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Allison; No. 26,606, to P. Monaghan; No. 45,721, to H. Jordan; No. 61,649, to A. H. Allison; No. 65,573, to J. Hollingsworth; No. 70,643, to H. K. Stoner; No. 72,456, to Philip Coonrod; No. 73,972, to Martin Heyden; No. 82,938, to B. F. and J. V. Guy; No. 96,379, to W. S. Baker; No. 108,276, to L. Luppen; No. 108,945, to D. Č. Stover; No. 127,878, to William Haslup; No. 128,701, to W. P. Brown; No. 134,540, to G. A. Grove; No. 110,513, to L. Litchfield and H. S. Corbin; No. 154,666, to M. L. Gorham; No. 164,180, to A. J. Judson; and British letters patent No. 1,582, dated July 5, 1856, to Thomas Smith.
The couplings used by the appellees were made under the patents of Moore, No. 217,811, and Bradley, No. 270,629, which the appellees, respectively, own, and are illustrated by the following drawings:
By the first decision below, reported in 21 Fed. 709, the patent was upheld; but the court-having, of its own motion, granted a rehearing--declared its final conclusion that the claim in question was not, as contended by the complainant, for a combination, but for the device, "a pipe box with a projection adapted to co-operate with a spring."
The following extracts from the brief of counsel show the chief points of the argument made here in the appellant's behalf:
"Omitting, for the present, the elements of 'weight or the draft,' the devices which are specifically named in the claim are, (1) the pipe box; (2) a projection; (3) a spring; (4) the rear cultivators or plows. Implying, as we must, a main frame, which is an element in all such machines, it is perfectly plain that, adding this, we have all the elements required to construct a working combination, and that all of them are absolutely essential. It is also true that, by the phraseology of the claim, these elements are all united to.gether into a working combination. As to that there can be no dispute. Hence, nothing is wanting to make a technical combination of it, except the word 'combination' itself, or the word 'combined,' or the word 'arranged.' If any of these three words were in the claim, there would be no room for dispute. The word 'adapted' is the one which is used. It would seem to require no great stretch of language to construe this word 'adapted' as meaning arranged' or 'combined.' That, obviously, is its force, and obviously was the intent of the party who used it. How adapted? The adaptation is made by putting the things together in the way which is shown and described in the patent, and until that is done there is no adaptation made, within the meaning of the patent law. A mechanical device' is 'adapted to do its work by being actually put into co-operative relationship with such
other devices as will enable it to perform its function. This is the highest and most perfect adaptation known to the law, and when it is done a combination is made. Hence, it is submitted that the devices being named which make the combination, their co-operative relationship being described ‘and set forth fully and specifically, and a co-operative relationship in the machine being clearly called for by the word 'adapted,' it clearly follows that the claim in question should be construed as a combination claim; the more so, because, by such construction, the invention, as actually made, will receive the proper protection.
"Let us turn now to the question of function. I have said that, as å matter of fact, the use of a weight in the Brown combination in lieu of a spring (assuming it to be usable at all) would introduce into the Brown cultivator à function previously unknown in the art. This function may be thus stated: Making a weight or spring coact or co-operate with a hand lever or handle in the manually directed movements of the cultivator shovel in such a way that the spring or weight should always be an auxiliary device, and should never be an opposing device. That thing or function was absolutely new with Mr. Brown. The co-operation of those two elements--the spring or weight, on the one hand (or include, if you please, the draft of the team), coacting with the hand lever or handle through which the cultivator shovel was manually guided in doing its work, and so as always to be a help, and never a hindrance-was unknown in the art until Mr. Brown did it. This is the final and material fact in the case; and, this fact being true, it is submitted that the validity of the Brown patent cannot be called in question. A new combination which involves a new function is always patentable.
