BOBBINS tI. ,COLUMBUS \'tA'1'CH 00.
I do not, see how this reissue can affect the issues in this suit, or protect the defendant in the manufacture or sale of such watches as are .hown in evidence to be the product of the defendant company. The Ipecifications, as amended by the reissue, show how a lever.set watch may be constructed tiS one form of the Sheridan device, but, as defendants' right to make a lever·set watch is not in question here, it does not seem necassary to consider or pRSS upon this feature of the case. A decree may therefore be entered, finding that defendant the Illinois Watch Company has infringed the claims of th e Church patent, as charged, and that complainant is entitled to' an injunction and accounting, and that the bill be dismissed for want of equity as to the Colby patent, on the ground of non-infringement, and also dismissing the bill for want of equity as to the individual defendants Jacob BUDD, George A. Bates, IIIld George C. Gubbins.
RoBBINS
et al.
fl. CoLUMBUS WATCH
Co. tJ aI.
(Circuit Court. B. D. OMo. E. D. May 7, 1899.) No. 506.
L
PATI!INTB POB INVBNTIONS-RE18SUB-ExP>vATON OP CLAIMS-WATCBl!I8.
In reissued patent No. 10,631. granted August', 1885, to Robbins and Avery, claim 1 was as follows: "As an improvement in stem winding and setting watches, a winding and bands-sEltting train, which is adapted to be placed in engagement with the winding wbeel or the dial wbeels by the longitudinal movement of.a stem arbor that has no positive connection with said train, sUbstantially as and for the purposes specified." Tbe first clailli of tbe original patent was for tbe same, with the additional condition that the train is norm.ally in witb the setting wbeels. HeW, that tbe objection that the claims of the reissue are broader and more comprehensive tban the original is obviated by the clause "substantially as and for the purpose specified, "which relates back to tbe ,original specifications and drawings, and brings them into the claims. RobMn. v· .Aurora Watch 00.,43 Fed. Rep. 526, followed.
I.
SAMB.
And hence claim 8, which is for "a winding- and hands-setting train, which I. adapted to be placed in engagement with the winding wheel or the dial wheels by the longitudinal movement of a stem arbor, and is normally in engagement with such dial wheels, substantially as and for the purpose set forth... is not objectionable for expansion on the ground tbat the corresponding claim of the originllol adds the condition that the w.inding arbor Is witbout positive connection. Robbins v. .Aurora Watch 00., 43 Fed. Rep. 526, followed. These claims are not objectionable as being claims for results or functions ratlier than for devices, for the concluding phrase relates back and includes in them the devices shown by the specifications and drawings of the original patent. RobMns v. Auroral'Vatch 00., 43 Fed. Rep. 526, followed.
8.
SAME-CLAIMS FOB RESULTS.
"
&liB-ANTICIPATION-WATCH WINDING AND SETTING MECHANJSM.
Reissued patent No. 10,631, August', 1885, to Robbins and Avery, trustees, under mesne assignments from the inventor, Church, for an improvement in stem winding and setting watches, embodied the following elements: A winding and setting train, mechanically unconnected to a short stem arbor,capable of winding and setting the watch by its rotation; also adapted to be pushed Into winding engagement by the inward movement of the stem arbor, and automatically shifting to the Betting engagement whenever the stem arbor is withdrawn from its winding position. Held, that this was not anticipated by a one Wheeler for a lever set movement, with a train shifted by means of a lever or finger bar from the winding to the setting engagement, which train, however, cannot be shifted by a longitudinal movement by the "tem arbor, for its arbor has no such movement, and no relation to the train by which such a movement could produce the desired result.. V .50F.UO. 7-35
-Jl'EPEftAJ; BEl!OBTEB,
vol. 50.: \' ' ,'.' . ' " ','
":""e1t.r, ,18, 'inft-inge,,d b,Y, a,l!lte,DlJletting an,a,w"i,niling movement, used 'by defendant,the Watc:tJ.i are either the same or the mechanlcal ,;rf
,
Thill Ileill!lue to Robblnlll;lnd Avery, being valid, and covering a patentable nov·
,I,. ""
., ' ,,' ,,' "",.", , ' det$ndallts1ilOld"tMir in'frinldlIK' movements for use in a watch case of . , ,whIch »laintiffs 0Wl/-ed, j;he p/,tell1;, it, i'lidn(lt thereby become an infringel' ofthf) ; the ewes were tbade to perSons licensed by plaintiffs to manufacture Buchcase. \ i ' , "
, 'equt"lillmts of those onhe patent.
