51 F. 220 -

220

FEDERAL REPORTER,

vol. 51.

whether ornot"theinvention isoneofa. "primary character," to which the doctrine of equivalents applies to its full extent, or whether or not the inventor was a" mere improver" upon something "capable of accbttlplishingthe same general result;" in which latter case, the court said,uhis claims would properly receive a narrower interpretation." - Again, in McClain v. Ortmayer, supra, the supreme opurt, on page 425,' 141 U. S., and page 78,12 Sup. Ct. Rep., laid down the lowing rule: ,!i"The principle imnounced by 'this court in Vance v. Oampbell, 1 Black. 427,. that, where a patentee declares upon a combination of elements which he the novelty of hisinyention. he cannot. in his proofs, abandon and lOaint,ain his claim to the rest. is applicable t(),a caae of this kind.' wher.e a patentee has claimed more than is necessary 1ot1\e successful working'bf his device.» .:thisdoes:notstricUy govern the case at bar; but it illustrates clearly tpatit the complainant can abandonl'match, B,'" ass distinct element, and claim a continuous fuse as the equivalent of his fuse anp. match, merely because he has made a subdivision which it niay prove was not "necessary to the successful working of his device." in this opiniop I have not only pointed out the negative nature of t.he cQmplainant's speci.fications, ,but have also referred to the lack in the record of any proof of the state of the art prior to the invention in question,yet. I do not mean to be understood as now holding that any s1-1ch proof,would have enabled me to reach a different conclusion. In view of what appears, or rather fails to appear, on the face of the patent, I have not considered whether any line of proofs would relieve the complainant,and I have referred to the ,lliLck of them merely because it strengthens the case as presented to me. Let respondents draw a decree 01 dismIssal, with costs, and submit it to the court, with proof that it on the complainant.

'D. KEYSTONE

WMON Co. 1

(CiII'cuit Ooun, E. D. PcnnBYlvanla. April 29, 1892.)
PATlIlNTS

Letters patent No. 211,052, for a dumping-wagon, are to be construed as tor a. dumping-wagon Wherein the body is ,raised front and rear simultaneously, by folding arms connected with the body and runnillg gear, and suitable connections tween the forward ends of the armll and wagon body, whereby, as the latter 1S raised, it moves rearwardly also with a single power device operating upon one or more of its arms, whereby a single continuous operation will elevate both ends of the body,atid move it rearwards, and embrace patentable novelty.

OF CU,LM-NOVlIlLTY.

Bill in" Equity by Leonhard Rodenhauaen to restrain the Keystone Wagon Company from infringing letters patent No. 211,052, for Decre.e f(ir complainant.
1 Repotted

by Mark wiiks Collet, Esq., of the Philadelphia bar.

BODENHAUSEN t'. KEYSTONE WAGON CO.

221

Jercrrn:t Carty and Emeat Hqward Hunter, for complainant.
E. OlintcYn Rhodes, for respondent.

