testified that his automatic device was then in use at No. 8,and that it was seen by the committee, and by him explained to them, or some of them; and his statements were corroborated by several witnesses who belonged to the company in 1869, and later. The surviving members of the committee, as well as several members of their company who went with them, were subsequently called, and testified that neither the Flanders device, nor anything like it, was shown to them by him or anyone else, and that they never saw or heard of that device in engine-house No. 8, or elsewhere, during their visit to Boston. The records of the Boston fire, department, covering the period of alleged use, make no mention of such a device, and it is incredible that Flanders should have invented or iJ,ltroduced an improvement of lluch marked utility without bringing to the attention of the fire department, or making an effort.to its obWn .a. pateutfor it. " ',. ' The remaining question is that of infringement. Thecomplainant's t\ll'O attpert witnesses that the device used by the defendant in its contained the invention em braced in the first and fourth claimsofthe patent in suit, and the defendant's only expert witness testified,on cross-examination, to the same effect. It is true that in the defendant's device the trip-rod receives the stroke of the hammer in its backward or reflex while in the device described in 'the Bragg rod receive$the blow iIi .the forward"or direct, stroke of the hammer.· But this mere alteration of the location of the trip-rod would readily occur to any skilled mechanic. The effect of the. is the same, whether the rod receives the blow in the forward or oackward action of Without dwelling in detail upon this and other stru<;tu.ral differences, it ill sufficient to say that I am satisfied the defemiant's device embraces all the elements of the Bragg invention. The Ihave reached. are in harmony with the decrees entered in J]ragg v.Oity of Portland, in the district of Oregon, Bragg v. Oily of San Jqa6, it?-, the northern district of California, and the opinion of Judge SAWYER in Braggv. Oily of Stockton, 27 Fed. Rep. 509., Injunction granwd as prayed for, and the case referred to tlle master to take testimony and report the damages.
'M<JBRIDE tI. GRAND
(OwcuU OouTt,8. D. Iowa, O. D. November 18,1890.)
OF CLAIM-RIDING ATTAOlIMElIT FOB 'PLows. ' :' On a bill of letters patent No. for "a riding at; tachment'!for plows;" complalnant contends' that the/atent covers a combination , ofthr(lewheels 80 arrangea ,as to carry the,downwar pressure of the plow upon tbe eartb, and tbus reduce friction and lighten the draft. anll, also prevent the' pack;ing of ,the eartb at tbe bottom of the furrow. The object aatually sought; as stated in tb,e specifications, was "to vrovide a simple, ",tronlt, durable attachment "for plows that can be more readily applied and adjusted to operate a Vlow steadily; ,and to regulate ,the depth and Width ot·turrow sUces, b;y th.e o41e.rator, s,eated. upon
M'BRIDE V. GRAND DE TOUR PLOW CO.
the carriage." The idea of diminishing friction by carrying the plow was· Dot hinted at in any of the claims or specifications, and while the three wheels necessary therefor were shown by the drawings, one of them, attached to the end of the plow-beam, was not referred to in either the claims or specifications. Held, the combination for the purpose claimed is not covered by tbe patent, and if complainant was the first to use it he is presumed to have dedIcated it to the use of the public.
