OTIS BROS. MANUF'G CO. 'II. CRANE BROS. MANUF'G
00.065
application after it had been persistently rejected, muat be strietly construed against the inventor, and in favor of the public, and looked upon as in the nature of disclaimers." Sargent v. Hall Safe ft Lock 00.,114 U. S. 63; S. C. {) Sup. Ct. Rep. 1021; Dodds v. Stoddard, 17 Fed. Rep. 645; Manufacturing 00. v. Oorbin, 103 U. S. 791. "It is well known that the terms of the claims of letters patent are care,; fully scrutinized in the patent-office. Over this part of the specification the chief contest generally arises. It defines what the office, after a full examination of previous inventions and the state of the art, determines the applicant is entitled to. The courts, therefore, should be careful not to enlarge by construction the claim which the patentoffice has admitted, and which the patentee has acquiesced in, beyond the fair interpretation of its terms." Burns v. Meyer, 100 U. S. 672. If this patentee had described the state of the art upon which he wished to engraft his improvement, he would have said, in substance: "1 have connected the valve levers and the brake lever of the E. G. Otis machines, by means of the pulley, f, and the chain, e, so that the valve and the brake can be simultaneously worked by one movement of the shipper belt; the shipper belt haviug formerly worked the valve only." Read in the light of the proof in this case, it seems to me all that this inventor did which had not been done by his father, and immediate predecessor in business, was to connect the brake and valve attachments together by his peculiar mechanism; for he was not the first to connect the valve of a steam-engine with the brake of the hoisting apparatus, so that the brake would be open when the valve was opened, and closed when the valve was closed; as Robertson, in his patent of 1857, had shown how that could be done in two ways; and in the Claflin machines 2 and 3, according to the testimony of Mr. C. R. Otis, the steam could be shut off and the brake applied by pulling down the two ropes at the same time; and it would seem, also, from his testimony that the two ropes were placed near' together, so as to enable them to be pulled and the brakes and valves closed at substantially the same time. Looking upon this patent, then, as limited to the peculiar arrange. ment of parts shown, and not to the results produced,-for such results were not new,-the question is, do defendants use the combination or arrangement of parts shown in the patent, or known equivalents, for performing the same function? 'rhe defendants' valveactuating mechanism consists of a valve lever, movable up and down from its central or closed position by an endless rope or chain. There is no rack or pinion movement, and no belt around a pulley. The endless rope attached to the lever is simply pulled up and down to start, stop, or reverse, without the intervention of the rack, pinion, or pulley, substantially as shown in complainants' model Claflin machine Nos. 2 and 3. Defendants' brake lever is operated by a cam, to which motion is communicated by means of a rod from the valve le'ver, combined with a peculiar safety device for setting the brake in
S5G
;FEDERAL REPORTER.
eaee of a break of the driving belt; and while it may be said that all these parts co-operate to produce the same result produ,ced by the Otis device, yet they are not the same elements, and do not operate together in the same manner. It does not seem to me that the defendants' heart·shaped cam can be held to be a equivalent for the complainants' pulley, .r. and the chain, c, or the toggle joint. The whole arrangement of parts seems to be much more simple, and consequently more reliable in practical use, than that shown by the patent. Starting, stopping, and reversing valves of various forms, with levers to work them, being old, and there being old devices for connecting these valve levers with brake mechanisms of hoisting apparatuEi, wbereby the brake was applied when the valve was closed, and released when the valve was opened, these defendants had the same right to improve this old mechanism as had the patentee. The fact that he produced an old result by a less complex, and conse. quently more effective, combination of old elements, is no reason why defendants should not be allowed to make new combinations of these old levers, rods, and cams to produce the same result, so long as they do not use the same combination of parts shown by the patent to effect the same result. It seems to me that Mr. Otis, and those who preceded him, started with a lever to a start, stop, and reverse valve, and a brake lever working a hand-brake upon a hoisting-drum; and the problem they sought to work out was, first, to actuate the valve and the brake lever from the cage, so as to control the movement of the cage. This was accomplished in two ways by the elder Otis, and then Mr. C. R. Otis attempted the further problem of connecting the valve and brake levers together, so that they co-operated to produce the result of setting the brake when the steam was shut off, and opening it when the steam was let on. The defendant started with the same old . parts,-the valve lever and brake lever,-and worked out the same result by different instrllmentalities, dispensing with chains, links, ratchets, pinions, and pulleys, which were ueed by the com plainant ; thereby, as it seems to me, fairly and meritoriously avoiding the complainant's patent by not using the complainant's combination to produce the same results. It therefore seems to me, the defendants do not infringe patent No. 44,740. Patent No. 47,773 is for a stopping device used to stop the cage at the top and bottom of the sbaft. It is what is known in mechanics a. "limit stop," and is arranged to work antomatically, to shut off steam at the top and bottom of the shaft if the operator becomes ca;reless and neglects to do so. It consists chiefly of a shaft on one end of which is a screw thread, which is traversed by a nut with a tail or projection upon it. This tailor projection is carried or runs, for a portion of the distance, in a slot, so that as the shaft is revolved the nut travels in the slot, motion being given to t4e screw attached to the same shaft that carries the thread by, a
OTIS BROS. MANUF'G CO. V. CRANE BROS. MANUF'Q CO.
