FEDERAL i REPORTER, ' . ·
vol. 39.
v. McCormick, 9?, lO?; 97 8.126; v. Rep: 425 .. The InventIon WhICh the subject-matterof the Lee patent iil suit is Ii foreign one. This is clear from the 'Lee English patent in evidence,'andother proofs in this Under sections 4886,'4920, 4923,Rev. st.; the only evidence that,' can be UElcd in proof ofa foreign invention for any purpose is that comilll:'; through, the channel of a patent or printed publication. It h,1s been repeatedly held' that 'an English patent does 'not exist as a patent for uses, under the sections of the ;Revised Statutes above referred to, until the enrollment or senUng' of the complete sp'ecifications, at which time the English patent becomes open to the public,. Smith v. Goodyear, 93 U. S. 486,498;' Bliss v. Merrill, 33 Fed. Rep. 39; Howe v. Morton, 1 Fish. Pat. Cas. 586,595; Brooks v. Norcross, 2 Fish. Pat. Cas. 661; Manufacturing Co. v; Ra11road'Co.. 26 Fed. Rep; 522'; Elizabeth v. Pavement Co., 97 'D.'S. 131; Schoe'rken v. Swijt,ete., Co., 19 Blatchi. 209, 7 Fed. Rep. 469; Coburn v. Schroeder, 11 Fed. Rep. 425. A decree may' be,drawn for complainant in accordance with this opinion. .' , , " I, .
y.
JOLIET MANUF'd
Co.v.
KEYSTONE MANUF'G
Co. et aE.
(Oircuit Oourt, N. D. Illinois. f. PATENTS FOR INVENT!ONS-INFRINClEMENT.
July 22, 1889.)
Complainant's patent, No. 188,263, issued March 13. 1877, to Andrew H. Shriffier. for an 'improvement in "orn-shelling machines." the distinctive feature of which is a contrivance for the deliverv of the corn in a horizontal direction from the elevator:tothe shelling mechanism. is not by a feeding contrivance which delivers the corn immediately from the elevator to the shelling mecklism, both machines employing an endless apron to deliver the corn. ' A leg or brace attached to the lower end of the elevator and frame of the machine, to regulate theheight of the elevator, is not patentable, for want of novelty
2.
In Equity. Bill for injunction. Mnnday, Evarts &- Adcock, for complainant. John G. Manahan, for defendants. BI.ODGETT, J. This is a bill for an injunction and accounting by reason of the alleged infringement of letters patent 188,263, granted March 13, 1877, to Andrew H. Shriffier, for an "Improvement in corn-shelling machines," and which has been duly assigned to complainant. The .complainant's machine, in its working parts and their arrangement. is :substantially like the mac4ines covered by the patents of August, 1861, .and May, 1866, to Augustus Adams, and of October 15,1872, to Henry A. Adams, except that in the complainant's machine the gravity chute
JOI,IET MANUF'G CO. V. KEYSTONE MANUI<"G CO.
799
by which corn is carried from the end of the elevator into the shelling device is dispensed with, and with the further exception that in complainant's ,machine the shaft of the shelling-wheel, K, is slightly raised, so that the shaft of the shelling-wheel is nearly on a line with the shafts of the beater-shaft, D, the beveled runners, H, and picker-wheels, F. Shriffier does not claim to have added anything new to the Adams machines, before mentioned, or to have changed them in any particular, except by leaving out the gravity chute, and slightly changing the relations of the picker-wheels and beVE';jled runners to the shelling-wheel. The distinctive feature of the Shriffier machine is what he terms the "horizontal feedj" that is to say, the corn is delivered from the elevator directly over the beater-shaft, which he places below the line of travel of the corn, instead of above it, as Adams placed it in his chute, and from the beater-shaft the corn is carried horizontally, or nearly so, along the moving surfaces of the picker-wheels, F, and beveled runners, G, into the shelling device, consisting of the rag-irons, J, and shelling-wheel, K. This special characteristic of the complainant's machine is described in the specification as follows: "It will be noticed that the path of the ear from the ;evator delivery to the shelling-wheel is nearly a straight horizontal line, and it may be made quite so, if desired. At no point does the ear fall rapidly by its own weight. nor is the gravity of the ear at any point relied upon to-carry it forward solely, but all of the time, and at all points, it is carried forward by t.he moving surfaces of the several wheels, beaters, etc., which, for this purpose, are so arranged that the path of the corn shall 1>e horizontal, or nearly so. This arrangement prevents the a1>rupt change of direction at the elevator deli very which is usual in machines of tlJis class, and which, by causing the ear to tip at the rear end and enter the throat in a Vibrating manner, is productive of a great deal of trouble which is entirely obviated by the present arrangement. By the present arrangement, also, the corn is caused to proceed in a regular lind even manner, being fed along