, In Equity, ,Bill b" Royal E. Robbins and Thoma$ M. Avery, trustees"agAinst the Columbus Watch Company, David Green, and William J,. for infl'in.gement of patents. Decree for complainants as to .and ;for as' to the other. RU8Sef,l" for complainants. M. D. Leggett and Watson, Burr « Livesey, for defendants. SAGE, District Judge. the infringement of two patents, as follows: (1) Reissued patent No. 10,631, for stem-winding watch, issued August 4, 1885, on application filed March 14, 1885, to Thomas },L Avery, trustees, under'mesne assignRoyal E. RoQbins ments from D. H. Church, the inventor. (2) Patent No. 287,001, to C. K. Colby, for watch pendant, issued October 23, 1883, upon application filed February 1,1883. Reissueq.patent No. 10,631 , is for certain devices used in stem-wind;. ingwatehes, and relates Dime particularly to structures in which the wiIiQii;1gand hands-setting mechao,ism is operated by means ofa stem arbor.. It 1s set forth in the specification that prior to the improvement windiqg and hands-setting train had been normally in engagement with the winding wheel, and disconnected from the dial wheels, so that an6utward mQveplellt of th¢stem arbor was necessary in order to change the ellgagementof the train, and adapt it for setting the hands. Intha.t construction a positive connection between the stem arbor and the winding and train was requisite, else the arbor when drawn outwardly wouldnpt effect the change in. the engagement of the train from to settingj and this positiv:e connection made the stem atbor virtually apll,rtof the movement. ' It resulted that it was difficult and expensive ,to change the movement from one case to another. One object of the improvement is, as it is set forth in the specification, to render watch movements interchangeable. The drawings show a winding wheel, C, and a hands-setting wheel, D. An oscillating yoke, pivoted on the axis of a cogwheel, F, and having at each end a cogwheel, one designated as G and the other as H, when swung in one direction, brings the wheel G into ,engagement with the winding wheel, C, and, swung in the opposite direction, brings the wheel, H, into engagement with the dial or hands-setting wheel, D. L is a crown wheel, always in with the middle wheel, F, the yoke train. It is mounted on a hollow arbor, which presents at the edge of the watch movement an open end. squared, so as to be rotated by the square end of the stem arbor, M. The hole in the hollow arbor of the crown wheel extends
or
ROBBINS 'V. COLUMBUS WATCH CO.
547
through thewheel,and in the inner portion of this wheel is located a longitudinally movable stud or blOck, N. A rotabltj arbor, I,carries two lateral arms, it andiS, in position to beat on opposite ends of the yoke, E, and is provided with two' arms, 'i imd '/,'2, . beneath the front plate of the movement, but indicated in the drawings by dotted lineil. A spring,K, bears aga.inst the arm i, and through said arm rotates the arbar, and causes the arm it to bear against ,the adjacent end of the yoke, E, thereby bringing the wheel, H, intd with the dial whee], D. The stem arbor is n6tattached ta---that is to say, has no positive with-the winding and hands-setting train. When "moved longitlldinally to the inner limit of its motion," or, in other words, pusbed in, it causes the traill to be disengaged from the dial wheel and' engaged with the winding wheeljand when pulled out, or, in the phrase of the specification, "moved longitudinally to the outer limit Of its motion," it is drawn away from the' trail), which thereupon automatically assumes the position which t:>ringsthe wheel, H, into engagement with the dial wheel, D. This is the normal engagement of the train, and it is actuated by the spring, K. The arm, i J , extends in the path of the movable or stud, N, so that, when N is pushed inward, the arbor, I, is turned in the opposite direction, thereby causing the arm, to bear against the opposite end of the yoke, and bring the wheel into engagement with the winding wheel, 0, at the same time withdrawing the wheel H from engagement with the dial wheel, D. In other words, the pushing in of the stem arbor, M, and thereby also the stud or block, N, and the arm, shifts, by the means above described, the train from its normal engagement with the handscsetting wheel into the forced engagement with the winding wheel. All the parts above mentioned, excepting the stem arbor, M, belong entirel v tothe watch movement or" works.» The stem arbor is mounted in the 'stem or pendant, which is a ]Jart of the case, and it is held in its different positions by yielding springs, which it is not necessary t{) particularly 