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,L 1;'4nN'l'8C'p.; The first and thira claims of letters patent No. 880,346, Issue(l AIml 8, 1888. to WillisJ. Perkins, for improvements in shingle sawing machines, whil!h claims are for, the of a sllingle maQhine with a IE\vel:, ,ftllcr:umed near the 'centra1i1baft, so'that shaft and carriage may bli lifted so as, toper'wit-access to the saws, and 'hlliving a'catch piece to lock t.helever.in position, void for want of novelty., " : ' : . . S. . , Tbe4th; 5th; and 45th claims of said patent, for' the combinatiOn of the Totating carrillge of a shingle ,machilile'with a dog,near the peripheliY, of the carriage, ,so !\rranged that the p.ogsecures and maintains ,a firm hold on.th!l. of 'While it is being sawed, grasping and'releasing the block atprecl!lely the nght time to lusnro the sawing. of, the shingle s,nd the drollping ot.the block 'for the next " .. operation, were not a'!lticipated by,pr!lvioulil patents. ' .
'If.
'The 80th, aild 81st. cillims ·of said patentifor a spalting device consisting of two trlioCklil capable ,oroMning or moving while the block of wood is resting on them, so as to drop the block when it is desired to saw no more , shingles out of it; were not anticipated, by previous patentS; forty-tllird claim of said patent, for the combination with a saw carriage of a wooden block furnishing a bearing for the same, and an oU.retaining trough in which the,blockis seated,'s not void for want.of patentsbleinvention,the blocb formerly , in, ulle being ,of iron. " , '
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'-, SAME-<,. P ATE.NTAlJILITy-I:NVENTION.
In Equity"., .:Bill by ,Willis J. Perkins against the Interior Lumber Company, (Jhi;\rles 1\.', Street, Wayne ':B. Chatfield, and Frederick A. Keep for alld acpounting. .. .', ' O!Jield.,TdWlll,& (l'aggard &: Denni,son, for complainant. Winkler, Flanders, Smith, Bottu,'m! & Vilas, for defen.dants. g G.RESJlAM ;:, q.rp\lit. JUfl , a.This. '. .. suit for inrr.ingement of letters patent No. 380j346; granted to the complainant, 3, 1888, for new a.nd useful hnprovements, in shingle.. Sll.wing machint's. The ,relates more particulf\rly tp macpilles of the character which have a rotary carriltgecarryit;lg a.,plurality Qf shingle bolts or blocks, and saws which cut the shingles :from the blopk. "The object of the invention," ,$tl.ys the specification, II il;l to imprQye the working parts of a machine of the character described; and the invention ,consists in improvements in the carriage and devices; also in certaill improvements in. the mechan,isIll for bringing the blocks to position preparatory to sawing; also in it;nPf9ved constructions and combinations for delivering the. spalt and the froUl, the machine; also in many other details of construction and combination o[parts." Claims 1, 3,4, 5, 26, 27, 29, 30, 31, 43, and 45 issue. ,, The chief element of the first claim is a lever to facilitate the lifting of the carriage wheel or rim, in order to obtain access to the saws, which it is necessary to change at short intervals, and to lift the rim quickly when a spalt or thin piece of timber gets between the saw and the carriage. The claim reads:
":(1) silingle sawing IDhCllinehaving !laW's mounted oIl: verLical. arlm,s, andil1 l"O,t,a,.r,Y,.'.b.,!>,It c,'ar, R,U,.P, ,a a,l. S,h, aft, inc,o.,m.,bin.,ationwith a lever extending from the outside Qfthe frame to the central shaft, and haVing a' bearing on said shaft, the shaft and carriage may be 'lifted topel-mit access to the saws, substantially as de-' scribed.",' " " ' , The lever in this combination :was undouptedly an improvetnent upoh the 'old way of lifting the for the same, purpose by a crowbar bearing at Of 'near its lower end, an'<l properly fu}:· ?fumed, .blitjtwas an no inveJltion. 'J.'he third claim is as the first, :with the of a ,(latch piece attached tothe fram,etQ.' connect the lever and hold it up or d9wn"':""'::loqk it in po!'lition. $llph:locks were, old in90nnection with levers and other This havebeentj.l1owed. ' ,device, inventions are represented by claims 4, 5, and, 45, 'aup'read as f()llows: , "(4) The combination, withJberotatingcarrhlgeoh shingle-sawingma. chine, ,?f a dognElar tbe periphery of said carriage, a bent arm pivotally conn'ectedat its onter, erid to said carriage, and at its inner end bearing an antifriction foU,a $pring slll;rounding said tum, haVing an abutment on carriage; and an adjustableablitmerit: on' the arm, Whereby the' pressure of the spring maybe regulated, and a cain or incline on the frame against,which the antiftiction toU has a beatin$t in the rotation of the carriage, substanas.g,scr,ibed. (5) The combination, with the rotary carriage:of a shinglesawing machi()e, ofa dog near the thereof, and guided ill radild ways in said carriage, an arm con nected to sa,i,d dog, an,d extendi ng illward,ly past the iltationary dog towards the center of the carriage, a spring pressing said armand' dog inwardly,'a cam surface on the frame in position to press out the,said arm during:a portion of the revolution of the carriage. and a support for the inner end of said 81'01, sUbstantially,as described." "(45) In combinllpon, in a a series of block receptacles group!f!d. a central axis, ,a movable dog at the side of eac\l block; recept,lcle, a fixed c:logat 'the inside of each block receptacle. and an 'arm connected to the: movable' dJg, ,andextanding inward past the fixed dog." <, , ., J ,
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PER.lttNS ". ,IN,TERIOB LUMBER' 00.
