LIGOWBKY CLAY PIGEON CO. t7. PEORIA TARGET CO.
755
The order ofthe court will be that the defendants, within 30 days after notification to them of the filing of this ruling ahd of the entry of the or;. der, execute and file with the clerk of the court their bond to the complainant in the Bum of $5,000, conditioned that if the decree onhe court be against them they will fully and truly account for and pay to the complainant such damages, profits, or royalty as the court may find and decree against them by reason oftheir use of complainant's patented process pending this suit. In default of such bond the complainant's motion will, upon application, be granted.
LIGOWSKY CLAY PIGEON CO. 'D. PEORIA TARGET
Co. et ale
(Oircuit Oourt, N. D. lllinoi8. June 30, 1888.) PATENTS FOR INVENTIONS-INF1UNGEMENT-FLYING TARGETS.
Reissued patent No. 10.122. granted May 28,1882, to the Lfgowsky Clay Pigeon Company, the original being No. 231,919. granted September 7.1880, to George Llgowsky, for a flying target, the novelty whereof is in throwing tll4;g'jlt}rpm th«: trap by means of a tongue of thin metal inserted in a slot In the perIpheral rIm of a concave target, and placed in the jaws of the trap, an essential feature being the separation of the tongue from the target, is not infrinl'l'ed by a target without such tongue or slot. thrown by means of two lugs on the peripheral rim of a target similarly shaped, clasped and held by a qlampforming part of the throwing arm of the trap.
In Equity. Injunction against infringement of patent. This was a bill filed by the Ligowsky Clay Pigeon Company against the Peoria. Target Company and others, to restrain the infringement of a parent, and to have an account of past infringements. Parkinson & ParkinBon, for complainant. Coburn & Thacher., for defendants. BLODGETT, J. In this suit complainant seeks for an injunction and accounting by reason of the alleged infringement of reissued patent No. 10,122, granted to the complainant May 23, 1882, for "a flying target," the original patent, No. 231,919, having been granted September 7,1880, to George Ligowsky. The invention covered by the patent is stated to oonsist"In constructing flying targets in such a manner as to cause them to imitate more closely the flight of a bird,as soon as thl' device is projected i'rom a suitable trap or ·sender.' This result is accomplished by giVing to such targets a concave or dish orsauoer shape. whose rim is slotted to receive a tongue of thin sheet metal or other light material, which tongue is to be inserted bet}Veen the jaws of any trap capable of projecting the targ(jt in the mannl'r desired. The target, being thrown by a force thus applied near its periphery. has axial rotation imparted to it that insures the utmost accuracy of flight, wblle the concavity of the device serves to partially imprison the air as suon as the momentum of the target is spent. Consequently the target descends gradually, and is not broken in case it falls on hard ground. ... ... · The
756
FEDERAL REPORTER.
target may be composed of clay or earthenware, or any fragile material that will be readily shattered as soon as a shot comes in contact with the same; or, if preferred, the target may be coated externally with any fulminate capable of emitting more or less smoke as soon as the device is struck with a shot." It will be seen that the target d 3cribed in this specification is to be concave or saucer shaped, and made, as is stated, of clay or earthenware, or other fragile material; and ill the periphery of the lower rim there is a slot, through which a thin tongue or ear is extended· in the same plane as the lower rim of the target; the use of this tongue or ear being to hold the target upon the arm of the trap, so that it will be thrown 01' projected by the action of the spring. But the patentee says: "The tongue, E, instead of being applied to the target, may constitute part of the trap or sender, being in this case so arranged as to readily slip out of the slot, D, when said trap is sprung." The patentee further says: "I do not propose to limit myself to the exact shape or proportion herein described and illustrated, as it is evident the leading feature of my invention will be attained by any construction that will permit a dish or concave target having an aXial rotation imparted to it by the trap or sender that projects the device through the air." · Infringement is charged of the first, second, fourth, and fifth claims of the patent, which are: ' . . "(I) A flying target, concave in general form, and provided with a flat peripheral wherewith the device is applied to the jaw 01' clamp of a trap, Ilubstantially as herein described; said flat tongue being separate and distinct from the target propel', for the purpose set forth. "(2) A fragile flying tal'get, concave in general form, and provided with a flat peripheral tongue, wherewith the device is applied t.o the jaw or clamp of a trap. substantially