'describe. . The squared inner end of the stem arbor projects inwardly a short,distance beyond the circle of the case, and is inserted in the outer end of the hollow arbor of the crown wheel, L. The method of winding and setting when the engagements have been properly made is substantially as in other stem-winding watches. The movement or works may be removed from the case by turning the retaining screws to their proper positions for that purpose, then tilting the movement out at the side opposite the stem, drawing it away' from the stem, and lifting it out. To insert it into the same or another similar case, the edge of the movement at which is located the open crown wheel arbor is lowered to a position opposite the stem arbor, and the movement is then pushed along towards the stem, so as to insert the stern arbor into the hollow hub of the crown wheel, L. The opposioo edge of the movement is then lowered into position in the case, and the retaining screws so turned as to hold it. It is contended for the complainants that spring arm, which extends from the upper end of the arbor, I, to or near the end of the yoke, which
.548
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caftiea the wheel, G. so the puahing effect of the arbor upon the yoke as to prevent undue violence otinjury to the gears, the spring being soUght and as by it;s :yielding to render impossible any of the teeth violent enough to ,cause injury. The "claims are as "follows: .'0'"(I) :As an improvement in SVlm winding and setting watches, a winding and hands-setting train, which is adapted .to be placed in engagement with the win4ingwheel or. the dial wheels by the longitudinal movement ofa stem arbqr that, bas no positive connection with said train, substantially as and for the pmposespecified. "(2t)Aa: an improvement in stem wlndtng and setting watches, a winding andhanrls.setting train, which is adapted to be placed in engagement with the winding wheel or the dial wheels, and is normally in engagement with said substantially a,8 and for the purpose shown. an improvement in stem winding and setting watches, a winding and hands.setting train, which is ad,apted to be placed in engagement with the winding wheel or the dilll wheels by the longitudinal p:1ovement of a stem arbor, and'is normally in engagement With said dial wheels, substantially as and for tbeptlrp08e set forth. "(4) improvement in stem winding and setting watches, a Winding and train which is normally in engagement with the dial wheels, in cQmpinati9nwith a rotable stem arbor that has no positi ve connection with said traiu1 and is adapted to be movl!d longitudinally Within the case stem, to cause Said Winding and hands-setting ,train to engage with the winding wheel, and to 'be simultaneously disengaged from said dial wheels, substantially as and,for the pUl'poseshown and described. "(5) As an improvement In stem winding and setting watches, a winding and handiil-setting, traIn, whIch is normally in engagement with the dial wheels,iJ;l with a rotable longitudinally movable.stem arbor that has no positive connection' with the watch movement, and when woved longitudinally to the inner Hmit .of its motion will cause said winding and setting train to be' disengaged from said dial wheels and engaged with the winding wheel, and when 'moved longitudinally to the outer limit of its motion ,will permit aaid train to be disengaged from said winding wheel and engaged with. said dial llubstantially as and for the purpose specified. "(ti) As an improvement in ,stem winding and settiIi.g watches, the com· binatio ll of a winding and hl".nds-setting train, which Is normally in engagement. with the dial wheels, a stem arbor, having no positive connection with said train, and an intermediate device, which is adapted to communicate the longitudi'nal inward movement of said stem arbor to saId winding train, and cause the same to engage with the winding wheel, substantially as and for the purpose shown and described." \
It is conceded that the second claim is not in issue in this cause, and it need not be further considered. , The Colby invention relates to devices for the retention of stem arbors in the stems or pendants watch cases, and at the same time allowing the arbors to be rotated and longitudinally moved in the stem. The first claim. of tpepatent, which sets forth the essential features of the invention. is.88 follows: "The combination in a stem-Winding watch, of the tubular stem, a key mounted to rotate in said stem, and to project into the movement and engage the winding arbor, as shOWn, a spring attached tooneo! these parts, and ar-
of
<:
'
ROBBINS'll. COLUMBUS WATCH CO.
