52 F. 147 -

OtJTCHEON 'V. HERRICK.

147

earth, orUll equivalents, hereInafter named. The clay is diluted in water. and then mixed with the porcelain earth or Its equivalents. The porcelain earth is ground or l"educed to fine powder in any suitable mill, after having been previously baked in any suitable kiln. The proportions are from twenty to forty per cent. of clay to sixty to eighty per cent. of porcelain earth or its equivalents. They may, however, vary, more or less. I wish it, however, to be understood that I do not limit myself to the above-named substances, for the same. or very much the same, result may be attained by using, for instance, silex, magnesia, or its equivalent, instead of porcelain earth. .. IIC '" A filtering body produced from the above compound is homogeneous, and fulfils the required conditions for filtering. I du not wish to be understood as laying claim. broadly, to the materials hereinabove mentioned as a filtering compound. but only when they are treated as above specified." The proof Is, I think, quite convincing that defendants use a filtering compound made by combining kaolin clay or porcelain earth and finelyground silex in about the proportions of 30 to 45 per cent. of kaolin and the balance ground silex. This, I think, is an infringement of the patent, as the patentee expressly says: "I do not limit myself to the above-named substances, [pipe-clay and porcelain earth,] for tbesame, or very much the same, result may be attained by using, for instance, silex, magnesia, or its equivalent, instead of porcelain earth." The utility of this compound for filtering purposes is, I think, abundantly established by the proof, as it now stands, for the purposes of this motion. The infringement being established, as I think it is by the proof, an injunction will be ordered, as prayed. A bond would be required as a condition of granting this injunction" but for the proof in the record showing that the defendants in this suit have been guilty of bad faith towards the complainants, to such an extent that they are not equitably t as I think, entitled to the protection of the bond from complainants.

CUTCHlllON

et al.

fl. HERRICK

et aZ.

(Circuit Court, D. Mas8achusetts. September 9, 1892.)
No. 2,889.

1. PATENTS 1'6R INVENTIONS-NOVELTY-PRIOR ART-BEATING-OUT MACHINES. Letters patent No. 384,893. issued June 19, 1899, to the assignees of James C.

Cutcheon, covers, in claim 1, "a machine for beating out the soles of boots and shoes, provided with two jacks, two molds, and means sUbstantially as described, havin« provision for automatically moving one jack in one direction, while the other is being moved in the opposite direction, whereby the sole of the shoe upon one jack will be under llressure, while the oth,er jack will be in a convenient position for: the removal of the shoe therefrom." Held, on areview of the prior state of the art, that the ,essence of the invention is that it was the first machine in which both the'motions of compressing the last and'of clearing the last from the die were performed automatically, Qnd the claim is valid. The 'fact that defendants in' their machine use lasts instead of jacks does not prevent infringement, since:the two are well-known equivalents. ,
,

2.

148

FEDERAL REPORTER,

vol. 52.

'

B. SJ.MIIl-'-ANTICIPATION-PBIOR:USE.

,Wpe thil'd claim of the patentl"relating\to d,etails of construction, seems to havebllen anticipatea "by the old style Knox molder, but, in the absence of proof that the Knox maohinewBs used prior to'the date of the patent, this claim must be held valid, and infringement declared.