:557
hoisting drum. The parts are so arranged as that the nut shall traverse the screw to a certain point during the time the cage is passing from the bottom to the top, or from the top to the bottom, of the building. When this nut reaches the limit point, it locks the shaft so as to revolve it, and engage with the bevel-gearing, which works in connection with the valve lever so as to close the valve of the engine. It does not effect the brake mechanism, and neither sets nor opens the brake. The claim is: "Combining the stop-valve of the engine with the valve of the steam hoisting apparatus in the shaft of the main drum; or with any other shaft or counter-shaft of the hoisting apparatus, by means of a stop motion, constructed, applied, and operating substantially as herein specified." . Defendants use two circular plates laid together, with a spiral channel cut on the inner face of one, in which a stop travels as the outer plate is rotating, and when the stop reaches the end of the spiral groove it locks both plates, and moves a rod connected with the valve Jev6r so as to cut off the steam. If the complainants' patent could be said, in any sense, to be a bottom or foundation patent, I should be much inclined to the conclusion that the spiral channel in defendants' plate, with the traveling stop, is the equivalent, for the screw shaft and traveling nut of the complainants' patent; but the complainants' patent seems to me a mere Improvement upon the principle shown in the English patent of 1858, of Gidlow, and Law's English patent of 18tH. In fact, it seems but little else than an adaptation of Law's device, as shown and described in his patent, to the peculiar mechanism of the complainants' elevator. Law says in his specifications: "My invention is intended to prevent the overwinding of Pits' cages, and the sad accidents resulting therefrom. It consists of a screw-shaft, which may be a continuation of the driVing or any other shaft, in connection with the engine employed in Winding. The sail! screw-shaft is furnished with a suspension lever, through one enl! of which it works; but the other end being free, the said suspension lever hangs down vertically from the said screwshaft, and is caused to traverse the same backwards and forwards from end to end, as the shaft is turned in either direction. The distance it is allowed to traverse the said screw-shaft is regulated by set-nuts. or otherwise, in acwith the length of rope to be wound from the pit. It will readily be understood that when the engine is started the said suspension lever is caused to traverse the said screw-shaft by its turning until it arrives at one of the same, when it is at once brought to a stop by coming in contact nd with a collar or set-nut, which lifts it, and causes it to strike simultaneously against catches or stops on the ends of two horizontal levers, one of which is connected with and puts on the engine brake, and the other, being in connection with the slide-valve, shuts off the steam or reverses the engine." In the light of this description of the Law patent, there can scarceI$' be a serious doubt that its principle and mode of operation is substantially the same as that of the complainants' patent; but, inasmuch as both the complainant and the defendant in this case seem to me to occupy the position of improvers upon old devices in hoisting-
558
I'EDERAL REPORTER.