as herein described; said flat tongue being separate and distinct from the target proper. for the purpose set forth. "(4) A concave or dish shaped flying target, composed of a suitable fragile material, and slotted at its periphery to receive a flat tongue; target having a strengthening rim. C, at the margin of its flange,·B, as and for the purpose herein described. "(5) A fiat tongue projecting from the periphery of a flying target, forthe purpose of enabling the latter to be thrown in the manner herein described; said flat tongue being separate and distinct from the target proper, as set forth." Defendant uses a dish-shaped clay target intended to be thrown from a trap like the complainant's, and in its shape and general formation very much like the complainant's, except that it contains no tongue or ear projecting from the side of the rim or peripherY, and by which it is held to the arm of the trap for throwing, and no slot in the rim for receiving the tongue of the sender. In place of such tongue or ear the defendnnt's target contains two small lugs upon the outside of the rim, by means of which a clamp forming a part of the throwing ann of the trap claspsll-nd holds the target in, position for t!).rowing. . The set up and mainly relied on, and the only one which I care toconsidel' in this case, is that of non-infringement. It will be noticed that the first and second claimsof the patent call for a flying target
LIGOWBKY CLAY PIGEON CO. V. PEORIA TARGET CO.'
757
with a "flat peripheral tonl!;ue," said flat tongue being separate and distinct from the target proper. The defendants' target contains no flat peripheral tongue, and no tongue separate and distinct from the target proper; the only difference between these two claims being that the second specifically calls for a fragile target. But the complainant insists that the defendants' target infringes these two claims, because it is charged that the fiat tongue by which the target is held to the throwing arm of the trap is made, in the defendants' device, a part of the trap, instead of a part of the target; and that, when the target is placed in position in the trap for the purpose of being projected into the air by the throwing action of the trap, the target has a fiat peripheral tongue. I do not COnCitir in this construction of complaimmt's patent, as I am quite clear that Ligowsky intended to make the fiat ::''''lripheral tongue an element of the two first claims of his patent; and while he provides that the tongue may constitute a part of the trap, yet he at the same time, ill the same clause making this provision or exception to the general structure of his device as patented, also provides that the tongue upon the trap must slip readily out of the slot in the rim of the target. In other words. it is evident,when his specifications and claims are taken together, that he intended to cover as his invention a flying target having a fiat peripheral tongue projecting from the slot in the rim of the target, and which tongue wasta be made separate from the target, and not integral with and a part of the target; or else a slot in the rim of the target through which a flat tongue fixed to the throwing arm of the trap might be inserted for the purpose of attaching the target to the trap, sci that in either case there must be a separate peripheral tongue fastened to the rim of the target. and to be grasped by the jaw of the trap, or else there must be a slot in the target into which the tongue of the trap may pass to attach the target to the trap. The fourth claim calls for a concave or dish.shaped flying target, composed of suitable fragile material, and slotted at its periphery to receive a flat tongue; and defendants' target does not infringe this claim, for the obvious reason that it is not slotted at the · periphery for the purpose of receiving any kind of tongue. The fifth .claim calls for a target with a flat tongue projecting from the periphery for the purpose of enabling the target to be thrown, which fiat tongue must be separate and distinct from the target proper as set forth; and, as already stated, the defendants' target does not contain a fiat tongue, and hence does infringe this claim. It is immaterial to inquire whether or not the patentee might have had .aclaim for a target with a plain rim, or a rim with lugs upon it, or any other device by which it could be readily attached to the throwing arm of the trap, as it is sufficient for the purposes of this case to say that he saw fit to Claim these specific devices of a target with a slotted rim, or a tongue for the purpose of attaching target with a separate it tothe arm of the thrdwing trap; and, having made his claim for such {}evices, he cannot now be allowed to cover any other and different device.. Nor can the complainant be helped in. this matter by the clause in his· ;speci6cations he states that he does not propose to limit himself
758
I,
FEDEnALREPonTEn.
