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or disclosure of the employment of a wide cutter to cut the buttonhole slit at one stroke. Hence the Felber patent does not show or disclose the invention of said claims of the patent in suit."

Much testimony has been taken upon the question whether one Egge or Osterhout was the prior inventor of an automatic buttonhole cutter. The evidence as to the original Egge machine, of 1879, for stitching buttonholes, and as to the cutter mechanism attempted to be used therewith, is not directly material, as the proposed cutter attachment never went into practical use, and was a mere abandoned experiment, and also because Egge has failed to show reasonable diligence in reducing to practice, or any excuse for his long delay. He admits that he knew of no sewing-machine head on which this cutter attachment could be used; that he left it out of his application for a patent for the automatic buttonhole stitching device; that, in his crude suggestion of a cutter capable of being used therein, he stated that he preferred to cut the buttonhole in the usual manner, after it was made; and that he never attempted to introduce or sell or reproduce said cutting mechanism. But in January of 1885 Egge again began experiments in the construction of a buttonhole stitching and cutting machine; and in the latter part of February, 1885, he constructed and operated a practical machine, containing a cutting mechanism, for which on July 13, 1886, he obtained patent No. 345,419. The machine feeds at every vibration of the needle bar, and a lug or trip on the feed bar, contacting with or pressing against the crosspiece, keeps the cutter elevated until after one side of the stitch and the barring stitchings are completed. Then, as the feed bar commences to move backward, said lug permits certain pawls to come into vertical alignment, and the cutter is depressed by the upward movement of said crosspiece. The operator then shifts the feed plate to make the barring stitches, and thereby determines the cutting operation. It will thus be seen that the Egge 1885 machine was not strictly an automatic cutter, as applied to the then existing machines. Irrespective of the objections to its practical operation, it was constructed upon a different principle from that embodied in the device of the patent in suit. It did not comprise a rotary cutter controller, nor any device capable of automatically cutting a buttonhole slit, by a single stroke of the cutter at a predetermined point in the sewing operation. The mechanism for forming the complete buttonhole was necessarily shifted by hand. The machine of the Egge patent, therefore, is so differentiated from that of the patent in suit that at most, if it be prior in conception and reduction to practice, it can only affect the claim of the patent in suit as a pioneer patent.

This review practically covers the devices introduced as anticipations which are earlier than the invention of the patent in suit, and the Egge 1885 machine. An examination of the patents and models, and a consideration of the expert evidence and of the arguments of counsel, have failed to satisfy me that any of the devices materially detract from the evidence of inventive skill shown in the Osterhout patent. Some of the machines were failures. Others worked imperfectly. The Felber and Egge devices, which gave the best

sults, were constructed and operated upon principles which led away from, rather than towards, the fundamental invention of the patent in suit.

In December, 1884, Österhout, the patentee of the patent in suit, commenced to reduce to practice a cutter attachment which he claims to have conceived and disclosed as early as 1881. He claims that he completed the first machine in the latter part of February, 1885, and that he completed a second machine in March, 1885. Thus, it will be seen that each of these inventors, Osterhout and Egge, claims to have reduced his conception to practice at the same time. It has already been shown that Egge's earlier experiments were abandoned. I do not feel satisfied as to which of these inventors is entitled to priority. But, in view of the radical differences between the Egge and Osterhout constructions, already stated, and in view of the decision of the patent office as to Tebbetts & Doggett, this evidence is not very material.

In this art, as already stated, two kinds of cutters are recognized: First, the step by step cutter; second, the single-stroke cutter. In the former a small knife is used, and the cutting is effected by imparting several distinct movements to the cutter. In the singlestroke cutter a knife of the size required to cut the particular buttonhole is used, and only a single cut is necessary. The defendant claims that Osterhout first attempted to use the principle of the single-stroke cutter, and afterwards abandoned it, and, having got the idea of using the step by step cutter from the subsequent invention of other persons, he finally secured a patent upon the principle of an automatic, step by step cutter, while the defendant's patentees were the first inventors of a machine covering the principle of the single-stroke cutter, arranged to operate automatically. I think defendant has failed to prove this point. While the conflicting evidence cannot be satisfactorily reconciled, it is sufficiently shown that Osterhout was engaged in attempts to develop both the single-stroke and the multiple cutter, and that he finally claimed both forms of his invention in the original application for the patent in suit.