smoothly, instead of falling rapidly, and then being thrown violently forward, as has be"n customary." In other words, Shriffier changed the Adams machines by dispensing with the gravity chute, locating the beater-shaft under instead of over the stream of ears of corn as they were delivered from the end of the 1'1evalor, and, as I said, slightly raising the shaft of the shelling-wheel, so· that it may be more nearly in a horizontal line with the shafts of the wheels intermediate between the beater and the shelling device. These characteristics of the complainant's machine are covered, or claim to be covered, by the first, second, third, and fourth claims, which are: "(1) The combination, with the shelling-wheel in a corn-sheller, of the feeding wheel or wheels, and beater or beaters, arranged snbstantially as specified, so that the path of the corn shall be horizontal, or substantially so, from the delivery end of the elevator to the sheller-wheel. (2) The cornsheller in which the path of the corn from the delivery end of the elevator to' the sheller-wheel is horizontal, or SUbstantially so, along the moving surfaces of wheels, beaters, or other like contrivances for urging it along, substantially as specified. (3) A corn-sheller prOVided with a horizontal, or substantially horizontal, feed, continuing from and inclUding the delivery end of the elevator, SUbstantially asspecified. (4) The combination witij the cornsheller having a horizontal, or substantially horizontal, feed, of an elevator-
.
--
800
FEDERAL REPORTER,
for bringing the corn up to the feed, having its delivery end uponalevel, or substanLally upon a level, with the feed mechanism, substantiaHy as specified."
The patent also covers a device for .regulating the pitch or inclination of the elevator by means of legs, which are fastened to the lower end, or near the lower end, of the elevator, and carried from there to the frame of the machine, to which they are fastened by pins or bolts, and by changing the length of these legs, by means of a succession of pin or bolt holes, the height or pitch of the elevator can be changed; and this feature is covered by the fifth, sixth, and seventh claims of the patent, which defendants are charged with infringing. Defendants by their answer deny (1) the validity of the Shriffier patent, on the ground that he has made no material change in the Adams machines which involved invention; (2) that they do not infringe; (3) that the device for regulating the pitch of the elevator is old, and not patentable for want of novelty. Defendants manufacture and sell a corn-sheller which is constructed substantially in accordance with certain patents granted to Harvey Packer, since the date of complainant's patent. DefendantR' machine is unlike the complainant's machine in its shelling mechanism, and it also differs from complainantis machine, in the fact that the corn is delivered from the delivery end of the elevator directly into the shelling mechanism, instead of being carried horizontally over the beater, pickerwheels, and beveled runners, under the rag-irons, and against the shell' ing-wheel. The stream of ears of corn, as they leave the delivery end of the defendants' elevator, fall diagonally downward into the shelling mechanism, their fall and direction being, to some extent, secured by the beaters located upon the beater-shaft directly over delivery end of the elevator, which is the throat of the machine. It will be noticed that the first claim of the Shriffier patent is for the "combination, with the shelling-wheel, of the feeding wheel or wheels, and beater or beaters, arranged substantially as specified;" and a recurrence to the specifications shows that Shriffier has placed a beater-shaft immediately at and below the delivery end of the elevator, so that the corn, on leaving the elevator, is taken by this beater-shaft, and carried over the moving surface of the heater, onto the moving surface of the picker-wheel, F, and from thence to the beveled runner, G, whence it is delivered under the rag-irons to the shelling-wheel; and, as I construe this first claim, it is for the combination with the shelling-wheel of this beater, picker-wheels, aud beveled runners, whereby the corn is to be carried in a horizontal position into engagement with the shelling device. The defendants' machine, as I have' already said, has none of these intermediate moving surfaces interposed between the delivery end of the elevator and the shelling device, but the corn is pitched, so to speak, directly from the delivery end of the elevator into the shelling .mechanism, hesitating or over-riding ears being accelerated and forced into the shelling mechanism by means of the beater-shaft over the delivery end of the elevator. The seco.nd, third, and fourth claims of the complainant's patent are
JOUET MANUl<"G CO. V. KEYSTONE MANUF'G CO.