to the:e:lCMhhape or proportion of his tatget as described and illustrateq, as the leading features of his invention will be attained by any tion that will permit a "concave target to be projected with an axial rotation from a trap," because he has confined himself by his claims to the specific construction set out in the claims, and cannot be allowed more than the claims fairly and clearly cover; and, having confined himself to special features of construction, he cannot have his claims so construed as to inclUde other and different features. The doctrine of equivalents, which the complainant invokes against the defendants' target in this case, does not seem to me to be in the least applicable. There is nothing in the defendants' target which is equivalent to the tongue or slot in the complainant's target. It is true that the lugs or rim upon the defendants' target aid in fastening it to the throwing ann of the trap, but the function of these lugs after an is widely different, and the mode of attaching the defendants' target to the throwing arm is different from what it is in the complainant's target. But aside from this question it is very clear from an inspection of the contents of the file wrapper of the patent-office showing the claims which were first made under this patent, and those which were finally allowed, that this patentee has restricted himself to the special form of target with the slot or tongue, as. covered by the claim, and must abide by those claims as made, and cannot be allowed such acol1struction of the patent as will in effect give the patentee the benefit of claims which the patent-office denied. The biUis therefore dismissed for want of equity.
LIGO,WSKY CLAY PIGEON Co. '11. PEORIA TARGET Co.
et al·
.(Oircuie OQure, No D. lllinQia.
June 80, 1888.)
1.
PATENTI!'FOR INVENTIONS-INFRINGEMENT-TARGET TRAPS.
The tirstclaim of letters paterlt No. 252,280, granted January 10, 1882, to George Ligowsky, for a target trap, being "the combination in a target trap of a spring lever, a rack, and an adjustable tension arm, carrying the trigger, with which latter is engaged said lever, .. is not infringed by a target trap not having such notched rack, and in which the adjustable tension is not produced by means of the tension arm, but by D).eans of a screw which operates a rod attached to the lower end of a coiled spring.
2. SAME.
The seventh claim of letters patent,No. 818.804, granted March 10, 1885, to Jacob for "the combination with the pivoted thrOWing lever,and with the coiled actuating spring, by which itis givenlts sweep, of the support or core around which said spring is coiled, flanged circumferentlaUyat its upper edge to contine thoe.adjacent coil of the spring when the lever is set," being merely for a the top of the pillar around which the spring Is coiled to keep it In place. aDd prevent it from slipping over the top of the pillar, must be supported, iht all, for the idea of making the flange mtegral with the pillar, and ]S DOt infringed by defendant's device of a flat cap screwed on the top of the pillar for the same purpose. OF CLAIM.
8.
SAME-EXTENT
Letterspatent No. 802,691, granted July 29,1884, to Benjamin Teipel, for a target trap; though not void for want of novelty, must be confined
LIGOWSKY CLAY PIGEON
CO. fl.
PE()RIA TARGET
CO.
759
to its specific devices, the proof showing very sUght differences in construction between. the Teipel trap and the ball traps patented by Warne, in June, 1880, and Stock, in February, 1884. 4. SAME.
'
5. SAME.
6.
Nor is fourth claim of the Teipel patent, which is: "In combination, the lat· erally-moving lever and the bed-piece or support and pivot, and the projec· tion on the rear end of the lever, and behind the pivot, and stationary projectionrightly located on a part of the trap other than the throwing lever. and catch .located at the rear of said standard, "-infringed by defendant; for if this claim is not substantially anticipated by the Warne patent of June, 1880, defendant's device does not contain the "catch located at the rear of the standard"called for in this claim. SA.ME.
.
Nor is the fifth claim of said patent. "the combination of the bed-piece a uniform, smooth upper surface, containing a rear projection and lever, 'etc., infringed,as defendant's device is wanting the "bed-piece having .a uniform, smooth upper surface," which is necessary in the Teipel patent to guide the throwing lever.
7. SAMljI.
Nor does defendant infringe the sixth claim of said patent: "In combina· tion, the laterally-moving lever, bed-piece, the· vertical piece, connected to llndsupporting the bed-piece and standard, the piece being pivoted near one endto said standard by a pivot. lying in a substantially horizontal plane, and . means for adjusting the inclination of the piece, and consequentlytheinclination of lever. substantially as and for the purposes specified, "-as the vertical piece is wanting in defendant's device. .Nor the tenth claim, which calls for the uniform, smooth upper surface of the bed-piece, and also the spring strained between the arm of the throwing lever and the projection upon the bed-piece, neither of which is found in defendant's device. ..