On rehearing. For former report, see 40 Fed. Rep. 162. Cole, Me Vey &- Clark, for complainant. John G. Manahan, fqr defendants. SHffiAS, J. This cause was heard on the merits at the Octoherterm, 1889, of this court, and an opinion filed, holding that the charge of infringtlment was not sustained. See 40 Fed. Rep. 162. Upon applica;. tion of complainant, a rehearing was granted, and counsel have fully re-presented their views of the facts and authorities. On part of complainant it is urged that the court in the former opinion restricted the Bcope of complainant's patent unwarrantably, it being now claimed that complainant was in fact the first one to invent and perfect a practicable sulky plow, so arranged that.when in operation the weight of the plow and the downward pressure are largely carried on the wheels, thusdiminishing the friction that would otherwise be caused between the plow proper and the earth, and which produces two beneficial results, to-wit, the reduction of friction, already named, thereby lessening the draught upon the horses, and preventing the bottom of the furrow from becoming packed and hardened by the passage of the plow over the land, as is the case in ordinary plowing, where the whole weight and pressure is' exerted on the bottom of the furrow. It cannot be well questioned that the plows actually manufilCtured by complainant do possess the advantages claimed. There are to be found therein the three ,,,heels shown in ,the drawing attached to the letters patent, and marked therdn, "il/'," "W," and" M," and through the co-operating effect of' these three wheels the weight of the plow and of the driver, instead of being on the bottom of the furrow, is transferred to the wheels and their contact with the ground. The difficulty in the case, however; arises from the fact that. the combination is not covered by the patent issued to complainant. If. he was the first one who conceived the idea of thus transferring the pre.<:sure, and consequent friction, from the bottom of the furrow to the points of contact of wheels, bearing the weighL of"the plow and driver, with the earth, and if he was also the first to make a practicable com bination of the means necessary to effectuate the idea,-questions which I do not now consider,-he should, in order to secure the fruits of his invention,have secured a patent therefor. If the specifications and drawings attached to the pattlnt issued show the combination or means necessary to work out the result, but the same are not included in covered by the claim or claims of the patent, the presumption is that. the patentee thereby intended to dedicate the same to the l'ublic. Miller v.' BraB8 Co., 104 U. S. 350." . . The patent ,issued to complainant comprises five claims. There is not to be found therein a reference to the wheel carried at the front end of
the plow-beam, and which is marked "d"" in the drawings. If every one of the parts called for in the five claims of the patent, and idE\ntified by letters referring to the drawings, are furnished, the front wheel would be wanting in the combination. It is urged that the words "plow-beam," found in the claims, are sufficient to include the front wheel, because it is attached to the front end of the plow-beam, but this construction is clearly inadmissible. This wheel is not a part of the plow-beam, nor is it immediately attached thereto. All other parts of the connections affixed to the front end of the plow-beam are specifically named in the claims, except this wheel. The omission to name this wheel as one of the co-acting parts of the combination is clearly due to the fact that it is not part of the combination sought to be patented. The devices placed at the front end of the plow-heam are intended to enable the driver to regulate the depth of the furrow, and .are covered by the second claim in the patent, which is as follows: . "The clevis., a, the rack, b, the frame. c. the caster-wheel bearer, d, d', the lever, g, and the link, U', arranged and combined relative to each other and a plow-beam, sUbstantially as shown and described. to operate in the manner set forth, for the purposes . The .depth of the furrow is regulated by elevating or depressing the front end of the plow-beam, and this is accomplished by the combinationdescribed in claim 2, and this combination does not depend in any degree upon the presence or absence of the wheel, "d"." As it is not one of the co-acting parts in the combination relied upon to enable the driver to regulate the depth of the furrow, it was not named in the claim, and cannot now be read into the claim for any purpose. The same difficulty exists in regard to claim 5, which is mainly relied on in support of the broad construction now claimed in favor of the pat..ent. It reads as follows: . '''fbe aXle-frame, r, r'. rtf. 8, 8, carrying a driver'S seat. the rack, r,n, the wheel. W, the wheel-bearer, h" h', h". carrying a wheel, m, and the lever. n. arranged and combined relative to each other and a plow-beam and plow, substantially as shown and described. to operate in the manner set forth, for the purposes specifil:'d. " The combination thus described is· for the purpose of enabling the driver to regulate the 'ltidth of the furrow, and there is not found therein any reference to the wheel, d!'. It does not form part of the comhinaation relied upon by the patentee for enabling the driver to regulate the width of the furrow, and for that reason was not included in the list of parts needed to makethe proposed combination. It clearly appears that the combinations described in claims 2 and 5 are those intended by the patentee to secure the object sought to be accomplished, as set forth in the specifications, to-wit: "My object is to prOVide a simple. strong, durable carriage attachment fot plows that can be more readily applied and adjusted to operate a plow steadily, and to regUlate tbe depth and width of furrow slices by the operator seaten upon thecaniage."
M'BRIDE fl. GRAND DE TOUR PLOW CO.