"Weights vs. Springs. In machines which travel about from place to place, a weight is not, as a general rule, the mechanical equivalent of a spring. While Mr. Brown, when he applied for his patent, undoubtedly thought that, for the purposes of the invention in question, a weight was practically, as well as theoretically, the equivalent of a spring, the simple fact is that, in so thinking and so saying, he was mistaken. It was an error on his part,nothing more and nothing less.-but an error which ought not to prove fatal to his patent, in view of the fact, first, that the actual invention which he made was incontestably novel, and has proven to be of great value, and in view of the still other fact that the defendants have undoubtedly used it. In many kinds of stationary machinery, weights can obviously be substituted for springs without invention, and with beneficially the same results. Where they can be so substituted, they are equivalents, and otherwise not. In most kinds of moyable or portable machinery, they are not equivalents. Thus, in watches they are not equivalents, though they may be in stationary clocks. they are not equivalents in eye glasses, and a weight would be a sorry equiv. alent for a spring in a carriage or in a bed. Whether they are equivalents depends upon the environments. It is also submitted that the whole question of weights as mechanical equivalents was practically disposed of in the first decision in the Deere Case, and on the principle there enunciated and applied, 'Utile per inutile non vitiatur;' and to this the court very properly added: 'Whatever part of this claim may be deemed to have reference to the projection, M', it seems to me, is of no moment, for the purposes of this case at least, for it is not claimed that defendants use this part of this claim, or anything equivalent to it.' Manufacturing Co. v. Deere, 21 Fed. 709, 711. So of the weight. Neither party uses it, or ever has. For the purposes of this case, all reference to it may properly be disregarded, or it may be rejected as surplusage."
"In the invention now in question, the place of hitch--that is, the place where the connection was made through which the spring acted on the cultivator beam-was changed from the cultivator beam itself, and was shifted forward to a radial arm or projection, which was made for the purpose on the pipe box. It will be remembered that the forward end of the beam is pivoted to a pipe box on the axle by a vertical joint. This vertical joint permits sidewise motion, and through the pipe box itself, turning on the axle, we get vertical motion. The problem was to hitch the spring 'so that it would aid the operator in the vertical movement of the beam, without interfering with the sidewise movement. In order to do this, Brown made on
his pipe box an arm, M, which extended radially out from the pipe box. To this he hitched the free end of the spring, which in his patent is marked 'N' the other end of the spring being fixedly secured to the main frame. Hence, the Brown invention, stated in a general way, consists in hitching the spring to an arm or projection which extends radially out from the pipe box in any desired direction. * * * The invention, properly construed, takes in any place of hitch at or forward of the vertical pivot bólt by which the cultivator beam has sidewise motion. This is the only part of the invention which is now properly in controversy."
George H. Christy, for appellant.
Bond, Adams, Pickard & Jackson (John R. Bennett, of counsel), for appellees.
Before WOODS and JENKINS, Circuit Judges, and BAKER, District Judge.
WOODS, Circuit Judge (after stating the facts). We quite agree with the court below that the first claim of the patent in suit is not for a combination of the pipe box described with other parts of a cultivator named in the claim or specification, but for the pipe box itself, as a single device, designed and adapted for use in the several ways specified. The contrary contention requires that the word "adapted," as used in the claim, be given a strained and unwarranted significance. It is not even approximately synonymous with "combined;" and a substitution of the latter word would be inadmissible, unless the words "to co-operate" were omitted. If the word "arranged" were substituted, it would have the same meaning as "adapted,” unless, again, "to co-operate” were omitted. We think it clear that the first claim of the patent is for “the pipe box with a projection,” which projection may be adapted to co-operate with a spring, or with a weight or with the draft, for the purpose of rocking the box either against or with the weight of the plows,--one or both; and while, by the claim, the box has one projection, two illustrations, M and M', are given of projections which may be employed, and it is suggested in the specification that instead of the flange, M', a counterweight may be em. ployed, or a sleeve or pulley may be arranged on the pipe box with à chain to produce the same effect. It is easy to see, too, that weights, instead of the spring, might be connected with the arm, M, so as to rock the box in either direction. Indeed, that arm might be lengthened, its upper end enlarged so as to constitute a weight, and a joint introduced near the box, whereby the weight could be turned forward or backward to move the box one way or the other, as desired. The specification of the patent was drawn, of course, to describe the elements and functions of the elements of all of the claims; and, when they are considered together, it is clear enough that the first claim was designed to be broadest, covering simply the pipe box with a projection, which might be in any of the forms illustrated or suggested; the third to be less broad, covering the same pipe box, except that it should have "longitudinal ribs, combined with the stirrup, G, having corresponding grooves," etc.; and the second to be yet more narrow, covering "the combination, with the crank-axle and the gangs or plows, of the pipe box having