8.,SA.ME·.
9. SAME.
Nor the twelfth claim: "In combination, the laterally-moving lever, its bed· piece, standard, having foot provided with set pivot and bottom plate or founda· tionpiece, on which said foot rests and turns, substantially as and for the purpOlles specified;" nor b;V the thirteenth claim: "In combination, the laterallymoving lever, its bed-pIece, standard, having foot provided with set pivot and bottom plate or foundation piece, on which Raid. foot rests and turns, and means for adjusting the vertical inclination of the longitudinal axis of said lever, etc., "-as the foundation piece therein called for is not used in defend· ant's devic.e in any form,nor is anything used as an equivalent for it.
In Equity. Bill for infringement of patents. Parkinson &: ParkirwYn, for complainant· ..Q:lburn&: Thacher, for defendants. BLODGET'l', J. In this case the defendant is charged with infringement of three patents, as follows: .Patent No. 252,230, granted January 10, 1882, to George Ligowsky, for "a target trap;" patent No. 313,804, grantedMarch 10, 1885, to the complainant, as assignee of Jacob E. Bloom, f"r "a ball trap;" patent No. 302,691, granted July 29,1884, to Benjamin Teipel, for" a trap for.throwing targets." For brevity, these patents will be hereafter described as the Ligowskypatent, the Bloom pat-
760
FEDERAL, REPORTER.
ent, and the Teipel patent. The objeot of the Ligowsky patent, as stated in thespecifioations, is" to furnish a trap especially adapted for throwing the peculiar form of flying target described in the reissued patent No. 10,122, being the same patent considered in the preceding case, [Clo,y Pigeon Co. v. Target Co., ante, 755,] and is stated to consist essentially of a spring lever, target clamp, trigger, adjustable standard, and devices for maintaining said standard at any desired inclination. The device shown consists of a vertical standard, with means for adjusting it at any desired angle, upon which is placed a spiral spring coiled loosely around the top of the stllndard, with a throwing arm or lever projecting horizontally from the top ofthe coil; and projecting horizontally from the top of the standard, alld above the spring, is a notched, flange, or "rack," as it is called, and pivoted over this rack is a movable trigger bar, so arranged that it rests in the notches of this rack. The trap is set by bringing the lever or horizontal arm of the spring around until it is caught by the catch at the end ofthis trigger bar, where it is held until such time as the opera'tor sees fit to release it for the purpose of throwing the target. By'locating the trigger bar in the different notches of this rack; the tension of the spring can be adjusted so as to increase or diminish the projecting or throwing jorce of the trap. The patent contains five claims, but infringement is charged only as to the first, which is: "(I) The combination, ina target trap. of a spring lever, a rack, and an adjustable tension arm carrying the trigger. with which latter is engaged said lever,. as herein descriQed."
The defenses interposed are that complainant's patent is void for want ()fnovelty, and that defendants do not infringe. The defendant's trap is formed by a vertical standard, with means for adjustment at any desired angle, having at its top a bar or bed-piece, upon which there is a short vertical projection or pillar, around which a spiral spring is coiled, and from the top of which a short horizontal arm projects, to which a. bent lever, pivoted at its angle to another part of this bar or bed-piece, is hooked, and this bent lever is drawn backward until it engages with the trigger catch, where it is held until it is released at the option of the marksman for the purpose of throwing the target. It contains no notohed rack or flange, such lis is shown in the complainant's patent, and oovered by the first claim thereof; and its adjustable tension, instead of bp,ing obtained by means of the tension arm :shown in the complainant's patent) is obtained by means of a s:::rew,which operates· a rod attached to, the lower end of the coiled spring, so that by the screw the spring is tightened from its lower end. Both these devices, it is true, regulate and adjust the tension ofthe COIled spring which operates the throwing arm of the trap, but the defendant's device works on an entirely different principle from·that of the complainant. The complainant's device consists simply in carrying the lever further around, so as to tighten the coil from the top only; while the defendants' device increases the tension by tightening the coil from the bottom of the spring. It is true, both of these devices increase the tension of the coiled spring, but they do, it dif-
LIGOWSKY CLAY PIGEON CO.