549
ranged to engage the other part to form a latch device, as shown, and the said winding arbor, all arranged substantially as and for the purposes set forth."
The key referred to in the claim is the stem arbor. The winding arbor is part of the watch movement with which the stern arbor by its rotation directly engages in winding the watch. The special feature of improvement set forth in this patent is the location of a spring for engaging the key or stem arbor with and within the stem. The spring latch device permits the rotation of the stem arbor for winding or setting the watch, and also permits it to be partly withdrawn, longitudinally, from the winding arbor. The patent also provides for two set;;; of grooves or corresponding projections, forming, to quote from claim 3, "an elastic device, whereby the key may be held in either of two positions in the stem." It is not necessary to set forth the second and third claims of this patent, nor to enter more particularly into the details of the construction of the patented device. The defenses asto the Church reissue, No. 10,631, are, stating them in the oruel:" in which they will be considered, as That the reissue was improperlYE1:ranted, in that the original letters patent were not inoperative or invalid by reason of such defective or insufficient specification as could be corrected by reissue; that they were not surrendered to correct any error which had arisen by inadvertence, accident, or mistake; that new matter, not constituting allY substantial part of the alleged invention for which the original letters patent were granted, was introduced into the specification and claims of the reissue; that between the date of the original letters and the date of the application for the rlilissue certain inventions were made and devices brought into use that were not covered by the claims ofthe original, but were sought to be covered by and subordinated to the claims of the reiss'ue; that the claims of the re. issue do not particularly point out and distinctly claim the part improvement or combination which Church claimed as his invention, but merely specify results or functions, and not devices. The original patent has but four claims; the reissued patent has six. Referring to the testimony . of the defendant's expert, it appears that the objection that the first, second, and third claims of the reissued patent are additional to, and broader and more comprehensive than, any claim of the original patent, is founded upon a verbal criticism of the language of the claims which is altogether too narrow and technical; as, for illustration, that the first claim in the reissued patent specifies as new a winding and hands-setting train, shifted by the longitudinal movement of the winding arbor without positive connection, whereas the claim in the original patent was for the same, only coupled with the additional condition that the train is normally in gear with the setting wheels; and passing by what is said of the second claim, because that claim is not involved in this suit, that the third claim in the reissued patent specifies as new a winding and setting train, shifted by the longitudinal movement of the winding arbor, and normally in gear with the setting wheels, whereas the original patent
\550
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REPORTEB.
voI: 50.
lclaimt the Slime only' when' ooupledwiththe additional, condition that
'tlfe'windmlfarb'or is without ,; . ", . A$ these objections,andtheflJ:l'ther objection that the claims of the patentspe.cifyresnltsor functions, and not devices, it is only refer to the.decision by JudgeBLODGETT sustaining the patent sueq q,n:inthis case, in Rdbbina v.Aurora Watch Co., 43 Fed. Rep., at he calls attention to the rule;that claims must be so conif possible, to uphold a patent; and that in the light of this ruletbe.first claim of the reissued patent:cannot be held to refer to any kind Qfa winding or hands-setting train, but must be limited to such a in the specification and drawings of the patent. Ali one, as:is .·Juqge BMr>GETT well says: "This explanation applies to all the claims, if they are to be read in the in which their language is capable of being understood. Then to that they are claims for results. and not they are for devices. But the words ·substantially as and fOl' the purpose shown' take us back t.o the specilication and drawings. and bring the device there shown ;into·· the claims. and I construe the 'claim as for the device there shown. Therefore, while these claims are broad, I think theY can be sustained as for the ,dElvices .which are described. Gorrt',Planter Patent. 23 Wall, 218." Judge BLODGETT, in the same paragraph, says thatadapted to be put into winding and setting engagement by a longitudinal movement of the Btemarbot,which has no positive connection with the train, then it would manifestly be anticipated by the Woerdand Carnahan patents, and perhaps othl'r Inventors. who show winding and setting trains adapted to be placed in winding and setting engagements \'y endwise movement of the stem arbors. that have no positive connection with suchtrainll." . "If the claim is held to mean any Winding and setting
But, under the construction and limitations which he properly applies, the alleged anticipation's fail, as do also the Varney patent, applied for January 12, 1885, and dated August 11, 1885, and the Corliss patent, applied for June 18, 1885, and dated September 1, 1885, which are the inventions claimed to have been -made and devices brought into use between the date of the originnl and the date of the application for the reissued patent, and not covered hy the claims of the original, but' sought to be covered by and subordinated to the claims of the reissue. The testimony ofthe defendants' expert is sufficient to establish that the fourth and sixth claims of the reissue are not void for expansion, and that the fifth claim of the reissued patent is not broader than the first in the original patent, which appears as the fourth in the reissue. Construing the claims with the limitations above specified, they are not anticipated by those patents, nor by the Vent patent. No. 318,329, dated May 19,1885, or the Galentine patent, No. 314,288, dated March 24, 1885. The objections to the validity of the reissue are not well founded, and they are overruled, This brings us to the defenses that the patent is void for want of novelty, the claims being anticipated by various patents; that it does not disclose any patentable invention, the alleged improvements being
RO;JJBINS .". COLUMBUe WATCR co.