"In applying my invention to various buttonhole sewing machines. I either have the cutter, i, wide enough to cut the whole length of a buttonhole at one stroke, or at a few strokes, and the cam part, P, so short, and the part, e, of the bar or lever, L, so narrow, as to cause the cutter carrier to be engaged with and depressed by the needle carrier only once, or a few times, while the cam, P, is passing the part, e; or I have the cutter of any desired less width, and the parts, e, and P. or one of them, of corresponding greater extent, as illustrated by the drawings, so that the cutter carrier will be engaged with and depressed by the needle carrier a greater number of times to progressively cut the work while the part, P, is passing the part, e."

"In Figs. 33, 49, 53 and 57 the cutter, i. is broad enough to cut the whole length of a moderately short buttonhole at one stroke, and such a broad cutter can be secured to and used with each cutter carrier shown in the other figures. When such a broad cutter is used, the part, e, of the bar or lever, L, and the cam or part, P, should each be reduced to a suitable size or tooth."

But in further support of this contention the defendant claims that three things are essential to the operation of the Osterhout device, namely, the to and fro or jogging motion of the feed-wheel

mechanism, to put the cutter carrier into engagement with the depressor on the needle carrier when the goods are in the edge-stitch position; the rotary movement of the feed-wheel disk to regulate the length of engagement of the controller with the lever, and to determine the cutting operation; and, as involved therein, the surface contact of said controller relative to the length of each feed movement. By a series of operations, upon the argument, counsel for defendant demonstrated that its machine did not use said jogging motion at all in connection with the action of the cutter-operating mechanism, and only used the rotary motion to start the cutter device by a pin, and did not depend upon any contact surface to determine the cutting operation. They further show that the original Osterhout device was so constructed that, in practical operation, it sometimes cut beyond the buttonhole. They claim that, in the revolution of the feed wheel, it is impossible to so practically control its operation that the parts shall always be automatically put in engagement at a predetermined point, and the cutter controller operate in the same relative position, because the controller, being mounted upon the cloth clamp actuating mechanism, depends upon the movement of said parts for its operation. In defendant's device, the operation of the cutter not being dependent upon the cloth clamp actuating mechanism, it is claimed that the element of uncertainty as to cutting does not enter into the operation of its cutter controller. Of course, this evidence, although it may show an improvement upon complainant's device, would not, for that reason, relieve defendant from the charge of infringement, but these facts. are relevant as tending to show that the means employed in the two machines for effecting the termination of the cutting are different. In each machine there is a jogging and a rotary movement. In each the effect of the rotary movement is to effect the engagement of the controller with the cutter. Each machine starts the cutting operation in the same way. If the correctness of defendant's contention as to differences of operation be assumed, it does not meet the evidence that the original application described an operative device actuated by a cam working in harmony with the progressive movement of the work carrier, and not necessarily limited to a construction dependent upon the combined rotary and jogging motion for causing a depression.

It is further claimed by counsel for defendant that, in the train of mechanism between the operation of the sewing machine and the cutter controller, a frictional element, essential to the operation of complainant's machine, caused a slip, by reason of the friction-driv ing device on the feed wheel, and necessitated a rearrangement of the relative position of the parts in order to prevent an additional cutting operation. I do not understand why, in this respect, there is any difference in the operation of the two machines, and I therefore do not give any weight to this latter claim..

Complainant argues that its original device, which was confessedly an operative machine, is not limited to a controller which controls the operation of the device throughout the cutting operation, but that, as is shown by claims 21 and 22, it also covers a