287
Claim 45 the Sllme as claim 4, and, with the excepof the supP91"tat the inner end of the dog arID, claim 5 is not unlike it. The dog secure.s and maintains a firm hold on the block while it is operated by the saw. The action. of the dog is such that it grasps and releases ,the, single block of wood ,at precisely the right time to insure the sawing of, the shingle lj,nd the dropping of the bolt for the next operation. The great utilHy of the dogging, is clearly established; it is not denied, and question is whether the combinations covered by th,lil three claimS', are anticipated by any of the patents setup in the answer·. In the Freeman patentof 1858 the outer dog is mov{jd by a deviqe situated .outside the rim. Thisdcvice is intended to the dog to bite: the block, and hold it in position nntil released. 'rP.e automatic lock of the Inovable outer dog is the essential feature of this. alleged invention; The Freeman patent of 1859 dispenses with the automatic lock,and substitutes, in place of it a track extending more than.,onethjrd of the rim. Neither of these patents
288
FEDERAL REPORTER,
vol.' 51;
I
a skilled mechanlc'thle' devices. The iQ. the Kinney &' Parker patent of 1868 are unlike three Perkins <ioggingdevices,both in c()ustruc.tionand mode of .1'he. Evarts patent of 18'54 show;s ·a lever with a weight attached to it, and without any spring used in connection with it. This. lever is connected to the inner, and not to tlJe outer, dog, and the saw cuts against the outer or stationar,y dog. This is not the Perkins dogging device. The Clark patent of IBM IS for adevice having a rotating cai:tiage, Ilnd a dog nett.r the periphery. It has a compre¥ing spring to pteventa too rigid bite'bf the dog, but it is not the spring arm of the Perkirispatent. The block is dogged /lnd undogged by the operation of the two tracks. The tracks which cause the dogs to act upon the block terminate in a curved 'piece concentric with the rim, ,which extends ov'er one third of the way around the machine, holdsl the dog upon the block dUrihg the passllge,and retains the bite of the dog upon the block ing the passage of the rim for one third or more Of its revolution. This is hot the device covered bY'the three claims now under consideratiou. The machine described in the Palmer patent of 1870 is unlike the kins <logging mechanism. machinEl does not contain cams within the inner (lOg forth,epurpose of releasing the dog from the block.· It does not contain ,a dog supported by a link. It shows no button on the arms. It shows no dog arm 'pivoted to the outer dog, and extendingpast the inuer dog. It shows an extension of the outer dog itself connected withthe inner dog. Itsho",s the inner dog mounted upon the lever turning upoQa pivot, apd pivoted to that lever a short arm to be operated upon by a weighted leven, which is in no sense a Cam j the end of the latter lever being beveled perpendicularly to allow a ready clearance from the blockwhichactsuponthelever: The saw in a rotary shingle machine cuts in one dire.ction only, and, practically, lengthwise of the shingle bolt; thus it with great force against the dog towards which the saw a dog constructed as shown in the Palmer turns. It is believed patent would vibrate under the varying pressure of the saw, and not firmly retain the shingle bolt. The Palmer device dbes not contain the elements in the combinations known as the Perkins dogging devices. The evidence does not show that the Palmer device was ever used practically, and it is not probable that it is capable of such use. The O'Connor patent of 1887 shows an outer dog operated from the track on the outside of the carriage rim. It contains no dog or dog arm extending inwardly past the inner dog, and no track within the inner dog for undogging the block. This is not the Perkins dogging device. The Clark patent of 1863 shows a machine with a frame which entirely surrounds the block receptacle. Within the frame l arid between it and the inner dog, is a semiellipticalspring, which fills a portion of the apace which should be occupied by the blook, thus rendering it necessary to make the rims much larger. This frame is provided with a cam at its inner end" but it contaIns no friction roller or link. It has no spring for operating the dog arm or the dog, and the frame is moved positively by the cam. The spring is used to prevent a too rigid bite of the outer dog by the
PERKINS "'. INTERIOR LUMBER 00.