V.
PEORIA TARGET CO.
761
lerentlYi and this patentee was not the first to increase the tension of a coiled spring, and hence must be limited to his own special device for increasing such tension. The defendant's device for increasing the tenis substantially the same as that shown in the Hamilsion of its ton patent of September, 1880, for a ball trap. This patentee saw fit to claim a combination consisting of thl;) spring lever, the rack, and the adjustable tension arm carrying the trigger. The defendant's device contains no rack, and, contains no adjustable tension arm which carries the trigger, and hence there cannot be said to be an infringement of this claim. rhe Bloom patent is for a target trap, or device for throwing targets, and contains several features, but the only one in controversy in this case is that covered by the seventh claim which is: "(7) The combination,'sUbstantially as described, with the pivoted throwing lever. and with the coiled actuating spring. by which it is given its sweep, of the support or core around which said spring is coiled, flanged circumfer ntially at its upper edge to confine the adjacent coil of the spring when the lever is set." Reduced to plain, unartificiallanguage, this claim is for a flange upon the top of the pillar or support around which the coiled spring which actuates the throwing arm of the target is coiled, this flange serving to keep the coil in place, and prevent the spring from slipping over or off the top of the core or pillar. The defendant's spring is also coiled around a core or pillar, and a cap is screwed upon the top of this pillar, covering the spring circumferentially, which cap undoubtedly performs the ,ganle function as the flange in the Bloom patent. The device of extending or enlarging the top of the pillar or shaft around which a rope or spring is to be coiled for the purpose of keeping the spring in its place is certainly old. We see it in the ordinary ship capstan, and in the .spools upon which thread is wound, and in nearly every machine where a ,spring or rope is coiled around a core or inner support; and if this claim of the patentean be supported at all, it must be for the idea of making the flange integral with a part of the core or column. The defendant simply fastens a cap upon the top of their pillar, so that it covers the entire top of the pillar and spring; and while I am not disposed to say that the device covered by this seventh claim may not possibly be sustained as a specific device, it certainly is not infringed by the defendant's .cap, The Teipel patent shows also a trap for throwing targets, and consists {)f a vertical standard, to which is attached a broad, horizontal bedpiece, in such manner as to be capable of adjustment to different hori.zontal angles. Upon this bed-piece is fastened a long lever, or throwing arm, by means of a pivot, so that the arm can be swung around horizontally, or at an angle to the horizon, upon the bed-piece. This lever or throwing arm bas a short arm extending backward from the pivot by which it is fastened to the bed-piece, and at a distance back of the end of this short arm is a pivot or projection upon the bed-piece, so that a strong elaS'tic loop may be affixed between the rear end of this
762
short arm of the lever and the projection upon the bed-piece. By this arrangement the throwing arm,when carried around upon the bedso that, When the throwing arm is released, piece, strains the it is carried rapidly back into its normal position, thereby projecting the target in the required direction, and with the requisite force'. Provision is also made in the specifications for substituting a spiral spring between the short arm of the lever and the projection upon the bed-piece, so that, when the lever arm is swung around upon its pivot, the spring will be strained longitudinally between the short arm of the throwing lever and the point where it is attached to the bed-piece, thus securing the requisite force for the throw of the target. The patentee says in his specifications: "A spring is connected to the rear end of the lever, and also to the bed-piece. A preferred form of this spring is one that is elastiQjn the direction of its length." And then again: "When a spiral or other spring is substituted for a rubber one, it may be con7 nected to the projections upon the end of the lever and the bed-piece." Infringement is charged of the first, second, fourth, fifth, sixth, tenth) twelfth, and thirteenth claims of this patent, which are: "(I) In a .trap for throwing targets. the combination of the lever, C, pivot. D, substantially vertical, on which the lever turns, bed or supporting piece. E. strained