551
the product of mechanical skil1;a.nd that the combinatiocs shown in the, various claims are mere aggregations of mechanical features, which perform only the functionl'! they parformed ih older combinations. In considering the defense of anticipation,the limited construction given to the claims in Robbin8 v. Aurora Watch Co. will be followed. Of the patents cited on behalf of defendants in support of the defenses above specified, the following were considered in Robbim v. Aurora Watch Co., the English patent to Nicole, and the United States patents to Lehman, Carnahan, Woerd, Brez, Fitch, and Eisen. In the opinion in Robbins v. Aurora Watch Co. it was pointed out that in the Nicole patent, the Lehman patent,theCarnahan patent, and the Woerd potent the stem arbor had a p0/:1itive connection with the winding al}dthe setting trains, and that the winding and hands-setting engagements, were effected QJ the pull anq push of a longitudinally moving while Churqh was the first in the art to interpose springs would. bring about the engagements which by their yielding without the possibility of such collision of the teeth.of the wheels as to cause injury. The Cl;lUrch patent, as set forth in the specification and claims, contains the following elements: Awinding and setting train, mechanically unconnected to a short stem arbor, capable of winding and setting the watch by its rotation; also adapted to be' pushed into winding engagement by the inward movement·of the stem arbor, and automatically, shifting to the setting engagement whenever the stem arbor is withdrawn' from its winding position. To sustain the defense of anticipation, there. fore, there must be found in the prior art some one patent or watch containing all these elements. The defendants' expert, upon cross-examination, admits that they are all to be found in the complainants' patent. and that the combination above set forth is not to be found in anyone prior watch. Several patents are shown, exhibiting a stem arbor, sliding to shift the engagements, and rotating to wind or s(:t the watch. but of the eutire list only two, the Woerd and the Eisen, have short stem arbors unattached to any portion of the watch movement. Both these patents, however, have the normal winding engagement., The Wheeler patent, upon which much stress was laid by counsel for the defendants, and which was not referred to in the opinion in Robbins v. Aurora Watch Co., although in evidence in that case as illustrating the prior art, is for a lever set movement. It shows an oscillating yoke, at one end of which is a spring, N, and at the other a pivoted pawl, against which, when the lever is drawn out, a spring, H, by its pressure forces the opposite end, E, of the yoke in, and brings the movement into hands-setting engagement, which is the normal engagement. There is in evidence also an exhibit, showing the Wheeler and Colby patents combined, by removing the lever, and adapting the movement to the Colby arbor, thus furnishing an excellent illustration of how easily what the inventor did could have been done earlier, if only the light which first dawned on him had come to those who preceded, but did not an-
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ltieipate, him. The Wheeler movement, being fora lever-set watch, does not contain the features of construction which. distinguish a stemsat, watch. When placed in a case suitable for it, its train cannot be shifted by a longitudinal movement of the stem arbor, because the stem ;arbor has no longitudigrtlmovement for this purpose, and no relation to the train by which such a movement could produce this result. Spring, N; bears against the end, D, of the yoke, and by its pressure, when the lever is pushed in, brings the yoke train into winding engagement and holds it-there. The withdrawal or out-pull of the lever releases the pivoted pawl or dog, G, which is thereupon swung to the left by the pressure of'spring, H, which is stronger than and overcomes the opposite pressure of spring, N, and by a cam action of the pawl. G. on the end, El'of the y0ke,swings the yoke into hand8-'setting engagement. the spring, N, not perceptibly limiting or retarding, but in fact cushioning, this movement. The lever, or, as it is termed in the Wheeler patent. the "finger bar." ianot a stem arbor, nor has it the movement or function of a stem arbor. Its office is, exclusively, to