are in harmony with tbe views expressed by Judge HAWLEY Intbe'cue of Johfi,Mm ,v. PaciM ,RoUing-Mill8 00., 47 Fed. Rep. 586, which was · suit upon the JohnsoD patent for improvements in street-railroad rails, above referred to in connection with the discussion of the prior art. Let a decree be draw.n dismissing the bill with costa.
DEDERICK ". GARDNER
AprU 10, 1_)
cmrcuAt Court, N. D. Nf/W York.
Letters patent No; 145,029 and' No. 841,559, issued to Peter X. Dederick November lll119, and May 11, 18&S, the latter being upon a divisional application for an improvement in horizontal "continuous" baling presses" cover, as the gist of tbe invention, a devioe consisting of a loose connection, as a chain or rope, between the toggle and the horse lever, sl) that the toggle is pulled back and forth aoroBsthe center lhie by the vibration of the horse lever. Held that, in view of the fact that the press has into extensive use, the device must be considered tq have invention, over the /Iomewhat analogous device shown in patent 261,828, issued July 18, 1882, to George Ertel, and,whioh is adapted to an uprill'ht press.
" ' ,
!'OB INvBNTIONS.....INVBNTIONS-BALING PBBSSBS.
Letters patent No. 282,400, issued to Petedr. Dederick, as assignee of ,Albert A. Gehrt, are for a method in a baling press, resisting the baokward movement of the traverser caused by tli.e expansion of the ha.Y, consisting of the application of friction, so as to stop the motion gradually. Claim 8 covers the combination, with the tl'lloVllrser havins- ,the rearward extension, of the lining, or planking and the se,t sorew for adjustlDg the same, substantially as desoribed: Be/,d that, if this inTolved' any patentable invention, it'is limited to the speoi:llo device, and is not infringed by the device covered by patent No. 849,934, issued September 28, 1886, to George Ertel., , .
InEquity. Suit by Peter K. Dederick against Henry Gardner aDd others for infringement ofa patent. Decree for complainant. Church Church, for complainant. G«Y1'ge H. Knight, for defendants.
COXE, DJstrict Judge. This is a suit for the infriQgement of three patents,N<;>s; 415,029,341,559, and 232,400, granted to the complainant November 12, 1889, May 11, 1886, and September 21,1880, respectively, for improvements in baling presses. The latter patent, No. 232,400, was granted to complainant as assignee of Albert A. Gehrt. The application for the first two patents was filed October 31, 1882. This application was divided and a new one filed December 18, 1885, on which. No. 841,559 was granted. The invention of No. 415,029 relates to in the manner of horse lever to the toggle in power applying devices of "continuous" baling presses. Letters pate,nt No. 257,153 granted to complainant May 2, 1882, show mechanism qy which the toggle is pushed from one. side of the center line to the other, the back expansion of the hay operating to return the traverser and project the of the toggle alternately out at opposite of the press as the horse lever is, worked from side to side. ThiJ
DEDERICK t1. GARDNER.
is known as a push-power device. The patent in hand describes a pull. power device. The substitution of a pull-power mechanism for the push-power of the older patent is the essential feature of the invention. Instead of pushing the toggle over the central line by direct contact with the head of the horse lever, it is pulled over by the horse lever through the intervention of a 1008e rope or chain connection. After describing the various figures of the drawing and the operation of the machine the patentee says: "These modifications in the form and location of the horse lever and cam maybe multiplied indefinitely so long as the central idea is preserved of having the lever or the cam thereon- connected to the toggle by a loose connection -sucb as a rope, chain, or the like-so that the vibration of the horse lever will draw the toggle back and forth across the center, as stated." The claims involved are as follows: "(2) In a baling press, the combination, with a double-acting toggle and reversible connecta double-acting reversible horse lever, of a ing member secured at one end to said toggle and at the other end to the and the said connecting member will be horse lever; whereby the said drawn bodily across the center alternately from opposite sides of the press when the horse lever is vibrated, substantially as and for the purpose set forth." "(4) In a baling press, the combination with the traverspr, of the arms, E, the double-acting pitman extending beyond tbe point of connection with the arms, E, the double-acting horse lever, also extended beyond its pivot, and the loose connection-such as a chain-for connecting the extended end of said pitman and horse lever, substantially as described." "(7) In a baling press, the combination, with a double-acting toggle mov. ing in a horizontal plane, of a reversible horse lever or sweep operating in a plane substantially parallel with the plane in which the toggle operates, and having a rounded or end, and a flexible connection attached at one end to the toggle and at the other end to tbe rounded or drum-shaped end of the horse lever or sweep, as set forth." The invention covered by the single claim of No. 341,559 was originally part of No. 415,029. As the granting of the latter patent was delayed by an interference commenced by the defendant George Ertel, the complainant filed a divisional application designed to cover an arrangement of the power mechanism, not involved in the interference proceedings. The distinguishing feature of the invention is that the horse lever is mounted upon a pivot separate from the pivot on which the arms of the toggle are mounted. Instead of having the horse lever and fulcrum arms on the same pivot, each has a pivot of its own. The claim sufficiently describes the invention. It is as follows: "Ina baling press, the combination, witb a traverser and a double-acting toggle. of a horsB lever mounted upon a pivot separate from the pivot of the outer arm of the toggle. and a loose connection between the borse lever and toggle. whereby upon the vibration of the horse lever tbe toggle will be pulled back and forth across the center, substantially a8 described."
