upon the first, and, when the second includes the first, neither patentee can lawfully use the invention of the other without his consent. Cantrell v. Wallick, 117 U. S. 689, 6 Sup. Ct. 970, 29 L. Ed. 1017; Caster Co. v. Crossman, 4 Cliff. 568, 22 Fed. Cas. 1133 (No. 13,321). It is true that every patent is prima facie evidence of the novelty of the invention described in the patent, but the inven tion patented is the invention set forth in the claim, and that only. Keystone Bridge Co. v. Phoenix Iron Co., 95 U. S. 274, 278, 24 L. Ed. 344; Railroad Co. v. Mellon, 104 U. S. 112, 118, 26 L. Ed. 639; Manufacturing Co. v. Greenleaf, 117 U. S. 554, 559, 6 Sup. Ct. 846, 29 L. Ed. 952. The identity or lack of identity in two patented inventions for similar devices must therefore be determined by a comparison of the claims of the two patents. The claims of complainant's patent No. 318,859, alleged to have been infringed, are as follows:

"(9) A dredge boat, having a self-contained pivot, forming a center of oscillation, with devices for swinging and working said boat upon said pivot, in combination with a suction pipe and exhausting apparatus." "(11) A dredge boat, having a self-contained pivot or center of oscillation, with devices for swinging and working said boat upon said pivot, in combination with a pipe for discharging the spoils. (12) In a dredging apparatus having a side feed and self-contained pivot or center of oscillation, a discharge pipe, flexibly mounted at or near said pivot, to allow said apparatus to swing without material alteration of the position of said discharge pipe. (13) In a dredging machine having a device for excavating from side to side of the cut, a discharge pipe extending from a discharging apparatus to or near a center of oscillation, where it is provided with a hollow, flexible joint, or other suitable connection, and is prolonged thence to a place of discharge." "(87) In combination with a dredge boat having devices for swinging and working said boat with a side feed, a hauling line having connection direct from the anchorage to the excavator support, and near the point of resistance, and arranged to throw a large portion of the strain of the side feed on the outer end of the apparatus carrying the excavating device."

The claims of complainant's patent, No. 318,860, alleged to have been infringed, are as follows:

"(3) The improvement in the art of dredging, which consists in oscillating the boat on a contained center, thereby making an arc-shaped cut during the side movement of the boat, substantially as described." "(5) The described method of dredging, which consists in oscillating the dredge boat on a center, and by such oscillation forcing an excavator continuously sidewise, thus making an arc-shaped cut, and drawing the excavated material inboard by suction."

The first of these patents was before this court in the case of Bowers v. Von Schmidt, 63 Fed. 572. In that case the defendant was proceeded against for infringing claims numbered 10, 16, 25, 26, 33, 53, 54, 59, and 75 of this patent, and also for infringing certain claims of another patent, not involved in this action. The defendant in that case justified the use of his machine under several patents,among others, a patent issued to him, numbered 185,600, dated December 19, 1876, for a "machine for dredging sand and mud from bars, rivers, harbors, and docks," and also under a patent issued to him, numbered 277,177, dated May S, 1883, for an "excavating, curved, rotating plow for submarine work." The court held that complainant's patent No. 318,859 was valid, and covered inventions of a pioneer

character, and that the claims were entitled to a broad construction. It was further held that the defendant had infringed claims Nos. 10, 16, 25, 53, 54, and 59. The case was taken to the court of appeals, where complainant's patents were fully considered, and the judgment of the circuit court affirmed. 25 C. Č. A. 323, 80 Fed. 121, 48 U. S. App. 120. In the present case the pioneer character of the Bowers invention was assailed at the trial by evidence of certain prior inventions relating to dredgers, which it was said had not been before this court or the court of appeals in the prior case, and which, it was claimed, anticipated Bowers' patent. Among others, there was introduced in evidence an English patent to Louis Schwartzkopff, of Berlin, dated August 9, 1856, for "apparatus for raising mud and soil from the bottoms of rivers." 91 Fed. 381. The defense based upon this prior invention, as showing the state of the art at the time Bowers applied for his patent, was pressed upon the attention of the court with great ability and zeal, and the opinion of the court was directed mainly to the consideration of that defense. After a careful examination of that device and its method of operation, it was determined that while the Schwartzkopff patent disclosed, in a general way, the idea of a dredging machine intended to operate as the Bowers machine does, it did not describe a machine which was effective to carry such an idea to a successful result. This conclusion necessarily left the claims of the Bowers patent entitled to the broad construction of pioneer invention, as held by the circuit court of appeals in the case of Von Schmidt v. Bowers, supra. What was the effect of this broad construction upon the claims of the Bowers patent? It was that Bowers being a pioneer inventor, and entitled to make broad generic claims for his inventions, without any limitation as to the form of construction of the particular elements, all subsequent machines which employ substantially the same means to accomplish the same results are infringements, notwithstanding the fact that the subsequent machines may contain improvements in separate mechanism which go to make up the machine. McCormick v. Talcott, 20 How. 402, 15 L. Ed. 930; Railroad Co. v. Sayles, 97 U. S. 554, 24 L. Ed. 1053; Clough v. Barker, 106 U. S. 166, 1 Sup. Ct. 188, 27 L. Ed. 134; Consolidated Safety-Valve Co. v. Crosby Steam Gauge & Valve Co., 113 U. S. 157, 5 Sup. Ct. 513, 28 L. Ed. 939. This was the scope of the injunction served upon the respondents. It commanded the respondents not to make, use, or sell any dredging machinery, appliances, or apparatus containing the inventions claimed, covered, and patented in and by the claims mentioned in the decree, and also from infringing in any manner whatever upon any of the specified claims. The question is, have the respondents violated the injunction with respect to any of the claims of complainant's patents in the making and using of a machine under the claims of the Parker patent? In the application for the Parker patent, the inventor declared in his specifications the particular improvement in dredging apparatus which he claimed to have made. He says:

"My invention relates to dredging apparatus, and more especially to that portion of the apparatus by which the material is transferred from the plows or diggers by which it is excavated to a distant point, where the dredged mate

rial is to be deposited, and in a means for advancing the digging apparatus as fast as it is required for the purpose of excavating in fresh ground."

He further points out the particular features of prior inventions for which he proposes to substitute his improvements, and says:

"In some forms of dredging apparatus the discharge pipe consists of a series of sections which are flexibly joined together, and supported upon floats or pontoons, and the pipe is so curved as to be of a considerably greater length than the distance between the dredging apparatus and the point of deposit, so as to enable the dredge to be advanced from time to time by gradually straightening out the curved sections to allow of this advance."

The inventor here refers to the form of discharge pipe employed in complainant's dredging apparatus, and he proceeds to distinguish the form of his discharge pipe from that of the complainant, in the following description:

"In my invention I employ rigid sections of discharge pipe, having suitably tight and essentially rigid joints, whereby they are united together, the whole forming a discharge pipe which may be supported upon the bottom of the stream, estuary, or other water way, if it is necessary to cross such water way; or it may be supported upon the land, if the digging is sufficiently near for the purpose; or if the digging takes place at a distance, across a considerable body of water, the pipe may be supported upon floats or pontoons so anchored in the line of direction of the pipe that the latter will be supported in as nearly a straight line as can be effected with such changes of direction as may be required made by the use of elbows, curved sections, or equivalent joints inserted at intervals between the pipe lengths, and the pipe is thus held in as nearly a rigid line as the effect of the wind and waves upon its supports will allow. The essence of this construction is the fixing of the conveying pipe without flexible joints as rigidly as possible, and as nearly in straight lines from the point of the reception of the dredged material to the point of delivery as can be maintained, and the connection therewith of a telescopic section of any desired length, which is extensible in the line of the pipe, without flexibility, for the purpose of advancing the excavating apparatus from time to time!'

He then proceeds to describe his improvements in detail, and concludes with his claims, which are 13 in number. The first claim is as follows:

"A dredger and telescopic section of discharge pipe, the latter firmly anchored in position, and rigidly joined to other sections of discharge pipe extending to the place of deposit for dredged materials, and a joint connecting the telescopic section with the dredger to allow the dredger to move from side to side when at work, and to move ahead as the work progresses, without disturbing said fixed section of discharge pipe."

The telescopic section of discharge pipe described in this claim is one of the essential elements of the combination, and is the device for advancing the digging apparatus as fast as it is required for the purpose of excavating in fresh ground. It is described as part of the combination in substantially the same language in all the claims, except the eighth and ninth. The second claim is as follows:

"In a dredging apparatus, a fixed conveying pipe having the receiving end supported and anchored, a telescoping section slidable longitudinally in said fixed portion, an excavator with suction and discharge pipes. said pipes being hinged at the rearward end to the first-named anchored section."

The fixed conveying pipe described in this claim is also one of the essential elements of the combination. It is described in claim 3 as

a pipe line composed of sections rigidly united together, and this description is repeated as part of the combination in substantially the same language in all the claims, except in the eighth and ninth. In the eighth and ninth claims the telescopic section and fixed conveying pipe are omitted, and a peculiar double-edged cutting dredger is described. These claims are as follows:

"(8) The combination with the suction pipe of a dredge having an opening in the lower side of the front end, of a cutter curved downwardly to form a loop with cutting edges upon both sides, whereby material may be excavated and delivered into the suction pipe by moving the latter transversely to either side. (9) The combination with the suction pipe of a dredge having an opening in the lower side of the front end, of a cutting blade curved downwardly to form a loop beneath the pipe opening, and having cutting edges upon each side, and plates projecting transversely upon each side of the rear of the cutter."

