318
FlttJERAL REPORTER.
HASSELMAN
v. G:un and others.'
(Circuit Court; D.. Indiana. November 18,1886.'
1.
The sixth ,and eighth claims of reissued letters J)atentNo. 10.347, (original . No. 274,940.) issued November 22, 1883, to Lewis W. Hasselman, for a strawstacker, held anticipated by patent No. 152,760, of July 7, 1874, to Morey, for hay a,nd grain elevator. ' SAME.
PATENTS FO:S !NVENTIONS-STlU:W·STA,(JKERs.
2.
Claim Sof letters patent No. 290,050, issued December 11, 1883. to Lewis W. Hasselman, for a straw-stacker, does not cover a new combination, and, as added to a straw-stacker, is nothing but an aggregation of well-known devices, which in their new relation perform no new office, and such claim is therefore void.
In Chancery. O. P. Jacobs, for Wood et Boyd, for defendants. WOODS, J. The 'complainantis the patentee and owner of letters patent No. 10,347, reissue of No. 274,940,and of original patent No. 290,050, and charges that the defendants have infringed the sixth and eighth claims of the reissue, and the third claim of the lastnanred patent, by manufacturing and putting upon the market a straw-stacker embodying the set forth in those claims, respectively. The claims in question read as follows:
"(6) In a straw-stacker, the folding straw-carrier,A, B, the supporting frame, F, F, the revolving plate, b, and the straw-c.arrier braces, G, G, adapted to rotate upon the axis, E, when the carrier frame is tilted, in combination with the axis, E, the windlass, L, and a rope connecting the windlass with the carrier, substantially as and for the purpose described." "(8) In a straw-stacker, the folding and tilting carrier, A, B, adapted to revolve on the fifth wheel,.b, in combination with such wheel, a supporting frame, the stay-rope, I, brace, 11, windlass, L, and its crank, e, located and operated below the carrier frame, substantially as describ,ed." "(3) In a straw-stacking machine, the windlass, sp, mounted on a shaft, S8, the cogged gearing, cg, cg 1, shaft, 8 2, and crank, cr,' the shaft, S3, being provided with a ratchet, engaging a paWl on the frame, as set forth, in combination with the chain, ch, and carrier arm, P, substantially as described, and for the purpose set forth."
The defenda.nts deny novelty and invention in each of these claims, and make the following references to the prior art, to-wit, letters patent of the United States granted D. Morey, July 7, 1874, No. 152,760; W. R. Maloy, September 12,1882, No. 264,311; J. D. Edward, February 20, 1877, No. 187,607; J. W. Perkinson et al., April 17,' 1883, No. 275,941; H. Cortelyou, December 26, 1882, No. 269,561; J. Q. Adams, May 2, 1876, No. 176,916; M. T. Reeves, reissue, September 26, 1882, No. 10,208; C. E. Merrifield, March 20, 1883, No. 274,134; J. C. Lindley, March 20, 1883, No. 274,205; O. E. 1 Edited
by Charles C. LinthicuIll, Esq., of the Chicago bar.
J;lAllSEJ.MAN
,v.
GAAl\.
319
Merrifield, February 20, 1883, No. 272,572; D. Sherry, February 20. J8133, No. 272,487; M. T.Reeves et al., ,Februal'v 13,,1883, No. 272,155; H. D. Sprague et -at., July 25, 1882, No. 261,770; H. S. Stone and J. M. F. Shepler, February 6, 1883, No. 271,943; J. M. Crawford, March 6, 1883, No. ,272,470; H.Cortelyou, May 9, 1882, No. 257,556; No. 25,540, granted toT. F. Christman, June 28, 1859; No. 24,912, granted t,o Y.:rarce, July 26, 1859; No. 263,151, granted to J. P. Edwards, August 22, 1882; No. 265,775, granted to G.; B. Allis, December 12, 1882; also English letters patent dated October 25,1872, No. 3,169, granted to Thomas, Perkins, and English . letters patent, No. 700, dated February 29, 1868, granted to William Barford and William Perkins. Tlierejsa close reselllbla.nce, if not atnecbanical identity, between the model in evidence of defendant's machine and that of complainalit to the claims in question ; but, in view of these referit' Mems to me quite clear that the' bill must be dismissed. There is certainly nothing new in the combination described in the third claim of No. 290,050, and, as added to a straw-stacker, it is notbing, but an aggregation of well-known devices, which in their new felation,.if itca.n be called new, perform no new office. In respect to the other claims,--,.sixth and eighth of No. 10,347,their respective parts or equivalents, substantially intbe same combination,and performing like functions, are all found in the drawings and exbibited in evidence of the Morey "Hay and Grain Elevator,"patent No. 152,760, issued July 7, 1874; the complainant's patent bearing date as late as 1883. Other earlier patents show many, but not all, of the parts of complainant's combinations, and are therefore not complete anticipations; but, in connection with Morey's patent, exclude all reasonable pretense of invention on the part of the complainant. In order t,o convert the Moreyniachine into substantial identity of IDechanism and use with that of the complainant, in so far as the sixth and eighth claims are concerned, there was needed, as is shown by a comparison of the models and by the testimony of experts on either side, no addition, nor essentially new combination, of parts, but only a reversal of the direction of motion of the carrier, an eliminationof E!orne parts, and other slight changes, within the ready scope of ordinary mechanical skill. It follows that the bill must be dismissed. So ordered.
