever, pivoted to the movable hingEl-'bar, and connected at its.inner and longer end to a chain having a yielding support, and provided . with mechanism for adjusting the chain, whereby both. the outer: and inn:er:ends of the finger-bar. are. counterbalanced, so that the finger-bar shall rest very lightly on the ground and ride freely over obstructions. Innone· of-·the prior patents do 1 find Smith's invention as set forth in his seoond.and thirdclaims,..,,-the ones here infringed. The invention iss. meritorious one,and the owners of the patent should be protected agmllst!a-machine like the defendants',whioh embodies the substance -of"tbe:iniention, while differing· in some formal particulars. I oannot:C()DCur with the: defendants in,the .view thakthe - G,is1ln--elementof the by the second claim .of tho
patent. In the' first claim it is one of the specified constituents of that combination, but it is omitted from the second claim. Certainly, then, itis not to be lightly imported by implication into the claim. Presumably it was purposely omitted; In fact, the lifting-lever, G, is neither a neceASarynor a. proper element of the combination in question, for the declared end thereby to be accomplished is this: "Whereby the weight of the finger-bar is partly sustained,and its outer end counterbalanced when the machine is in operation, substantially as herein set forth." But the lifting-lever, G, does notc:lo-operate to produce this result. In truth, it is out of action when the machine is in operation. Its function is to throw up the finger-bar when the machine is not operating, and when the lifting-lever, G, is used the spring ceases to act. The argument that the third claim is for an inoperative combination, because it on'!itsto specify the hinge-bar and means for 'securing the chain, is not convincing,as the claim clearly has reference to a mowingmachine'asdescribed and illustrated in the specification and drawings. '.' In respect, to the alleged prior use in machines manufactured by C. M. Russell & Co. at Massillon, Ohio"it is sufficient for me to say that the evidence, taken altogether, shows, at the utmost, only an unsuccessful and abandoned experimental use. 2. In the use of a spring-supported finger-bar of great length, constructed under the patent of 1880, a practical difficulty was encountered from the springirigand moving upward of the finger-bar in the middle by its own unsupported weight, and that of the cutter-bar mounted thereon, so that the cutter-bar would bend downward at the outer end, and not work freely in .jtil guards or ways. As the result of study and experi.ment, the patentee obviated this difficulty by the invention covered by the patent of May 6, 1884, which consists in making the finger-bar with a downward curvature in the middle, in the manner explained in the specification, sO that the finger-bar, when sustained aUhA inner end and ready for action, will be practically straight. The defendants contend that the patent does not disclose a patentable invention, but to that proposition I am not ready to assent. . The problem which confronted the patentee was to so construct the fi·nger-bar as to make it lie straight upon the when sustained from its inner end; and he solved it by simpIe means, it may be, but successfully, and with highly beneficial results. The problem was new, and its successful solution was not obvious. The illleged:prior use of this invention by the defendant William Deering & Co., at PUmo, Ill., is not established by evidence satisfactory to .me. Nothing of this kind was asserted at the preliminary hearing, although such use of it, if it was as now claimed, must have been then known to Deering and Steward, whose affidavits' were read at that hearing. Moreover; the exhibit "Plano, Cutter-Bar," prod uced in support of this branch of the defense, is discredited by the testimony of Mr. Gill, a witness for the defense, who states that it undoubtedly had met with "an aCc:lident,' which' accounted for its condition in respect to curvature. The testimony ofLewis Miller as to prior use by his firms is not only