In the 13 claims of this patent these three elements, namely, (1) a telescopic section of discharge pipe, (2) a conveying pipe consisting of rigidly united sections, (3) a double-edged cutting dredger, constitute the improvements claimed by the inventor; and the first two are the essential elements required to enable the dredger to be fed forward from time to time as the work progresses, without moving the entire discharge pipe at each advance, and without the employment of the flexibly jointed sections contained in complainant's invention. Whether Parker was the inventor of these devices does not appear to be seriously questioned in these proceedings, and, for the purpose of the present inquiry, it may be assumed that these elements were improvements for which a patent might properly have been issued to the inventor. But it is clear that these three devices were not of themselves sufficient to be brought together as a combination, and operated as a dredging apparatus. It was necessary that they should be connected in some way, and the combination so united as a dredger as to be capable of performing the function for which it was designed. Is there, with respect to the claims of complainant's patent, an absence of identity in these particular connecting elements? Let us see. Turning to the complainant's invention, we find in claims 9 and 11 a dredge boat is described as having a self-contained pivot or center of oscillation, with devices for swinging and working the boat on this. pivot, and in claim 87 a dredge boat is described as having devices for swinging and working the boat with a side feed. In claim 12 the same mechanism is described as a dredging apparatus having a side feed and self-contained pivot or center of oscillation. In claim 13 the mechanism is described as a dredging machine having a device for excavating from side to side of the cut, a discharge pipe extending from a discharging apparatus to or near a center of oscillation, where it is provided with a hollow, flexible joint, or other suitable connection. Here we have the mechanism which in complainant's patent connects the dredger with the discharge pipe and makes it an operative machine. It is necessarily an essential and important element in the invention. There had been dredge boats before Bowers' invention, but they had never been pivoted or anchored, with an excavator firmly attached, so that the dredge boat

and dredger formed a rigid radius, and, as the boat would swing from side to side, hold the excavator to its work in a true arc path. In Bowers v. Von Schmidt, in this court (63 Fed. 572, 584), Judge McKenna, speaking of the flexible joints, and the office of flexibly joining the discharge pipe to the dredge in complainant's machine, said:

"It enables the action of the dredging machine to be continuous as it swings on a side feed and excavates. This is the essence of the invention,-the new result which was not accomplished before, and bears the test of all the definitions of combinations to which I have been cited."

In respondents' machine, how is this connection secured? In claim 1 of the Parker patent the telescopic section of the discharge pipe is connected with the discharge pipe on the dredger by a joint to allow the dredger to move from side to side when at work. The dredger referred to is substantially the same as the dredge boat described in complainant's patent. The discharge pipe on the dredger is marked, "Section B," and the joint is described in the specifications as being formed by a well-known swivel or rotary connection, about which joint the section B is turnable from side to side. In claim 3 a joint is used whereby the discharge pipe is connected with the telescopic section so as to allow the excavator to swing from side to side with relation thereto. In all the other claims, except in 8 and 9, a joint or hinge connection is described between the telescopic section and the dredging apparatus, which is clearly designed to allow the dredge boat, with an excavator forming a rigid radius, to swing from side to side when in operation, and thus hold the excavator to its work. In claim 3 the fixed point around which the dredge boat and excavator swing, as a rigid radius, is secured by anchoring the float carrying the telescopic section by means of a spud or pivot. In claim 4 a guide is fixed with relation to the front end of the telescopic section, and is anchored by means of a spud anchor adapted to fit said guide and maintain the slidable section in line with the main pipe. The fixed point or center of oscillation required in swinging the dredge boat and excavator, as a rigid radius, is secured by means of a spud anchor in the guide. In claim 6 this mechanism is described as a socket formed in relation to the front end of the telescopic section, and a vertical spud anchor passing through it, and fixing the end of the telescopic section with relation to the pipe line of which it forms a part, and a structure hinged and turnable about said spud as a pivot. In claim 10 the device is described in substantially the same terms as in claim 6. In claim 11 an anchor is not mentioned, but the center of oscillation is described as a turning joint to allow the excavator to swing from side to side. In the model of respondents' dredging apparatus exhibited in court, the method of operating the boat was clearly established in accordance with the claims of the Parker patent. The swinging of the dredge boat and excavator as a rigid radius is secured by anchoring the front end of the float carrying the telescopic section by means of a spud or anchor, and in the connection between the discharge pipe on the dredge boat and the discharge pipe on the firmly-anchored float is a rotary joint in the pipe, as