The defense to these patents is that they are void for lack of patentable novelty. Infringement is not seriously disputed. The patent No. 261,323, granted to George Ertel, July 18, 1882, is v.50F.no.1-7
defendaJlts... 'ls, upright, the vertically ofl1orizontally. ,<;lescription:oqhis Suffice it to say that '}'hich it operates is somewhat analogous that ,tIle' complainant's structure, mechanism, is wholly Ullsuited to operate in a horizontal ,press. Instead of bein,g a and durable machiJ;le, it is ,the reverse of this.. If the pQwerdevice described could be made to operate in a horizontal press ataH it ,be a most cumber,some, ,structl,lre, reqpiring, in place of tl::le ct;>nlpact frame of complainant's \v,hich' is wide,. the substitllt!ori, of a frame between 12 and :18 .feet wide. The· difference between the two ,presses is the difference bet\veenpartialand complete success. As the Ertel press of 1882 is the nearest approach to thec6mbinations of the claims in question, it is not necessary to examine other references. It is thought thatcGmplainllnt'is 'entitled to the credit of having made the first operative pull-power machine for horizontal presses, and that the producti<>U' of such' a machine required the exercise of the inventive [acuIty. f\swas saiq}?y Mr. Justice BROWN tn Electric Co. v. La Rue, 139U;8.,,601, H Sup. ,Ot. Rep. 670: "While the invention does not seem to be one of great importance, we think the adaptaliioniof this· somewhat unfamiliar spring to this new use, and its consequent simplifi.cationof mechanism, justly entitles the patentee to the rights ,of an,invent\>f." ,
The fact that this.· has. gone into use and .has been adopted by the defendantJs, to the exclusion of devices patented by Mr. Ertel, is entitled to great weight. Magowan v. Packing Co., 141 U. S. 332, Sup. Ct. Rep. 71; Washburn« Moen Manvj'g Co. v. Beat 'Em AU Barbed- Wire 00., 58 '0.155'5, 12 Sup. Ct. Rep. 443. The claims quoted above seemtobeaptly 'expressed to cover the inventions, and that they are infringed there can be no doubt. In letters patent No. 232,400 it was the design of Gehrt to provide means for resisting thfl retraction of the traverser produced by the ex. pansion ofthehay;''for the purpose of preventing shock. This is done by applying more or hiss friction to the traverser during its backward movement, thus stopping its motion gradually. The specification says: may be employed in carrying out this idea; but I prefer to adjust the lining or planking, E, by' means of an adjusting screw Or screws,S,'so as to cause it to bear upon the top of the npper rear exttmsion ofthe traverser, as shown in :l!'ig. 1. By operating the screw the lining or planking can !:>e made to bear more or less tightly, as will be readily understOod. The .lining or planll;ing may be made permanently contracted, if desired,and the. same result be
'. The third claim <lllly is involved. The second claim, which is much broader,has been invalid by this court. Dederick v. Siegmund, 42 Fed. Rep. 842.. The third claim is as follows: "(3) 'rhe combination, with the traverser having the rearward extension, of the lining or planking and the set-screw for adjusting the same. substantially as, described, for the purpose specified."
.' DED:FlRICIt l:'. GARDNER.