BUTLER, Distriqt Judge. The suit is for infringement of letters pat.ent No. 211,052, granted toL. Rodenhausen for "improvement in dumping-wagons." The answer attacks the patent-for want of patentable novelty-and also denies infringement. The specifications state that the invention consists "in connecting the body of the wagon to the reaches, truck, or running gear thereof by means of folding or radius arms, to either of which power may be applied in order to raise the body-the elevation of the body being simultaneous front and rear-by the power exerted on one of the arms, which are preferably in pairs," and describes the means whereby this is accomplished, more specifically lind particularly by the drawings filed, and the following reference to them: : "A represents the body of the wagon, and B the running gear. 0 Of represents the arms, which are pivoted to the body A and reaches a or axles b; and to either, of said arms is connected mechanism for causing them to move from a horizontal to a vertical position. In the present case I employ a cord or chain,d. which is wo.und on a proper drum and connected to one limb of C', which is triangular in form for purposes of strength; but the rear other mechanical means may be employed-such, for instance. as a pinion secured to the axis of one of the arms, and a rack fitted to the sill and reaching meshing with !laid pinion, or a screw connected to an arm and a suitablE' portion of the body or running gear. When the body is in its normal position it rests on the sUls or truck. the arms occupying horizontal or somewhat horizontalpositions, as shown in ligure 1." There islfut one claim, which reads as follows: "Folding arms connectlld to the body and running. gear. substantially as the front and rear of the ,body will be simultaneously raised as stated." The concluding words-referring to certain functions of the invention -neither limit nor otherwise affect the scope of the claim, and may be treated as surplusage. Both the claim and specifications are unskiUfully drawn.. There is, however, no serious difficulty in so construing them as bcover the invention; and this appears so distinctly from the. drawings and specifications as to be unmistakable. It is an improved dumping-wagon, wherein the body is raised front and rear simultaneously, by folding arms connected with the body and running gear, and suitable connections between the forward end of the folding arms and wagon body, whereby, as the latter is raised, it moves rearwardly also, and insures proper inclination for discharging its load by gravity; with a single power device operating upon one or more of the arms, whereby one continuous operation of the same will elevate both ends of the body and move it rearward. Does this invention show patentable novelty? The former state of the art is sowell summarized by the complainant's expert, Mr. Hunter. that we adopt his statement:

222
The old well qOllsislledQf8\lP4y, ontwowheelsand pivoted the so as to tilt .and its thEl !p;oq.nd. The next step In the Improvement In the dumplU/{-wagon IS that shown in the Iske Ratent, defendant's Expib.it J:',' in Whicb we j:Javethe old dumpingftont and'suppotted upon·'Q'cframe,llnd second pair of Aiheelslnmking ,a;toul',;Wheeled cart.'. to the greate\! would of deviceswer,e i&lTal'lgedAlt, ihe forward raisiflg ,mtt of The extreme rear end of the lJw1y,w,as IOWl'lred,jWd,the coal, which was diScharged by gravity: was gUidedtdtbe plilceof:teceplionby achute. We next come to the mOdllication of this disclosed in the'patent of BullQck &:; of 1l:l76,an/f imarked defendant's · Exhibit H.' In this case we have t,hesltroe'generalfeatll1'esof the Iskedumping-wagon, but with this difference: Tl:teiwag,Qil body is tomove rell,fWardly upon the running bfling tUtt'd, and instead of being to the rear .end. and at a point axle, the tilting is to take place tp thl;l rel'r of the rear axle ahd at orabout the centel'of g'ravity of the wagon body.' The rear end of the budy, however, in the Bullock & device, still descended to a lQwer )elevatiun than i the running gear rear'hes, but, asa greater length of thtlWa'got1body was 'btought to the rear of the pivoteollnection, the said w8g<1ln"body was firllt'l'alsed· at both ends simultaneously,and to an equal exteht,'before the tilting operation is permitted. When the tilting oppration Ultimately takes pIaoej' the discharge tllid of the wagon body in the Bullock & Hanigan patent is on $iJbstantiany the same level as the discharge end of the I8kewa'l!on, neither of which havethl!ir discharge ends raised as high as the n'O!'ll:il:llelevation of tlillt end when the W8l/<)Il budy was resting upon the' runninggear. It is to ,be observed that, asiUe from the automatic arrangement fot dU'rDliing and l't'tlitnlng the wagon body to the running gear in the Bullack &.Hanigan·patel\1!.we have thebottoln of thewagO'n' body somewhat inclined to, in a measure, reduce the necessary obliqnity required in the dumping operation. We next come development of art as disin of 187l:l, l\nd marked defendant's G!' in wtllcbwehave the)neJined wagon body of Bullock HaDlgan, combmed with an elevating derlce such assllown lit the forward end of the lske wagon, at both the front lind rear ends, so that the wagun body may be elevated, first at eng.,!'Ild at the other, by two. tJepal'a te powel'deoices operated sllccessively or"tdi1'ferent In the,construction showni,nthis, Bailey 1878 pateilt;the rear en.4 tll'st in the curvpd and then the forwardelld was elevatM bya second power device to increase the obliquity of the floor ofth'e wagon body to cause the coal to be discharged by gravity. While the Bailey wagon of overcame in Ii me'.lsure the defects of the wagons of the Bulluck & Hanigan patents and Iske }!latent, In that it elevated the entire body and coal to a higher elevatioU at all points than its normal positipQ. rl;isting rU:lllling W3ar, and at the imparting to the 1100r of' the wagqn body ,the necessary inclination so that the co1,1 may be discllargedto a '!Jistance in the chtite, yet in accomplishing this improveover the BUllock'&; Hanigan patent construction the said Bailey device lost the advantage, which consisted In moving the wllgon body'rearwardly, and also in that it required two devices instead of a single one to manipulate the body," ,,', In this state of the art, Mr. Rodenhausen produced' the itnproved dumping-wagon abovedescribed.j, That it was new and requited the exerciseof inventiqn:iaa patentable we cannot doubt. It possessed great advantages over all wagons previously constructed for the same purpose, and for more than a dozen years the patentee manufac-