Itis not herein stated that it was purposed to reduce friction and pressure upon the bottom of the furrow, and thus lessen the work of the horses, and also to prevent the bottom of the furrow from being compacted and hardened. The combination described in claims 2 and 5 doubtless give a steady movement to the plow, and enable the driver to regulate the depth and width of the furrow, but they are not intended to cover the idea of carrying the weight of the plow and driver upon wheels, and thus reducing the friction, for to accomplish that purpose it is necessary to call into play the co-acting effect of the three wheels shown in the drawings. As already stated, no reference is made to the wheel "du" in the claims, nor is any description given of the operation of this wheel in the specifications having the remotest reference to its ing, in combination with the other wheels, to reduce the friction by transferring the weight and pressure to the three wheels named. None ofthe claims of the patent can be construed, either singly or in combination with the others, if that were permissible, so as to include the idea of thus the friction of the plow when in operation. The patent must be construed, therefore, to cover only the combiriations intended to regulate the width and depth of the furrow, anq, as to these purposes, I see no reason for changing the conclusion reache'd upon prior hearing that the complainant is not a pioneer in these directions, and his patent cannot, therefore, be broadly construed. By its terms, the patent is confined to the combinations intended to enable the driver to regulate the depth and width of the furrow from his seat upon the carriage of the plow, and to give the plow a steady movement when in operation. To now enlarge the scope of the patent, so as to include the idea of reducing the friction on the bottom of the [urrow, and the means for accomplishing the idea, would require reading into the specifications the expression of a purpose not found therein, and into the claims an tional element not referred to or included therein, and this is not petmissible, although it is true that this element is shown in the drawings. of the patent. The idea of relieving the friction on the bottom of the furrow, by transferring the weight of the plow and the driver sled formed by the bottom of the plow in the old-fashioned methods of plowing to the wheeled carriage supporting the weight thereof, has nq necessary connection with the idea of enabling the driver to regulate the depth and width of the furrow from his seat on the carriage. The construction to be given to a patent covering the means for accomplishing the latter purposes cannot be enlarged by showing that the patentee was the first to invent a means for reducing the friction of the plow. Whether he is or not a pioneer in the latter field of improvement is immaterial, when the question is, what scope is to be given to his patent covering other and distinct purposes? I can see, therefore, no sufficient reason for changing the view taken of complaInant's patent in the opinion filed at the first hearing, nor upon the question of infringement, and the decree dismissing the bill must, therefore, be affirmed.
(Oflrcuo£t Oowrt, N. D. RHno0£8. July 22, 189</.) .
PATENTS FOR INVENTIONB-NoyELTY.
The following specification of patent No. 862,679, granted May 10, 1887, to George "(Ill) In a machine for making roads, the coxq.bination of a carriaie or body frame, supported on front and rear traveling wheels, a diagonally disposed scraper-blade extending across and supported beneath said body-frame, and an extended longitudinally adjustable rear axle, Whereby one of thE\rear traveling wheels can be projected laterally beyond the working line of said diagonal scraper-blade, for the purpose set forth. "
W. Taft, is not void for want of novelty:
Though, in addition to this long lateral, movable axle, the machine patented has a devlcefol' adjusting the frame on the axle by means of a rack and pinion, the patent is infringed by a machine having the long bind axle, on which the frame is fastened, by clamps held in place by nuts, the loosening of which enables the operator to shift the frame on the axle.
In Equity. Dupee, Judah &- Willard, for complainant. E. H. Gary, for defendants.
J. In this case the defendants are charged with the of patent No. 362.679, granted May 10, 1887, to Qeorge W. Taft, for a "machine for making. repairing, and cleaning roads." The scope and object of the invention, as stated in the specifications, relate "to improvements in that class of road-working machines in which a diagonally disposed scraper or plowing blade is mounted in conn 'ction with awheeledcarriage or supporting body, and provided with mechanism whereby the scraper can be adjusted to the different reqnired workingpositions. * * *, Another important object is to provide in a diagonal road-scraper or road-working machine a shifting rear axle, whereby the relation of the rear end of th El body and the rear traveling wheels can be varied or changed to meet different conditions of work to beperformed." The constr.uction of the machine in the particular mentioned in the last paragraph consists mainly in a hind axle much longer than the width of the frame which carries the scraper, and the frame so mount on its axle that the axle may be slid laterally in either direc'd tion, so that the frame may be neareTto one hub than the other, and the advantages of this feature in the construction are stated in the patent to be, thatUit in a Kreat measure overcomes rocking action of tbe body of the machine as the wheels pass over uneven ground. It also permits of tberear wheel being set over, as indicated by dotted lines, (Fig. 3,) so as to brace against the bank when plowing the second round, or wheIi tnoring the earth. turned up by the first furrow from the shoulder of the towards the center of the road. It'also allows an adjustwheels, so that the win?row of earth can be deposited inside t1W .1me,o( the wheel when desired, so that the wheel can get support against 'the windrow. )tlilso allows adjustment tOllvoid chopping action of the blade, by the wheels'runninK over clods when the machine is cutting deep, as well as facilitating changes in the relative