The defenses'll:re noti-infringement, anticipation,and lack of patentable novelty. . . 'The apparatus for checking the backward movement of the (lonsists of Q. clamplever pivoted in its middle on the point of aacrew. It is a double self-acting clamp. When the incline on the rear of the traverser strikes the incline dIi the Tear of the le,'er the forward end of the lever is forded down upon the top of the traverser Rod arrests its backward motion. Whether the traverser comes back with a heavy or a light rebound is immaterial, for when it has reached the point where it is desirable to stop it the clamp catches it instantaneously and holds it firm. This device effectually prevents further backward motion, but offers no resistance to the next forward movement of the traverser. In this respect it is superior to the complainarit'sdevice, which does not anjust itself to the varying, rebounds of the traverser, which sometimes returns with great force and at other times with comparatively little force. If, for instance, the lining is set to arrest a fast return and the back expansion is light the front end of the traverser will not clear the feed opening, thus causing inconvenience and delay. The defendants' screw does not perform the same function as the set-screw of the patent. The latter is used to force down the lining or planking and hold it in position to resist the backward throw of the traverser. The former is the pivot on which the lever operates, but it does not regulate the amount of the clamping force. The defendant Ertel obtained a patent, No. 349,934, on the 28th of September, 1886, for the apparatus used by the defendants. Whether the defendants infringe or not depends upon the construction of the claim. If a broad construction is justifiable, one which gives complainant the benefit of the doctrine of equivalents, infringement may be found, otherwise not. In the first place, it may well be doubted whether the subject-matter of the Gehrt patent can in any view be regarded as belonging to the realm of invention. The problem he had to solve was an exceedingly simple one. The traverser bounded back too far. It did not require even a skilled mechanic to appreciate this defect. The remedy might not have occurred to the farmer who used the press, but had he called to his assistance the village carpenter, and asked him how to stop the traverser, it is, at least, possible that he might have replied-unconscious that his answer was giving him a place by the side of Bell, Brush and Edison -" Put on a brake." It is, and for years has been, a matter of common knowledge in many similar arts that friction should be applied when the object is to stop or retard a moving body. The record discloses many instances where it has been used to accomplish results very similar in principle to that accomplished by Gehrt's device. For instance, if the word "traverser" were substituted for "shuttle" in the following quotation from the Haskins patent of 1868, it would de!,cribe the Gehrt mechanism in all essential particulars:
"To check this momentum gradually and arrest the motion of the shuttle at the proper point to receive the return blow of the picker shaft, a shuttle-
FEDERAL REPORTER, vol.
binder is generall:r placed upon or in .the side of each shuttle-box, the operation of which binder is gradually to narrow the width of the passage in which the shuttle is moving and produce more or less friction upon the shuttle until it is brought to a stand-still. As the speed of looms is liable to be changed at times 80 that the rate of motion of the shuttle and its momentum will be greater at one: time, than another, it is desirable to vary the amount of friction or pressure exerted by the binder upon the shuttle, so that the shuttle, whatever its rate of speed, may al ways be stopped at the same point." It is thought that this case belongs to that class of inventions where the doctrine of equivalents cannot be invoked to suppress improvements. Where change of form or combination only is involved, each inventor must be content with the mechanism claimed by him. McCormick v. Talcott, 20 How. 402; Burr v. Duryee, 1 Wall. 531; Railway Co. v. Saylea, 97 U. S. 564; Bragg v. Fitch, 121 U. S. 478, 7 Sup. Ct. Rep. 978. The traverser, moving in the press-box, was forced back too far, and Gehrt made the box smaller at the desired point, and stopped it. It is by no means clear thaUhisinvolved invention. McClain v. Ortmayer, 141 U. S. 419, 12 Sup. Ct. Rep. 76; Cluett v. Claflin, 140 U. S. 180, 11 Sup. Ct. Rep. 725; Clothing Co. v. GlO1Jer, 141 U. S. 560, 12 Sup. Ct. Rep. 79; Blake v. Scin Francisco, 113 U. S., 682, 5 Sup. Ct. Rep. 692; Pope Manufg Co. v. GormuUy, etc., Manuf'g Co., 12 Sup. Ct. Rep. 637, 641643. But if the third claim can be sustained at all, it must be within narrow limits and confined to the precise mechanism claimed. As Gehrt could not claim all means of arresting the traverser by friction, and must be strictly confined to th.e method described, which consists in adjusting by a set screw the planking of the' press-box to pinch and hold the traverser, and as the defendants do not use this mechanism! they cannot be held as infriilgers. The complainant is entitled to a decree upon claims 2, 4 and 7 of No. 415,029, and the single claim of No. 341,559, but without costs.
ASHTON VALVE Co. V. COALE MUFFLER
!Circuit Court, D. MarYland.
February 19, 1892.)
PATENTS POR INVENTIONS-INVENTiON-PRIOR ART-SAFETY-VALVES.
Letters patent No. 200,119, issued February 12, 1878, to Ashton, for an Improvement in safety-valves" in so far as they cover, in claim 1, merely a combination of an under-discharge pop-valve, an inner casing,. and an outer casing with a suit· able outlet, are void fqr want of inventiolJ, in view of the patents to Ashfield, (No. 97,472. Dec. 7, 1869,) to Prescott, (No. 121,659, Dec. 5, 1871,) to Guels, (No. 195,003, Sept. 11, 1877,) and English patent No. 891, of August 23, 1872, to Giles.
SAlliE-EXTENT OF CLA.IlII-COMBINATION.
In his specifications Ashton state's that, In order to prevent back pressure, he provides the chamber inclosing the spring of his pop-valve with special ,vent-boles for tbe steam wbichfinds its way into it, but these vent-holes are not mentioned in any claim, and tbe claims cover only a combination of his peculiar valve with a spring chamber, and an outer casing, "arranged to operate as described." Held, that the vent-holes, if covered at all. are claimed only in combination with the pe· ouliarpop-valve. aud·there is lloinfribgemellt in using them with a different form of pop-valve.