between that ('od. of the lever, C, which is behind the B, pivot, D. and that portion of the bed-pIece which is still farther in the rear. fOl'the purposes specified. (2) In a trap for throwing substantially as targets, the combination of the lever,C. pi vat, D, SUbstantially as described, for enabllllg the end of the lever to move in a plane substantially horizontal. bed-piece, B, holding-pivot, D. and spring, E,strained between projection.F. located on. the rear portion of said lever, C, and at the rear of the pivot, D. anlf. proje,ction, G, located on the rell,r end of said bed-piece, and behind prQo. jection. F ·.and latch. H, located at or fiear the rear projection, G. for holding the lever when set in such a position that its longitUdinal axis is nearly coincident with a straight line passing through said projection, substantially as and for the purposes specified. " "(4) In combination. the laterally-moving lever, C. and the bed-piece or support, an4 pivot, D. and the projection, F. on the rear end. of lever, C, and behind. the pivot, D, and stationary projection. G. rigidly located on a Pllftof the trap other than the thrOWing lever, and catch located at the real' of said standard, SUbstantially as and for the poses specified. (5) In a target trap, the combination of the bed-piece. B. having a uniform, smooth upper surface. containing at rear projection, G, and lever. C. pivoted to and at its under surface, resting and rotating on the said bed-piece, and prOVided with projection, F, located on the level' behind the pivot, and a spring, E, strained between said projections and latch, substantiallyas and for the purposes specified. (6) In combination, the laterallymoving lever, the vertical piece,K, connected to and supporting the bed-piece and standard, A, the piece, K, being pivoted near one end to said standard by a pivot, f. lying in a SUbstantially horizontal plane. and means for adjusting the inclinationvof the piece, K, and consequently the inclinationof lever.C. substantially as and for the purposes "(10) In. atl!orget trap, the eombinatiop of thl:' bed-piece, B, haVing a uniform. projection, G, and iever, C. pivoted smooth upper surface, containing to and at its Ilhder surface. resting and rotating on the said bed-piece, and prOVided with projection, F,located on the lever behind the pivot. and spring. E, strained between said projections and latch, and means for altering the vertical inclination of the longitUdinal axis of said tht"owing lever. C.sub-
LIGOWSKY CLAY: PIGEON' CO. V. PEOltIA TARGET CO.
763
stantially as and ,for thepurposes'speCtfied." "(12) In combinatiion, the lever. its-bed-piece, standard. A. having foot provided with set.pivot; PP',and bottom plate orfoundation piece, N. on Which said foot rests and tums, substantially as and for the purposes specified. (13) In combination. the laterally-moving lever, its bed-piece, standard. A, having foot provided with set pivot. pp /· and bottom plate or foundation piece, N, on which sajd foot rests and turns, and means for adjusting the vertical inclination of the longitudinal axis of said lever, substantially as and for the purposes specified,"
The defenses interposed are: (1) That tHis patent is void for want of novelty; (2) that defendant does not infringe. Complainant contends for a broad construction of this patent and its claims, but the proof shows that traps for throwing targets had long been known in the art before the time of this invention. A large number of devices are shown in the defendant's proof for throwing glass balls and similar projectiles for target shooting; and the complainant's proof also shows the patented device of Ligowsky of January 10, 1882, for throwing disk targets. It is apparent that the ball traps operated somewhat differently from the trap for throwing disk targets in this: that the balls were into the air in a segment of a parabolic curve, with the convexity of the curve upwards; while it is desired to project the disk targets in the segment of a curve having its convex side downwards, so as to imitate as nearly as possible the line of flight of the natural bird as it ri1\elS from the cover. The throw of the 'ball trap was, therefore, what might be called an "over-hand throw," while that of the disk trap is more in the nature of a "pitch;" hence the throwing arm of a trap for a disk target must move in a partially horizontal posi. tion, like the horizontal arm projecting from a vertical revolving shaft, for instance; the throwing arm, however, being capable of adjustment to different angles with the horizon, so as to control the direction of the as it is discharged. The Ligowsky trap, which has