672
FEDERAL· REPqRTER,
vol. 40.
the !!eoure attachment he has added the metnllic eyelet and washers to the gum of The claims must be restricted to the form and description of the patent, and thus construed they are not infringed. It is unnecessary to examine the other defenses The bill is dism.issed. '
PERKINS .,. EATON
et 01.
(OCrC1.llle aowrt, W. D. M1.chi.gan, S. D. December 24, 1889.) P4TBNTIJ 1'OR !NVENTIONS-h'FRINGEMENT.
Letters patent No. 228,77\1, issued to Willis J. Perkins, June 15,1880, for Improvements in mechanical movements, being a device involVing a combination of mechanicalparts, which in operation produce, by a peculiar method, the rocking of a shaft; with an adjustment for limiting the amount of the rocking movement and WhICh consists of a roller or its equivalent, ,moving freely on a slotted arm with varying tension, is not infringed by the rockin!l' movement used in the Raming-ton type-writer, which movement is, in an essentIal degree, produced by the hand of the operator.
In Equity. On bill tor an injunction. ThfYl7Ul8
Taggart &: Denison, for comrlainant. RichardJJdn, for defendants.
. SEVERE;NS, The complainant seeks in this cause to restrain the de-. {endants from infringing the rights secured to him by:letters patent No. 228,779, issued to him on June 15, 1880, for improvements in mechanical movements. His invention was of a device involving a combination of mechanical parts, which in operation produced, by a peculiar method, the rocking of a shaft, with an adjustment for limiting the amount of the rockIng movement. The meChanical movement was intended by him to provide 1 as he says in his specification, for a ing movement into "a variable oscillating one ; 8econd, to insure a determined amount of movement in a variable oscillating movement; third, or variable strain or tension on the opposite strokes to produce an of an oscillating Or reciprocating movement; fourth, to furnish a motive power tQ change a valve or similar device on engines of aU· classes,-electrical, steam, and hydraulic; fifth, to furnish a motive power whereby a spring or similar device is acted upon by the engine or machine with its full power, until the power stored up is sufficientto instantly change the valve without further drawing upon the power of the engine." According to his specification, his improvements consist:
"Fi1'st. In the combination, with a shaft provided with a slotted device, of a movable device fitted in said slot. and a spring force upon said movable device. Second. In the combination, with l\shaft prOVided with a to be moved in the slot, and a spring Which slotted arm, of a device operates·upon said movable device. Third. In the combination, with a rock. shaft proVided With a slotted arm, of a movable device fitted in the slot, and
PERKINS V. EATON.
673
a spring which draws upon said movable device. Fourth. In the combination, with a shaft provided with a slotted arm, of a roller fitted in the slot, and a spring connected to said roller. Fifth. In the combination, with a rock-shaft provided with Ii slotted arm and a grooved roller fitted in the slot, of a spring connected to the bearings of said roller. Sixth. In the combination, with i\ rock-shaft provided with a slotted arm and a grooved roller fitted in the slot, of a bifurcated bearing, in which the roller is journaled. and a spring connected to said bearing. Seventh. In the combination, with a rock-shaft provided with a slotted arm and a movable device fitted in the slot, of a spring connected to said movable device, and adjusting mechanism which limits the rocking movement of the shaft. Eighth. In the combination, with a rockshaft provided with a slotted arm and a movable device fitted in the slot, of a spring connootedto said device, and set-screws adapted to engage with an arm of the shaft to limit the rocking movemeut of the latter. Ninth. In the combination. with a rock-shaft prOVided with a slotted arm and a movable device fitted to the slot, of a spring connected· to said movable device, and handle to actuate the latter. Tenth. In the combination, with a rock-shaft provided with a slotted arm and a movable device fitted in the slot. of a spri ng connected to said movable device, and a handle-arm secured to the rock-shaft." The claims under his letters are in substantially the same language as in the description of his improvements just stated; indeed, are almost literally the same, and are numbered accordingly. The inVEintion is claimed to be applicable to mechanism for operating parts in a shingle-machine, a steam-engine, pump, and many other machines. It is alleged that the defendants, Eaton, Lyon & Co., are engaged ill selling the Remington type-writer, in which, as the complainant avers, is embodied a device for producing mechanical movement which ·is substantially his invention. Several defenses are set up, the principal of which are-First, that the complainant was not the original inventor; and, second, that the defendants have not infringed. I do not think that the evidence sustains the objection that this pat-. entee had been anticipated in his invention. In my opinion, there is little similarity in the mechanism and devices illustrated by the machines and contrivances shown by the defendants' exhibits and proofs to the devices covered by the patent in question. But, in my opinion, the claim of the complainant that the device employed in the type-writer is an infringement upon his patent is not made out. It is true that there is much of 'similar mechanism in it. There is a rock-shaft, and its rocking movement is limited by a similar arm and stops to those of complainant's. There is also a similar loop. This in the type-writer is attached, not at the end of the shaft, but between the bearings thereof; and it is attached so that in its length it extends transversely across the lower side of the shaft, the latter being in the middle of the upper side of the loop. A spiral spring extends from a fixed position below to the loop, and attaches to it by a hook. There are notches on the upper side of the lower portion of the loop at each end for the hook to rest in, and to prevent its slipping, and for the same purpose the lower portion of the loop arches towards the middle from either end. And, if the hook were to take the place of the movable device in the loop v .40F.no.12-43
FEDERAL REPORTER t
vol. 4U.