shift the train. Without the conception embodied in the Church patent, the Wheeler movement never could have been adapted to a stem-set watch. To reorganize or make anew adaptation of an old device by the aid or in the light of the conception ofasubsequent patented invention, and then insist that it is an anticipation, is, in effect, to attempt to appropriate, as common property, the conception, which is always-excepting, possibly, in some . cases of unlooked for or 'accidental discovery-the genesis of the inven-tion, audis within the protection of the patent as completely as the embodiment itself. If it were not so, there would be but little left of the lawoi equivalents. Of the other patents cited as anticipations it is not necessary to speak in detail. The defendants' expert testifies that the closest approximation to the Church watch is to be found in the Woerd watch, which was held in Rdbbins v. Aurora Watch (Jo. not to be an anticipation. lndependently of the rule of judicial comity,-to which, however, I give full and hearty recognition,---l am not in the least disposed to dissent or depart from· that holding. The th!'ee important advantages claimed for the complainants' patent are--First, the winding and setting. and the winding and setting engagements, both effected through a stem arbor; second, a watch movement removable from the case, and interchangeable, without taking it apart; third, effecting and shifting the engagements without disturbing the hands or injuring the wheel gears. Winding and setting, and winding and setting engagements, effected through a stem arbor. are shown in patents prior to Church's, as are also movements which may be taken out entire from the watch case. But the defendants insist that the advantage of. effecting and shifting the engagements without disturbing the hands or injuring the hands-setting gears is neither claimed nor mentioned in the letters patent, and that, as a matter of fact, there is not the slightest danger of any injury to the wheels, and that there is therefore no need of protection, and none af-
ROBBINS
v.
COLUMBUS WATCH CO.
553
forded by Church's device. In support of this statement of fact defend· ants refer to the depositions of a number of experienced watch makers and repairers, who concur in testimony that they have never known of the dial wheels of a lever set watch being injured in effecting the setting engagement, and that there is practically no danger of causing such injury in effecting such engagement in the pendant set watch, with a positive connection, because of the necessary loose placing of aU the stemwinding wheels, and because the teeth or cogs are rounded on both sides to a point, and the spaces between them wider than the thickness of a tooth; and for the further reasons that the wheels must have some play to make the operation of setting and winding possible and easy, and that the distance of the pull of the stem arbor is so limited that the train cannot be moved any further than is necessary for proper gearing; also, that if the wheels should not mesh properly or fully the teeth would collide upon the rounded parts, and, as the wheels are loose, there would be a giving away, so as to allow them to slip into place every time. One of the witnesses, however, testified that the small gears of the setting wheels were sometimes injured, but he gave an explanation referring it to another cause. There is no direct testimony in conflict with that cited above, but there is evidence in the record which is relied upon to break its force. It is now more than eight and a half years since the granting of the original patent to Church's assignee, and more than six and a half since the reissue. It appears from the testimony for the complainants that the Elgin Watch Company makes 98 per cent. of its open-faced watches pendant set, with the Church improvement, and the Waltham Watch Company makes its entire open face product pendant set, with the Church improvement. These are two of the largest watch manulacturing companies in the United States. Most of the wit. nesses called by the defendants who testified as above also expressed the opinion that the complainants' movement is no better than the oldfashioned lever set movement, which has been almost superseded. It would hardly follow, if the court should adopt their view, that it must, to be consistent, hold all