machines, the readier and more natural conclusion is that defendant's improvement is not the same combination of devices as the complainant's, and does not show the same kind of stop devices that is shown and covered by complainant's patent. Soon after this bill was filled, and before defendants had answered the same, a demurrer was interposed raising the question of misjoinder of the complainants. The suit is brought by the Otis Bros. Manufacturing Company of New York, and the Smith, Beggs & Co. Machineworks of St. Louis, as joint complainants. It was urged in this demurrer that there was no such showing in the bill as entitled these parties to join in this suit. I overruled this demurrer on the ground that I preferred to understand the entire facts in the case before passing definitely upon the question raised by it, allowing the defendants to reserve their demurrer by their answer. The defendants again insisted at the hearing upon this question, and it has been again considered. It appears, from the proof, that the Otis Bros. Manufacturing Company were the owners of the patents in question; that on the eighth day of March, 1877, said compauy assigned to the Smith & Beggs Co. Machine-works of St. Louis all their interest in these patents in certain states, including the state of Illinois, conditioned upon the performance by the Smith, Beggs & Co. Machine-works of the terms and conditions of an agreement made by the Otis Bros. Company with Anthony W. Smith and others in reference to said patents on the same day; and in case the Smith, Beggs & Co. Machine-works did not so perform all the conditions of their contract, the title conveyed by said assignment was to re"ert to the Otis Bros. Company. It thus appears that the title of the Otis Bros. Company was ne\'er fully divested, or, at least, that they had a possible reversionary right in the patent. They were also the owners of the patent in other portions of the United States, and, being such owners. were conditionally interested, at least, in the patents within the territory of Illinois, and generally interested in having their patents upheld. It seems to me they had a right to join with the Smith, Beggs & Co. Machine-works in this suit, because they were interested in the proper prosecution and protection of the patent, as well as possibly interested in whatever might be recovered in this case. I think, therefore, the objections for misjoinders are not well taken. The finding of the court, therefore, is that defendants do not infringe either of the patents mentioned in the bill, and that the bill should be dismissed for want of equity.
ALABASTINE
co.
tI. PAYNE.
659
Co. ". PAYNE.1 May 10, 1886.)
(atrc'Uit Court, N. D. Nf/lD York.
1.
PATENTS FOR INvENTIONs-INFRINGEMENT.
Letters patent No. 161,591, granted to Melvin B. Church, April 6, 1875, for an Improvement in calcimine, of pulverized calcined gypsum and white glue, the latter being dissolved m hot water, and, when cold, stirred into the gypsum with sufficient cold water to bring the mixture to proper consistency to be applied with a brush, is Infringed by one who sells a dry mixture of pulverized calcined gypsum and glue, put up in packages, with printed directions for reducing such mixture to a liquid according to the formula of said patent.
9.
SAME-AcCESSORY TO INFRINGEMENT.
In selling a compound which the seller knows cannot be practically applied without the user a trespasser, such seller renders himself an accessory to the infrmgement.
Motion to Dissolve Injunction. George H. Lothrop, for the motion. John R. Bennett, opposed. COXE, J. The complainant is the owner of letters patent No. 161,591, granted to Melvin B. Church, April 6, 1875, for an improvement in calcimine. The inventor, in the specification, says: "1 take of pulverized calcined gypsum nine pounds. and of white glue one pound, the glue having been previously dissolved in hot water. When this glue, thus dissolved, is cold, I stir it into the gypsum in any suitable vessel, adding thereto, from time to time, suffieient cold water. until the mixture has the consistency of mixed paint for priming coats. when it may be laid on the wall with a brush. where it sets slowly; affording a hard. dead-smooth surface. that will not rub off. and is much cheaper than the calcimine which has whiting or zinc for the body." rfhe claim is for "a calcimining compound, adapted to be used with brushes, composed of pulverized calcined gypsum, dissolved glue, and cold water, substantially as described." It is conceded by the defendant that this patent is valid; or, to be more accurate, that he is not in a position to deny its validity. The question of infringement, therefore, is alone involved. The defendant has sold to consumers in this district a compound known as "Anti.kalsomine," composed of pulverized calcined gypsum and white glue, manufactured and sold to him by a company located at Grand Rapids, Michigan, of which Melvin B. Church, the patentee, is president, general manager, and prime mover. Church was for years; as superintendent of the complainant corporation, engaged in manufacturing and selling a compound known as "Alabastine,:' which he then insisted and publicly proclaimed was protected by the patent in controversy. I:Iaving dispos.ed of his patent to the complainant, a:Q4.SElVered connection with his fonner
all
1 Edited
by Charles C. Linthlculn/Esq.;'of theChiCligobar.