in ihe complainantts specification, the two constru9tions, at rest, would look strikingly similar. But in operation they do not,perform the same function, nor do they perform their functions in the same way. In the type-writer there is atone end ofthekey-boarda"lower-ease" key, and at .the other an "11pper-cItSG" keYt each of which is attached to the forw/lId end of a lever. The levers are each pivoted, and at their further ends are each attached to a perpendic\llar rod. . These rods are attached to the ends of arms on the opposite sides of the rock-shaft. By pressing the: keys alternately, the shaft is rocked, and by other attachments to the shaft the platen is held over the type t either capital or smaller, (upper or lower case,) as the operator desires. If the hook on the end of spring is at the end of the loop or slottedal,'m, so as to hold the shaft rocked to the right direction for printing the lower case, the operator, by pressing the upper-case key, (against the power ofthe spring,) <lah rock the shaft. the other way,and hold it so while he prints the upper-case type. And this is the method of use while printing the uppercase, if that is only wanted temporarily. But, if a permanent change is d.esiryd t the hook on the of the spring is transferred, usually by the thum,1;l and. finger, but never autolllatiQally, to the pther end of the slotted arm. ' This relieves the. opeliator from longer pressing thllt key, and the machine. is now permanently printing the new types. Precisely the. same method is employed to change to the other Case of type, either temporarily .or permanently, as desired. Thus it wilJbe seen that a very important part of the plaintiff's device, namely, a roller or itsequiv:alent, mqving freely through the slotted arm, with a varying tension during its movement, (though equal in reciprocation,) and accelerating tpe latter. part of the movement, is entirely wanting. (1) There is no free moveplent, but the reverse; (2) there is no tension operating on the slotted arm while them,ovement is taking plllQel (3) there is no automatic Itl-ovement of the movable device while tbe shaft rocked. 'l'his peculiarly. distinguishes it frOm the plaintitl",sinvention,Ql;i illustrated by bis land 2, but perhaps his Figs. 8 and 4, in which the movab,lE;l device is pulled' does or pushed through the slot in the arm by a rod attached to the device, ap.d moved by hand Qr power. ,In the tYP&:,w,rit!'lf the spring cretensio:p. simply, aqhe one end .of the slotted arm or ates an the. other, the, being rocked b,y other means.,. .The hand of the operator, and on end of the spring which the han.d lifts and moves through the slotted arm, are, not an equivalent Jar the plllintiff's device moYing :through the arm automatically, or freely, but under tension which modifies that movement, and gives it its peculiar effect. The .complamll.nt'spatent isJor of elements, and, in order tp the trespassing machine must. embody all the elements· m,a,terialto the complainant's device. The elements need not be ide:p.tical, Qut they must beeq,\livalent in their nature. Refirwry v. Matthieasen" f,a iFish. Pat. Cas. 602 i Walk:. Pat. §3',\:9 i Curt. Pat. § 308; Gagev. Herri:(l{J, 107 U. S. 640, Sup. Ct.. Rep. 819; Forncrook v. Root, 1271 U. S. 17,6,8 Sup. Ct. Rep. 1247., And the accused machine must
'JOHNSON'V. AY;l>'RUJH.
perform'substarttially'the'same functionjandin the same way, and with like results, cit there is no infringement. See the above authorities.: to· the .facts in the present citse,it follows Applying these the bill ituist be
3'OHNSON et 01.
tI. ALDRICH
et ale
(CfrcuU Court, N.D. Nuw Yqrk. December
28, ". ,
PATBNTS FOR INVBNTIONS-INPRINGBllBNT-PRBLIHINARY INllfflC'l'ION., .
A preliminaty injunction to restrain the manufacture of an alleged infrtngement of a patent will not be granted when the paMnt has never been adjudicated, and there is inadequate proof of public acquiescence, and the infringement is denied; and defendants have been engaged in the manufacture for a long time without opposition, and have an extensive business, while the complainants have owned the patent for only three months, and defendants are not shown to be pecuniarily irresponsible; and the effect of an agreement not to manufacture the pateuted article, signed by one of defenl'4mts, is !!'t least as to the other defendants. y"
In Equity. 'Motion for.a preliminary injunction. .,. The complainants are the owners ofletters patent No. 226,668, granted to Nicholas A. Menaar) April 20, 1880, for an improvement in tea-kettles. Thepatent was assigned to the complaihant in the autumn of the present year. The action is founded upon the patent, and also upon an agreement made by the defendant, Schuyler Aldrich, in the spring of 1884, in which is the following covenant: "I will not at any time hereafter within the life of the letters patent, without the license of the owners of the'said letters patent, manufacture and tea-kettles which are covered and claimed in the claims of the said letters ,patent." The complainant$insist that this agreement estops the defendants from contesting the validity of the patent. The kettle now complained of as an infringement, which the defendants have made since 1886, is oia somewhat different construction from the one manufactured by the defendant Schuyler Aldrich, prior to the agreement. The defendants contend that the present construction does not infringe. The patentee, Mena:ar, was employed by the defendants during the time these kettles were being manufactured. in infringing upon The bill alleges that the defendants have been the patent since the spring of 1884. The defenses, as foreshadowed ,in the affidavits, are that the patent is anticipated and' void for want of novelty and inventioll; that the defendants do not infringe; that the defendant Schuyler Aldrich was induced to enter into the agreement referred to by fraudulent representations; and, finally) that the court has no jurisdiction of the action, which is, in reality, a suit upon the covenant) and not upon the patent. James A. Allen and George Wing, for complainants. Antonio Knauth, for defendants. COXE, J., (after stating the facts as above.) An injunction should not il!sue at this stage of the litigation) for the following reasons: Firat. The