patents for pendant sets invalid. As to the testimony of the witnesses, skilled and credible though they may be, that there is no practical advantage in the spring attachments of the complainants' patent, it is more than counterbalanced by the testimony relating to the manufacture and sales. The general recognition by manufacturers, including the defendants, and by the trade, of the value of the springs, dating back to the days of the lever set watches, justifies the conclusion that the daily shifting of the yoke train by the push and pull of the stem arbor, with no spring to modify or limit its force, even if it would not bend or break the teeth of the gearing wheels, must, by the constant succession of shocks or jars, or by some other means, tend to injure or wear, or shorten the life or impair the accuracy of, the delicate mechanism of the works; whereas, by the interposition of the springs, every movement of the train is so graduated and cushioned that no shock or injury is possible, and the wear is reduced to the minimum. The objection that none of these
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a:dva.ntates are 'either claimed· or in the' leUiers patentis not tenable.) ,The construation is shown and claimed, and that the patentee is entitled to 811 the adya.Dtages which that construction affords, although not specified, or even, known to the inventor, is too well settled to need verification or to be disputed. The:cQlnpll1:inants' device is by no means a mere aggregation. It is a combination, in which the elements are in new relation to each other; and so cfl-operate as to practically perfect the pendant set watch, by removing the disadvantages before then attendant upon the use of the stem arbor to shift the engagements. The objections made to the claims seriatim need not be considered in detail. They rest largely upon the broad construction of their language, which counsel for ,the defendants seek to apply,but they fail, under the construction ofthe claims given by Judge BLODGETT in Robbins v. Aurora Watch Co., hereinbefore approved and followed, and in the later case of Robbins v. Illinois Watch 50 Fed. Rep. 542, in which his opinion was filed January 4, 1892. ,Wecoine now to thElquestion of infringement. The movements made and sold by the defendants are adapted to the Colby Case. The winding and setting train shows two intermeshing wheels, mounted on a vibratingyoke, the axis of vibration being the axis ofone of said wheels, which is in constant 'engagement with the wheel or pinion which is engaged by the stem arbor. The second wheel is swung by the movements of the yoke either into engagement with the winding wheel or into engagement with the setting wheel. The form of the yoke plate differs, but not essentially, from that of the Church patent. For the purpose of swinging the yoke train into hands-setting engagement, a spring is employed at the right hand of the movement,-the side at which the spring, K, is located in the Church movement,-and bearing at its free end against a smaller plate at the right hand of the yoke. This plate vibrates ona pivot, and acts as a cam lever upon a projection of the ypkeplate. 'The yoke plate is also acted upon by a less powerful spring at its left-hand side, tending to swing it into winding engagement,but, when both are free to act, it is overcome bythe spring at the right, and the yoke train is swung into its normal or hands-setting engagement. The movement also contains a lever pivoted between its ends and provided at one end with a stud, which projects loosely into the hollow of the initial train wheel corresponding to crown wheel, L, in the Church patent, said stud corresponding functionally to block or stud, . N. This lever vibrates under the inward movement of the stem arbor, and causes the cam plate to vibrate against the force of the spring corresponding to spring K, and so turns the cam plate that the yoke is free to swing into winding engagement under the pressure of the weaker spring at the left, which performs the office of spring, is, in the Church patent. ,:Tbe withdrawal of the stem arbor leaves the springs free to act, with the result of bringing the train' into hands-setting engagement, as already state:d. In all these particUlars the mode of operation is the same as thatofthe OHuroh movement. The engagement springs are, it
Co.,
ROWSlNS t1. COLUMBUS WATCH CO.