the arm, M, the spring, N, attached to the main frame, the head, I, and the stirrup, G, or its equivalent,” etc. The interpretation which we are asked to put upon the first claim would make it essentially the same as the second. The proposition of the brief is "that, for the purpose of the present case, the claim is to be construed under the law as a claim for a combination in a corn cultivator of a pipe box, a projection thereon, a spring hitched to such projection at its free end, and one or more 'rear cultivators or plows' also pivoted to the pipe box; these being so connected and combined that the spring, acting through such projection, shall co-operate with the operator in the manipulation of the beams by hand.” It is only under the emergencies and "for the purpose of the present case” that such a combination could be read into the claim; but, if so interpreted, we should still be compelled to regard the claim as void of invention, or at most subject to a construction which would be too narrow to support the charge of infringement. It is not contented that the supposed combination contains any new element, or is made up of parts which had not been employed together in earlier cultivators to perform the same or similar individual functions. A new combined result is insisted upon, and one novel feature of construction is asserted, which, it is said, consists simply in changing "the place of hitch” for the spring from the plow beam, where it had theretofore been, to a projection made for the purpose on the pipe box; thereby accomplishing the alleged new result of avoiding the tendency of the spring, when attached in the old way, to resist lateral movements of the plow. “The problem,” we are told, “was to hitch the spring so that it would aid the operator in the vertical movement of the beam without interfering with the sidewise movement;" and it is asserted that Brown's invention consisted in the discovery that the resistance to sidewise movements could be avoided by hitching the spring in front of the vertical bolt upon which the plow beam turns horizontally. But in the cultivators made by the appellees the spring was hitched to an extension, either of the bolt itself, or of the upper arm of the stirrup through which the bolt passed; and it became necessary, in order to maintain a semblance of infringement, to enlarge still further the scope of the claim. Accordingly, it is insisted that, properly construed, the invention includes any place of hitching at or forward of the vertical pivot bott. But this proposition, manifestly, is not completely applicable when a weight is used in lieu of a spring; and hence it became important, if not imperative, to say, as it has been said, that while Brown thought that for the purposes of the invention "a weight was practically, as well as theoretically, the equivalent of a spring," he was mistaken in that particular. But that this assertion was unwarranted is shown by the suggestion already made, that, instead of the spring, a weight might be attached to the arm, M, without change in its construction, so as to perform the exact function of the spring, or, to accomplish the same effect, the arm itself might be lengthened, enlarged at its outer end to produce the requisite weight, and jointed near the pipe box. This last
construction would be substantially identical with the weight and lever shown in the English patent to Smith, No. 1,582, for improve. ment in horse rakes. Brown therefore made no mechanical mis. take in treating a weight, for his purpose, as an equivalent for a spring; and, if there was mistake at all, it was because thereby the fact of anticipation by the English patent was made more evident. The attempt to distinguish between the pipe box of this patent, when moved by a lever and weight, and the pipe box of the Smith patent, with its lever and weight, because one is used in a cultivator, and the other in a horse rake, is necessarily unsuccessful. A more complete analogy in construction and function between things not identical it would be difficult readily to conceive. But following the line of the appellant's argument, and leaving out of view, for the purposes of the case, the weights and draft mentioned in the claim, and the sleeves and pulleys suggested in the specification, and considering the spring only as a fit means for performing its allotted function, our conclusion cannot be different. While it is plainly true that the spring, when hitched to the plow beam, will tend to resist a lateral movement of the plow, the extent of the resistance, it is equally clear, will be proportionate to the distance of the point of attachment from the bolt upon which the beam is pivoted. To reduce the resistance, it would be only necessary, in a given case, as any intelligent person could see, to reduce that distance; and what the appellees did was to attach the spring to the bolt itself, lengthened out in order to prevent loss of power, and not, in the manner of Brown's patent, to a projection on the pipe box provided for the purpose. Once springs had been introduced into cultivators for the purpose of aiding the operator to move the plows vertically, if it can be said to have ever been a question, outside of the minds of solicitors and expert theorists, how the resistance of the springs to lateral movements could be. avoided, it was a problem whose solution was always too manifestly easy to be called invention or discovery. It was a matter of the simplest reasoning and observation. It was admitted at the argument that, so long as the process consisted in diminishing the resistance by moving the place of the spring's attachment on the plow beam towards the bolt, it involved no invention; but it is claimed that Brown made an original discovery when he perceived that by passing the bolt, and making the attachment in front, the resistance was entirely eliminated. The fact is evident, but no more so to men of ordinary intelligence now than it was before Brown applied for his patent; and consequently there could be nothing patentable to Brown in the discovery, if his intelligence is to be discredited by the assumption that the perception then first dawned upon him. Practically, the supposed problem would be solved just as well by connecting the spring with the beam at a point immediately behind the pivot bolt, within a distance of three, six, or perhaps even twelve, inches. In his patent of 1872, Brown had shown another mode of accomplishing the result by pivoting the fixed end of the spring like the pivoted part of a swinging bracket.