320 CuRRAN
FEDERAL REPORTER.
and others
11. ST. LoUIS REFRIGERATOR
and others. 1
&
WOODEN GUTTER
Co.
(Oircuit (Jourt, E. D. MiB80Uri.
December 18, 1886.)
In Equity. Demurrer to Bill. This is a bill for injunction and damages for the alleged infringement of three reissued letters patent, all for improvements in lumber driers, viz.: (1) Reissued letters patent No. 9,309, issued July 20, 1880, to E. J. Sumner's assignees, being reissue of original letters patent No. 125,. 098, dated March 26, 1872; (2) reissued letters patent No. 8,846, issued August 12,1879, to J. J. Curran and C. Wilcox, originally granted March 30, 1875, aud numbered 161,490; (3) reissued letters patent No. 8,840, issued to J. J. Curran and C. Wilcox August 12, 1879, originally granted April 10, 1877, and numbered 189,432. The defendants demur upon the following grounds, viz.: "(I) That the complainants have not made or stated such a case as entitles them in this honorable court to any discovery or relief in respect to the infringement charged of the second clause of the claim of said letters patent reissue No. 8,30\), for that it appears by the said bill of complaint that letters patent No. 125,098, whereof profert is made in the said bill, were issued and granted March 26, 1872; that the reissue thereof, No. 9,309, whereof profert is also made, was granted and issued July 20, 1880, upon the application of the patentee made October 28, 1879; that the said letters patent reissue No. 9,309 contain a clause in/the claim thereof not contained in the claim of the said original letters patent No, 125,098, to-wit: the clause numbered 2 therein, which is an l'nlargement of the scope of the claim of said original letters patent, whereby the said reissue letters patent are made to claim new subjectmatters of invention not contained in or covered by the claim of said original letters patent; that, inasmuch as the said patentee delayed and neglected for more than seven years to apply for the said reissue letters patent No. 9,309, the grant thereof with said second clause of its claim was contrary to the provisions of the Revised Statutes of the United States, tit. (j0; c. 1. "(2) That the complainants have not made or stated such a case as entitles them in this honorable court to any discovery or relief in respect to the in. fringement charged of the second, fifth, and sixth clauses, or either of them, of the claim of said letters patent reissue No. 8,846, for that it appears by the lEdited by Benj. F. Rex, Esq., of the St. Louis bar.
CURRAN ". ST. LOUIS REFRIGERATOR & WOODEN GUTTER CO.