device for automatically starting the cutter. The original application covered a construction whereby the cutter might be put in engagement independently of the jogging motion; and complainant forcibly contends that, inasmuch as claims 21 and 22 of the patent refer only to using the cutter controller as a starter, and as the defendant also uses the cutter controller as a starter, it has infringed said claims, considered as a subcombination of the general combinations covered by the other claims. An essential difference between these two claims and the others here in suit is that the latter are limited to a construction moving upon the clamp-feed mechanism, or located on the rotary feed wheel, while the former cover broadly a construction actuated by a cam or device rotating in unison with the clamp-operating cam or disk for throwing the cutter or depressor into action. While it is true that the device of defendant is so constructed that it is not dependent upon the jogging motion of the feed-wheel mechanism for the determination of the number of strokes of the cutter, and while it is true that the complainant's device is thus dependent, yet the specifications do not necessarily describe a controller which thus determines the engagement, or, if they do, they also describe a pin on the feed wheel, which operates as aforesaid, to start such engagement; and the claims 21 and 22 cover the finger device used merely as a starter, and nothing more. They do not claim or refer to any control thereafter. I think defendant, by means of its modified or added devices, may have constructed a better machine than that of complainant, and the later Osterhout and Hallenbeck construction confirms this view. But, from a comparison of the two machines, it appears that in the features which are common the defendant has appropriated devices first conceived and created by Osterhout, and unlike anything in the prior art. The features comprised in claims 21 and 22 of a normally elevated cutter, positively connected with, and unyieldingly actuated and depressed at a certain time by, a depressor operated through or by means of the needle bar actuating mechanism, and a cam or device operating or rotating in unison with the feed cam whereby the cutter is thrown into action, are found both in complainant's and defendant's machine. If, therefore, it be necessary to limit certain claims of the patent to a cutter controller which determines the duration of the cutting period, as is claimed by defendant, yet, inasmuch as the specification describes, and claims 21 and 22 broadly cover, such combination used as a starter, and nothing more, I think these claims are infringed by defendant.

These claims were put in interference with the Tebbetts & Doggett patent, and the applicants for the latter made default, whereupon the patent office awarded said claims priority over Tebbetts & Doggett. Counsel for complainant argues that defendant thereby conceded patentability of its invention, and that defendant's patent infringed said claims. I do not so understand the law. The object of the interference proceedings is to determine priority, not patentability; and, while the decision in interference proceedings may be res adjudicata as to this question, it does not preclude

defendant from raising other questions not in issue in said proceedings. Holliday v. Pickhardt, 29 Fed. 853; Christie v. Seybold, 6 U. S. App. 520, 5 C. C. A. 33, 55 Fed. 69; Electric Ry. Co. v. Jamaica & B. R. Co., 61 Fed. 655; Reece Buttonhole Mach. Co. v. Globe Buttonhole Mach. Co., 10 C. C. A. 194, 61 Fed. 958. But the decision of the patent office effectually disposes of defendant's claims of priority, so far as they are based upon the Tebbetts & Doggett patent. Claims 21 and 22 were originally drawn by counsel for defendant as part of the Tebbetts & Doggett application. The patent office adopted them as a basis for interference with the patent in suit. All the prior patents, except the Ostrom corder patent, were cited as references in said interference. Defendant's counsel did not move to dissolve, but defaulted, and acquiesced in the decision of the patent office awarding priority of invention to Osterhout. The Osterhout and Tebbetts & Doggett machines are the only practical buttonhole stitching and cutting machines now in practical operation, except the Reece machine, which is not relevant in this connection, owing to its totally different construction.

The considerations already suggested apply to defendant's argument that the application was improperly enlarged during its pendency in the patent office. That the invention infringed by defendant was disclosed in the original application, and covered in its claims, and that it was not limited to a dependence upon the jogging movement, is clear from the language thereof. That claims 21 and 22 were not inserted to subordinate defendant's prior machine, has been adjudicated by the patent office. It has not been proved that Egge was prior to Osterhout. Irrespective of the fact that his machine was defective and nonautomatic, its construction was so unlike the combination covered by claims 21 and 22 that there was manifestly no enlargement to cover it.

But, in further support of the defense of noninfringement of any of the claims, defendant contends that the original Osterhout application contemplated a cutter actuated only when the finger is thrown into coaction with its follower; that the snail cam on defendant's device positively throws its vertical rocker shaft out of engagement with the starting pin as soon as the cutting operation is set in motion; that Osterhout, in his patent, says, "I control by a controller on the feed wheel," while Tebbetts & Doggett say, "We do not control by a controller on the feed wheel, but merely push the button so as to put the controller in engagement with the train of operative mechanism and subsequent operations, and eliminate all control from the pin or controller on said wheel;" that, in the present operative machine of complainant, it has been obliged to take away the control of the cutting operation from the controller, in order to get the best results; and that although a machine can be devised which shall be operative, as already stated, in the hands of an expert or skillful operator, when constructed on the principle of the original Osterhout machine, yet that it requires such nice adjustment as not to be capable of use in the ordinary factory, as shown by the patent granted to said Osterhout and one Hallenbeck, as joint inventors. And finally counsel for defendant insist that, if

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