A;aBO'r!'
I

co.

t1.BONli.

223'

tured' and sold it extensively, without his right to, the monopoly being questioned. The respondent's subsequent act, in taking the Klees patent-in part, at least,' for substantially the same thing.-;;..is a virtulil cOllcessionQf this right." " . Does .the respondent'infringe? This point·.as weH as the one just considered, was earnestly and ably contested. by the respondent's counsel; but here again our judgment is against him. A minute analysis and' cOl1lparison of the two wagons is unnecessary. ' With the models and ,drawings before ua, and all the aid, afforded, by the respondent'sexpert,. we are not able to find any substantial difference· between the bed is raised, front and rear, and shifted backthem. .wards, at the, proper angle, simultaneously, by one operation of devices and cO,D).binations, so similar in principle and effect ast() be substantially undistingllishable. , It is just possible the respondent has in some reo spects hnpruved on the complainant's wagon.lfhe has, however, this his infringement·. A decree must De entered accordingly.

ABBOTT MACHiNE

Co.' ii.' BONN et

May 2,

,

(O£rcu:&t oourt,

J'OR

The fourth' and fifth olaims. of letters patent No.4Ql,871, issued Aprll 23, 18891 to Edwin 0. Abbott, for a device for cutting'figures or letters inbalik cheeks, whIch the combination pf a stationary feed roll, a'rotatable shaft, fixed at one end and movable at the other, !Lnd a levtlr to move the shaft, are void for want of inventiolJi since the only dtft'erence between that snd prior machines is that the lower rollllr, instead of the upper one, is

PROTEOTOR+rP>A.TEN'l'ABLIIl!NVlllN'l'IOW.

Bill by the Abbott Machine Company against Robert H. Bonn and otlwrs for and accounting. Charle3 H. Roberta, for complainant. JfcCWllan, OwrTllmina &: Moulton, for defendants·
..:'

Judge. This is a bill in equity, charging defend. ant with4heinfringement of patent No. 401,871, granted April 23, 1889, to Edwin O. Abbott, for a "check protector." The patent in question shows a device, for cutting or punching letters, figures, or signs into paper, and its main use is for so cutting or perforating into bank checks or drafts the :figures denoting the amount for which the check or draft is drawn, thereby giving an additional security against an alteration of the check. Infringement is charged· of the fourth and fifth claims of the patent, which cover the feeding mechanism of the machine. These claims are; "(4) In a feeding device fora check protector, tbe combinRtion of a s'tationaty feed I'ollandrotatable sbaft,a xed at one end and movable'at the opposite end. a feee:} mounted on the movable end.o! tbeshait, and a lever