just been considered and passed upon in connection with this case, was organized for the special purpose of the'disk target, and seemed from the proof to be the first trap in the field for this particular purpose. It is evident that very little change was necessary to adapt the old ball trap to the purposes of a disk target trap. Indeed, I find in the proof a patent granted to Warne in June, 1880, which shows almost, if not the entire, substantial organization of the Teipel patent; the main difference being that in the normal condition of the Teipel device the bed-piece upon which the throwing lever moved was horizontal, while in the Warne the upon which the throwing lever moved was vertical; but the Teipel patent shows a provision by which the bed-piece could be tipped to an angle with the horizon, so that the lever in its throw would swing at an angle, while the Warne patent showed a device by which its bed-piece would swing, so that its lever could move horizontally, or at any desired horizontal angle. The Warne patent showed a pivoted lever with a long and short arm, having a spring attached to the short arm of the lever, and tl) anxed point upon the bed-piece, so that, when the trap was set,
764
or the throwing arm brought into the throwing position, this spring was strained longitudinally between the short ann of the lever and the point where it was fixed upon the bed-piece, in the same manner as is shown in the Teipel patent; and it is obvious that if Teipel could substitute a coiled spring in place of his elastic band, Warne could do the same with his device; and if it became desirable, by reason of the use of disks in place of balls for targets, the Warne trap was so organized that the swing of the throwing lever could be made more nearly horizontal than was shown in the original patent. It would require nothing but merely mechanical skill to make such a change; and when changed so that the lever of the Warne would rotate or swing upon a vertical, instead of a horizontal or inclined, pivot, you have substantially the Teipel device. The proof also shows the patent granted to Stock .in February, 1884, where the arrangement of the parts of the trap was almost identical with the arrangement of the Teipel members, except that Stock used no spring, but secured his projectile force by means of a cord and drum, the drum being attached to the throwing lever in such a way as that by pulling vigorously on the cord the requisite amount of force was secured for projecting the target; and it is obvious, by substituting a spring in place of the cord to rotate the drum on the Stock device, a machine almost, if not entirely, identical with the Teipel in its mode of operation and result would be entirely secured. It will thus be seen that there was little left to be covered by this inventor at the time he entered the field, and that the state of the art necessarily confines him to his specific devices. \Varne had substantially the same method of operating the lever, and a method of changing the position with reference to the horizontal line equivalent to, if not the same, as that adopted by Teipal. Indeed, so far as any of these devices are concerned with reference to the horizontal adjustment of the throwing lever, it may be said in passing that Ligowsky shows a jointed standard by which a two-way adjustment of the supporting standard could be secured, and thereby the horizontal angle of the throwing lever changed and adjusted; while the defendant's trap, like Warne's, is capable of an adjustment from a position'of the throwing arm nearly vertical to a horizontal point or below it. The defendant's trap consists of a spiral spring coiled around a projection extending upward from a bed-piece, and at the forward end of this bed-piece there is pivoted a bent lever, the short arm of which is attached to an extension from the spiral spring, while the lower end of the spiral spring is fastened·to a movable arm, threaded at one end, so that by a screw operating upon this thread the tension of the spring can be regulated. As I construe the Teipel patent, he must be confined to the use of a spring which has to be strained longitudinally between the short end of the throwing arm and the point where the spring is· attached to the bed. piece. It is true, as I have quoted from the Teipel specifications, that he speaks of "another spring," but he shows no spring other than the elastic hand, and a spiral spring operating between the point of attachment to the lever and the bed-piece; nor does he give anydirectioI;ls by which a coiled spring can be used to actuate the lever in any other
J.IGOWSKY CLAY PIGEON CO. V. PEORIA TARGET CO.