555
is true, differently arranged, but there is no material difference. The movements are substantially alike. The mechanical combinations correspond, element for element, and, comparing the elements, they are, in every instance, either the same in both, or the mechanical equivalenfB of each other. It must be held, therefore, that the defendants' movement is an infringement of the 1st, 3d, 4th, 5th, and 6th claims of the Church patent. The only remaining question is whether the defendants infringe the Colby patent. Thattheir'watch movements were made and sold for use in connection with watch cases and pendants and winding stems, which have been licensed by complainants under the Colby patent, is a fact stipulated in this cause, as are also the facts that the defendant company makes only watch movements, and that it has not, nor have either of the individual defendants, ever made or sold watch cases, nor stem or pendants. Counsel for complainants argue that the fact that the watch cases are made under licenses, and are everywhere on sale, cuts no figure, for the reason that the license only releases the cases manufactnred under it from the control of the patent, and makes them free to the public, just as the hammock and ropes were in Trat'crs v. Beyer, 26 Fed. Rep. 450, the lamp chimney in Wallace v. Holmes, 9 Blatchf. 65, and the syrups and mineral waters in BifWker v. Dows, 3 Ban. & A. 518. The distinction between those cases and this case was clearly pointed out by Judge SHEPLEY in Saxe v. Hammond, Holmes, 458, where he said that, if all the other conditions were on the si<.1e of infringement, there must be the additional element of a sale for use by an unlicensed manufacturer, which was not proven in that case, and is negatived by the stipulation in this case. The true rule was stated in that case as follows: .. Di tferent parties may all infringe by respectively making or selling, each of them, une of tile elements of a patelltpd coml,inalion. vrovidl'd those separate elements are made for the purpOSe and with tile intent of their being combined by a party haVing no right to combine them." In Alabastine Co. v. Fayne, 27 Fed. Rep. 559, it was held that the sale of a compound which could not be practically applied without making the user an infringer, and therefore trespasser, rendered the defendant an accessory to the infringement. But here the principal is the licensee of the Colby patent, and no trespasser, and there is no infringement of that patent to which defendants could be parties, or. as the court expressed it in that case, accessories. It might as well be claimed that the defendants, by selling their movements to the complainants themselves, the owners of the Colby patent, were guilty of the infringement of that patent. . The decree will be for the complainants upon the Church patent, and for the defendants upon the Colby patent.
556
PJ>ERAL REPORTER ,voL' 50.
THE ANNIE HALL (DI.Btr!ct
R.
LEWlB.
et ale ".
SHBPPARD
ec
ale
Court. D. Mcu.aMm6tt&
May 50, 1892.)
No.8L WIUBVEll Al'lD WIlABPINGl!IBll,....()BSTBUOTION-LUllILITT OJ' Wll:ABPINGBB.
,A schooner drawing llfeet 8 inches, loaded with'coalowned by and consigned to the. respondents underabill of lading guarantying to her generally 12 feet of water, arnved at respondents' dook. One of the respondents was present at the schooner's arrival, but said nothing 1;0 the master. The latter was unacquainted with the obstructions and the tides at the place. The schooner struck a ledge of rock on which at average tides the water was 12 feet deep; Respondents did not own the bed of the r.ve.r,but dredged it, and occupied and used the wharf to berth vessels. Hel,d" that the master had a right to rely on the respondent who was. present, and his si, lenOe. BlIlounted to aD expresslnvitation to enter. Hel,d" therefore, that respondents were liable.
, InAdrniralty. Libel by Samuel P. Hall and others against Joel F. apd others for damages occasioned by stranding at respondents\ Wharf., Decree for libelants. Edwa.rd, S. Dodge, for libelants. Cunningham, for respondents. ,NEUlON, District Judge. This is a libel in per80nam by the owners of the Annie R. Lewis for injuries sustained by the schooner in ehterii),gthe respondents' dock. The respondents are coal dealers, and own' a wharf on Monatiquot river, in East Braintree, at the head where they receive the delivery of cargoes of coal from vessels. On the early morning of June 22, 1886, the Annie R. Lewis, from Port J()hpson, arrived in the river below the wharf, in charge of a pilot an'd'atoW'b()at, having on board a cargo of 355 tons of coal consigned to and Qwneq by the respondtmts, to be unloaded on the wharf. The bill of lading 'guaranteed 12 feet of water. The draft of the schooner was 11 feet ipches aft. In the bottom of the river a ledge of rocks extended frorn.the,lower end of the wharf, across the channel, to the opposite bank. On I1verage tides the depth of water on the rock was 12 feet, but when the tides, ,lun low the depth was not sufficient to float vessels drawing 11 feet 8 inclles. This was known to th!"respondents. ,The master of the B,choonei was unacquainted with the obstructions in'the channel, and also "i'ith the run of the tides in the river. The tide on this morning was l'owe:( the a"erage. One of the respondents was present on the wharf; time, what was going Qn. The channel was aoolit 50'feet wide. While the tug was attempting to haul the schooner , in,to her the wharf, where the coal was to be unloaded, the tide oemg then at its full height, she grounded on the ledge,apd sustained injury. The respondents claim that the attempt to enter was made after the tide had ebbed considerably; also that the guaranty in the bill of lading extended only to average tides. Reference was made to the tide tables at Boston, to show that the tide was on the ebb. But tides in this narrow and crooked river, so far above the sea, must vary