321
said l'Hl of complaint that letters patent No. 161,490, whereof profert is made in the said grapte4and issued March 30, 1875; that the reissue thereof, No. 8,846, whereof profert is also made, was granted and issued patentee. therefor. made July 2, August 12, 1879, upon the lI:ppIication of 1879; that the said letters patent reissue No. 8,846 contain three clauses in the claim thereof not contained in the claim of the said original letters patent No. 161,#:10, to-wit: the clauses numbered 2, 5, and 6 therein, each of which said clauses enlarges the scope of the claim of said original letters patent, whereby the said reissue letters patent are made to claim new SUbject-matters of invention not contained in or covered by the claim of the said original letters patent; that, inasmuch as the said patentee delayed and neglected for more than four years to apply for the said reissue letters patent No. 8,846, the grant thereof with said second, fifth,and sixth clauses of its claim was contrary to the provisions of the Revised Statutes of the United States, tit. 60, c.l. . "(3) Tbat the complainants.have not made or stated such a case as entitles them in this honorable court to any discovery or relief iI} respect. to the. infringement charged of the fifth and seventh clauses, or either of them, of the claim of said letters patent reissue No. 8,840, for that it appears by the said bill of complaint that letters patent No. 189,432, whereof profert is made in said bill, were granted and issued April 10, 1877; that the reissue thereof, No, 8,840, whereof profert is also made, was granted and issued August 12, 1879. upon the application of the patentee therefor mf\de July 2, 1879; that said letters patent reissue No. 8,840 contain two clauses in the claim thereof not contained in the claim of the said original letters patent No. 189,432, to-wit: the clauses numbered 5 and 7 therein, each of which said clauses enlarges the scppe of the claim of said original letters· patent. whereby the said reissue letters patent are made to claim new subject-matters of invention not contained in or covered by the claim of the said original letters patent; that, inasmuch as the said patentee delayed and neglected for more than four years to apply for the said reissue letters patent No. 8,840, the grant thereof with said fifth a.nd seventh clauses of its clliim was contrary to tbe provisions of the Revised Statutes of the United States, tit, 60, c. I." Krwm &: JO'Yla8 and Jesse Cox, for complainants. Hyde, Dickinson & Howe and Elmer P. Howe, for defendants. TREAT, J. As to reissue No. 9,309, the same not having been made for more than seven years after the original patent was issued, the said second claim in the reissue cannot beupheldj therefore demurrer thereto is sustained. Reissue No. 8,846, as to the claims referred to in the demurrer, the court holds that the demurrer is well taken as to the second claim, but not as to the fifth and sixth. As to reissue No. 8,840, the demurrer is overruled as to the fifth and seventh claims therein.
v.29.F.no.8-21
EEDERAL REPORTER.
NEWARK MAclmtm CO. v. GAAB andothers.1 (Circuit Oourt. D. India1/,a. November 18, 1886.)
1. 2.
On the lame record and evidence "as in Newark Machine 00. Fed. Rep. 567, the decision in that case followed. BAlI:E:"':CONSTRUCTION 011' CLAIMs-INFRINGEMENT.
lI'oRINVENTIONs-CLoVER-HuLLERS-SEED-OLEUERS.
'
28
'If the patentability of the devIces claimed in letters patent No. 822,465, of , JUlr21,1885, to Miller. for recleaner for grain-separators. ,be conceded, the claIms must. in view of the prior art, be construed strictly; and, not being found ill defendants' machine,hef4,. there was no infringement.
In Chancery. Well8 W. Leggett, M. D. Leggett, Wm. Wood Boyd, for defendants.
Lew Wallace, for plaintiff.
, WOODS, J. The qUElstions presented here,ex.cepting one, are the same which were recently considered and decided, and as I think correctly decided, in the case of Newark Machine 00. v. Hargett, 28 Fed. Rep. 567. The record and evidence in the two eases, it is conceded, are the stnne; but it is insisted that these defendants are shown to have infringed the device cowied by patent No.. 322,465, issued July 21, 1885, to Miller. The claims of that patent are two, and read as follows: ' "(1) A recleaning attachment for grain-separatol's, consisting, essentially, of a hopper, a screen for receiving ,the grain from the hopper, an elevator having a chamber at its lower end, and its upper end arranged to deliver the grain to the hopper, and an inclin,ed conductor having one end connected directly with the chamber of the elevator. and its upper end formed into a mouth. arranged under the discharge mO,uth of the screen to convey the tailings to the chamber of the elevator, substantially as set forth. "(2) The combination, with a separator, of a recleaning device, consisting, essentially, of a screen. an elevator for elevating the tailings to the screen, and a spout arranged directly between the screen and elevator for receiving the tailings from the screen, and discharging them into the elevator frame or casing. " If the patentability of the device described in e.ach claim be conceded, it is clear, in the light of the earlier art, that these claims must be construed strictly,-and, so construed, were not infringed by the defendants, whose recleaning attachments bave not had "a spout arranged directly between thescl'een and elevator," nor "an inclined conductor haVIng one end connected directly with the chamber of the elevator." Besides, the evidence shows, as I view it, that these devices or claims had been anticipated by the Shively recleaner. Bill dismissed for want of equity.
JEdited by Charles C. Linthicum, Esq., of the Chicago bar.