765
ner than by a longitudinal strain, and it seems to me it would require as much invention to attach a coiled spring to the Teipel trap which should actuate the throwing arm as it would to make a disk-throwing trap from the old ball trap. In other words, specific provision is made by Teipel for the use of a longitudinal contractile spring, and which may be of rubber or other elastic material, or may be a coiled wire spring, but he· makes no provision for the application of any other form of spring. It is true, probably, that other forms of spring could be adapted to the Teipel arrangement of parts, so as to actuate the throwing lever, but it would require a substantial reorganization of the members of the device as shown by Teipel in his specifications and drawings; and hence I think there can be no doubt that the true construction of the Teipel device, in the light of the state of the art, and what he describes as his operative device, requires the use of a longitudinal contractile spring. It will be noticed that all the claims of the Teipel patent which the defend ant is charged with infringing are combination claims, and with this construction of the Teipel patent I am unable to find in the first and second clarms the spring, E, strained between the end of the le:ver, C, and the point at which it is fastened to the bed-piece: as required by these claims. The fourth claim of the Teipel patent is, I think, substantiallyanticipated by the Warne patent; but, even if I am in error upon this point, the defendant's device does not contain the "catch located at the rear of the standard," which is called for by this claim; nor does it contain a bed-piece having a uniform, smooth upper surface, which is called for by the fifth claim, it being evident that Teipel intended that the throwing lever should be guided by moving upon the smooth surface of his bed-piece; nor do I find the vertical piece, K, which is called for by the sixth claim of the Teipel patent, in the defendant's device. It is true, 'the defendant has a means for adjustment of the pitch Of horizontal inclination of his throwing-lever, but it is not by the deVIce shown in the Teipel patent, and called for by the combination of the sixth claim, but it is more analogous in its mode of operation to the Warne patent. In fact, I should say that Teipel had borrowed his mode of vertical adjustment from Warne. The tenth claim calls for the uniform, smooth upper surface of the bed-piece and the spring strained between the arm 6f the throwing lever and the projection upon the bed-piece. neither of which do I find in the defendant's· device. The twelfth and thirteenth claims involve the foundation piece, N, of the Teipel patent, which I do not find is used in any form, or anything which is equivalent to it, in the defendant's device. While, there(ore, of opinion, as already said, that the Teipel patent stands upon avery llarrow footing, and, if sustained at all, it must be sustained for itsspecific devices, I prefer to put my disposition of the case upon the ground that the defendant does not infringe either of the claims as charged by the complainant. The bill is therefore dismissed for want of equity.
FEDERA·L' REPORTER "
CATCHPOLE
et cit
".PULSIFER.
«(Jircuit (JOU'!'t, N. D. Nw Yo'!'k.
August 8, 1888.) STEAM GENERATOR.
,
PATENTS FOR
Letters paient No. 122,360 for an improvement in base-burning steam generators. df. wbicb t;be distinl>uisbing feature is a centrally located coal reserdownwards mto:tbe fire-box. and protected from tbe destrucvoir tive action of the heat by a surrounding water-space connected by tubes with tbe watllr-space the fire· box, are not Infringed by defendant's device, wherein tbe reserVOIr extends to, but not into, the furnace or firebox, there being no water-jacket, surrounding tbe ·reservoir.
In Equity. Bill to restrain infringement of letters patent. a. H. Duell, for complainants. Frederick I. Allen, for defendant. COXE, J. ' The complainants' patent, No. 122,360, is for an improvement in bas&.burning steam generators. Its distinguishing feature is a centrally located coal reservoir extending downwards into the fire-box. This reservoir is protected from the destructive action of heat by a surrounding water-space at its lower extremity. Tubes connect this waterspace with the water-space .surrounding the fire-box. A constant circulation of water is thus established. The claims alleged to be infringed are as follows: "(2) The water-space, d, arouJld that portion of the coal reservoir projecting into the furnace, for the purposes set forth. "(3) The circulating tubes, e, in combination with the water-spaces, d and d', operating substantially as described. " The first claim is for the water-space surrounding the lower portion of the coal reservoir, which projects into the furnace. The description and drawings clearly show the reservoir extending into the fuel-chamber, which is expr6l'lsly called the 'i fire-box" in the specification. There is no justification for a construction which makes the claims embrace a reservoir provided with a water-jacket which is surrounded by heat simply, or by what the complainants' expert witness terms "a combustion chamber." 'fhe reservoir must extend into the fire-box. The third claim is for a combination, one element of which is the water-jacket around the projecting reservoir. It is quite clear that neither claim is infringed unless the defendant's apparatus has this element. His reservoir extends but not into, the furnace. He has no water-jacket surrounding the reservoir within the fire-box, to protect the reservoirfrom destruction by heat. Located as it is, it needs no such protection. The spaces which the complainants seek to include in the defendant's fire-box are no more a part of it than the fire-tubes shown in the drawings are a part of their fire-box. As the defendant does not infringe, the bill must be dismissed, with costs.