In Equity. Bill by James C. Cutcheon and others against George W. Herrick and others for infringement of patent. Decree for complainants. Alexander P. Browne and George W. Moulton. for complainants. Oharle8 A., Taber, for:defendants. COLT, Circuit Judge. The present suit is for the infringement of letters patent No. 384,893, issued Jun.e 19, 1888, to the complainants, as assignees of James C. Gutcheon. The patent is for an improvement in machilfes. These machines are used to give the sole of a shoe the requisite cU,l've or contour. Originally this was done by the cobblerhplding the shot'l between his knees, and beating the sole with a flat-faced hammer. In the operation of these machines three ,;-;-the motion of pressure, the motion of clearance, tne)notion of removal. The first of this character was patent of Novemher 26, 1867,. This aPr' paratus consisted of a hand-operated screw press, in which the sole of the shoe WflS forced against a mold or base plate having the proper curvature.togive the sole t:lw desired shape. This was followed by the John" son patent of ,March lO,l,868. In this device the shoe was supported upon an iron last, mounted upon a. bar moving vertically between the guide to,llpd from a mold. ,The last was connected with a toggle 'lever, ll,nd:a foot lever, and the operator. by placing his foot upon the foot lever, .forced uptp.e last against the mold. The next Johnson patent is dated July 22, 1873, in which the machine was operated by a power driving shaft, so that when the operator had pressed the treadle dow.n part way the power of the shaft would force the sole against the mold. In his patent of June 30, 1874, the same inventor substitutes a jack for the iron last or shoe carrier. This jack was adapted to carry several sizes of wooden lasts, whereas, in the case of the iron last, a separate last must be provided for each size of shoe. The next improvement of Johnson Was patented Ji.11y 20, 1880. In place of a single pressing mechanism, this machine contains a number of $uch mechanisms arranged side by side, and for ,this reason it became known in the art as a "gang" machine. The next 'patent referred to in the record was granted to' Maurlce V. Bresnahan, June 10, 1884. This was also a "gang" machine. In this device the motions are horizontal, instead of vertical, as iJ;1 previous machines. It is unnecessary to enter into the specific improvements embraced in this machine. prior art sQows that, previous to The result of this briefreview of the Cutcheon patent, the pperation of clearing the last from the die had never been done automatically. Xbeessence of the Cutcheon invention is that it was the first machine in which both the motions of compressing the and of clearing the last from the die were performed auto, matically. The first claim of the patent is as follows:

SMITH & DAVIS MANUF'G CO. V. MELLON ·

..A machine for beating out the soles of boots and shoes, provided with two jacks, two molds, and means, substantially as describf'd, having provision for automatically moving one jack in one direction while the other is being moved in the opposite direction, whereby the sale of the shoe upon one jack will be under pressure, while the other jack will be in aeonvenient position for the removal of the shoe therefrom." There is no doubt that the defendants' machine contains all the mechanical elements embraced in the above claim. The fact that the defendants use lasts instend of jacks in their machines is unimportant, because they are well-known equivalents. Upon the question of alleged prior use of the Cutcheon invention several years before the date of the patent, in a single machine constructed mainly in accordance with the Bresnahan patent of June 10, 1884, I am satisfied that this defense has not been made out upon the present record. The defendants are also charged with infringing the third claim of the patent in suit, which relates to certain details of construction. This claim seems to have been anticipated by the old Knox molder, but the defendants have not proved the use of the old Knox machine prior to the date of the Cutcheon patent. Upon the evidence, therefore, I must hold that this claim is also iI1fringed. Decree for complainants.

SMITH

&

DAVIS MANUF'G

Co.

t1. MEU.oN.

(Dwcuft Dourt, E. D. Missouri, E. D.

PATENTS FOR INVENTIONS-PUBLIC USE-BED BOTTOMS.

June 1, 1892.)

Letters patent No. 269,242, issued December 19,1882, to J. G. Smith for an im· provement in bed bottoms, are void because bed bottoms having all the material elements of the invention were in public use and on sale for more than two years prior to the application.

In Equity. Bill by the Smith & Davis Manufacturing Company against Mellon for infringement of letters patent No. 269,242, issued December 19, 1882, to John G. Smith for an improvement in bed bottoms. Bill dismissed. William M. Eccles, for complainant. George H. Knight, for defendant.
THAYER, District Judge, (orally.) In view of the testimony the court is of the opinion that the invention covered by letters patent No. 269,242 was in public use and on sale for more than two years prior to the date of the application for the patent, and that the patent is for that rea,son void. Smith Co. v. Sprague, 123 U. S. 249, 8 Sup. Ct. Rep. 122; ftgbert v. Lippmann, 104 U. S. 333; Manningv. Glue Co., 108 U. S. 462. 2 Sup. Ct. Rep. 860; Andrew8 v. Hovey, 123 U. S. 267,8 Sup. Ct. Rep. 101. It hardly admits of a doubt that complainant made, and sold wire ,bedbottoms which embodied all of the material featQres or elements oOhe