801
lmt a reiteration of the first claim, and what I have said with regard to the first claim applies with equal, if not more, force to the claims which cover the horizontal feed feature. In view of these considerations, therefore, it seems very clear to me that the defendants do not infringe the complainant's patent. Defendants do not have in their machine a forcing horizontal feed such as is specifically described and provided for in the complainant's patent, and covered by these first four claims, but, as I have already said, the defendants' feed is direct from the delivery end of the elevator into the shelling mechanism, partly by gravity, and partly by the action of the beaters over the delivery end of the elevator, and the corn in the defendant's machine is not carried forward to the shelling mechanism by the moving surfaces of the several wheels, beaters, etc., as called for and provided for in the complainant's patent. The defendants' shelling device being substantially new, so far as the proof shows, and different from those employed by Shriffier, and elevators for delivermg the corn to the shelling mechanism being old, as shown in the proof, (Kauffman patent of August, 1873, and the Adams machines above referred to,) and complainant saying in the specifications of his patent, "the corn is fed to the machine, as usual, by an endless apron or elevator," I can see no reason why the defendants were not at liberty to use the endless apron or elevator, which they employ to deliver the corn directly into the shelling mechanism, in the manner shown the Packer patents. I am therefore of opinion that the defendants do not infringe the first four claims of the patent, as charged. In regard to the alleged infringement of the fifth, sixth, and seventh claims, which simply cover the feature of adjustability as to pitch or incline of the elevator, I think it extremely doubtful, from an inspection of the defendants' full-sized working machine, which is an exhibit in this case, whether the defendants have this feature of adjustability of pitch which is covered by these claims in the complainant's patent; but, of the feature of adjustability by llleans of a leg or brace attached to the lower end of the elevator and the frame of the machine, it is enough to say that these devices were old. and used in the patent of Gray of August, 1870, for a hay-loader, where the same device is applied to change the incline of thfJ hay elevator as is applied in complainant's patent to change the incline of the corn elevator, but I do not think it necessary to go even into the older art to meet the question, as far as these clairns of changing the incline are concerned, in any elevator working with a corn-sheller, or a straw-cutter, or a threshing-machine, or a hay-loader, by means of which the article to be operated is brought to the operating device. If it becomes necessary to change the incline of such elevator, it could be readily done by propping it up in any of the mechanical ways WhICh are known to a mechanic, and the method adopted by Shriffier, and covered by these claims of his patent, is obviously old in its application to hay-loader elevators, and anyone had the right to apply it to the elevator of a corn-sheller. I am therefore of opinion that the defendants do not infringe the complainant's patent, and the bill is dismissed for want of equity. v.39F.no.14-51
802
FEDERAL REPOR'l'ER,
vol. 39. & CO., Limited. September 14, 1889.)
HURLBURT
et al. v.
CARTER
(Oircuit Oourt, No D. New York.
PATENTS-INFRINGEMENT-PRELIMINARY INJUNCTION.
On bill for. infringement of It patent, it appeared that the patent had never been adjudicated, and that many infringing devices existed. An averment in the moving papers that the patent had been recognized by the public was Dot supported by facts. The defense involved the validity of two patents. Defendant had invested large sums in business, with the knowledge of complainants, who were guilty of laches in asserting their rights. Defendant was amply responsible, nnd it appeared wonld suffer greater injnry from a pre· liminary injunction than complainants would if it were refused. He'd, that a preliminary injunctio·n would not be granted, even though defendant did not cast serions doubt on the validity of complainants' patent.
In Equity. On motion for a preliminary injunction. Bill by Charles A. Hurlburt and others against Carter & Company, Limited, to restrain an alleged infringement of a patent. Wells W. Leggett, for complainants. W. Caryl Ely, for defendant. COXE, J. The complainants' patent, No. 288,048, was granted to John H. Frink, November 6, 1883, for fln improvement in duplicate sales-slips. The patent has never been adjudicated. There is no proof of acquiescence. True, a general statement that the patent has been recognized and respected by the public appears in one of the affidavits, but it is unsupported by facts. Names, places, and figures are wanting. An indefinite averment of this character avails but little, especially when it also appears by the moving papers that infringing devices in large numbers have been openly sold and used since January, 1887, in the complainants' own city. The defendant insists that its copying-books are manufactured under a reissued patent owned by it, and that the complainants' patent is invalidated by a prior patent granted to John R. Carter. These defenses necessarily involve a careful analysis of the patents referred to, and a determination as to the validity of the reissue. Although they do not, as now presented, offer a formidable barrier to the complainants' recovery, yet, in the light of the final hearing, they may, perhaps, assume a different aspect. It is strenuously asserteo, and not satisfactorily denied, that the defendant has invested large sums inltsbusinesswith the knowledge of the complainants, and that the latter have been guilty of inexcusable laches in asserting and maintaining their rights. The defendant is amply responsible, and will suffer greater injnry if the injunction is granted than the complainants will if it is withheld. The cause is one which, if due diligence is used, can be prepared for argument at the next term of the court. In these circumstances, even though it be conceded that the defendant has not succeeded in casting serious doubt upon the validity of the