289
positive movement given it by the cam. In the Perkins dogging device, the sp,ring constitutes the sole means of moving inwardly the outer dog, thus causing it to dog the block, and tlie cam alone releases the block from the dog, and holds it undogged for a suitable time. There is a material· difference between this device and the structure shown in the Clark patent. The dogging devices used by the defendants are the full equivalents of the devices covered by claims 4, 5, and 45 of the patent in suit, and infringe them. We now take up the Perkins spalting device, inventions, and claims. Much timber, not fit to be cut into boards, is now manufactured into shingles. Before the spalting devices came into use, it required an extra man to remove the refuse blooks of tImber and spalts from a rotary shingle machine, which work was not free from danger to both operator and machine. The complainant insists that he invented the first practical and commercial automatic spalter. A rotary shingle machine has a series of block receptacles arranged around a carriage wheel extending from a point near the periphery inwardly. The block receptacles are placE)d as close to each other as possible to economize room and expense. The wheel rE\volves at the of eight or ninJJ revolutions per minute, and the time for opening the movable track sections, dropping the block, and closing the sections to receive the next block must be accomplished in one second. To attain this result, Perkins realized that it was necessary to move the track sections quickly, drop both ends of the block at once in a true yertical plane, move· the sections so that no time would be lost and no space left open, open the sections after the preceding shingle bolt had passed from them, and close them before the following bolt had reached the opening. He accordingly moved his track sections bodily away from each other, thus obtaining the widest opening with the least possible movement of the track. He moved these sections" from beneath the block," so that the block, dropping in a horthe movable sections. He placed a trip on izontal position, would the carriage rim that is shifted by the sawyer as it passes him into position to cause the spalter to open when in its revolution it reaches the spalting mechanism. The evidence shows that this machine is so nicely constructed and adjusted that it will drop blocks varying in thickness from atew inches to two feet, when running at a speed of 187 clips per minute. The claims here under consideration read: "(26) In a shingle saWing machine, the combination of the saw. the rotating carriage haVing bolt receptacles which move over the saw, a bolt-supporting way consisting of two concentric circular tracks and two movable sections side by side. and forming part of said tracks, adapted to be displaced from normal positions under the bolt. (27) The saw and carriage. substantially as described. the circular guideway, movable sections in and forming part of said guideway, supported on hinged posts, and lever mechanism connected to the posts. whereby the sections maybe swung radially in opposite directions, aU in combination, substantially as stated." "(29) The combination. with thEl and its sa w, arranged substantially as shown, of the circplar way beneath carriage. haVing a movable section, a movable bar siLle the rotating carriage and connectlJd to the movable section of the waf. v.51F.no.6-19
to il:lt?, pisplace the S,ectloJ)f . and saw, ra.. . . ks :described.,. th,e" Way bElneath 'the cartiage "having a the l?onncectecrto the movinto position to able's&!i6d, tM trip oh !tlle: catriageadapted' to btl tmgll.gei UI.' mtB'oole bartand a stop positipJl. l.l;S;dljsqribed., j$he combination. "If war. con· sIstlng'of two tracks, a section of eacli-track in 'advljulce Qr .'the saw made, ,and a .catch ontbe carriage ip position both'tracks simul" set'fortli."'l "" ,'I "',::U ': ' 1 ·. )'i
;
''fheiO'Conuorpateutds chiefly,: relied Qn.ll.S fl.l) anticiPl!!tion of these claiIbs.;'wH thus deecribe$' i:ismecl)anislU"for dropping the imperfect ! At the )ett' of Fjg'''l'llnd at' tM 'right of Fig. 4, Ishow'a detachable 'or, end Of'i sa'id track "is ,pirotoo to an upright ' slWiIigtngtitiack pf,lSVat34"uporiwhi¢:i Mid tnlck sectioo.swings. ';rhljl, free, end of ,lihEl of t,M,outer, tiQp. of ,;N; ear,; tpe 8" I 'l\ d}'a,w,barJ, fs !o9se1y. to an. bat,:tt, aM to the' bar, K, I altach a sWlOgin'g' bitt; (1; be'ing vottM'to' the atatidnaryfranle.H. Tothe forked llppet-abd of itJar.'IK, I phtota dog'. f. and to.' the rear enliof said d6g.I,piv'ot iltn'operl\tiin,g: rod,n, .Said·tad,is attac,he.d to sllli4har,; J .lB,. ,bent outward. forll;ling a horizl!npal t·t! ,: e on said and 0 is a, wire swmg holds the rod uP, tlf its nOfma) sho,wn ·. \ower end of the ,reclprocareing bar, K, is pivoted' to the;'forkedstibhlard'atSliwbictds fitm'lyattached to the base, 'A j uNbe mil.chhul;''lSea Fjg:,l. Attached to'the bl/or, Hli.andpassing over the pulley, n 1, is a cord. c1l,.y{ith1;w.eigl14: !wl.. Sl\id cOl;dil"nll, weight hold the bar; its as anp. inclosing sec· in <(utting Slung}!'/'! froml;}ie lower face of the .As tilt\)' reduced, the remambe unlit'fbt'soTngles on account of a bad heart. itig or'becltus'eJOll tmtllU matilrial'or knol;s,8'nd 'to such a block from the ndt! beotiUgeil j)osaw cit up intoishi ngles. the operator. pluces his f00tupollitbe-ilt.et>, projecting I'lndwill eQgage;Witp, l!ne(of tllel1;lgljl, of trav,eling carril\ge, W, back t(l, J.iosition,of ,Fig. 1,drawingtheswlngmgtrack position of ,Fig. 4. When the r!'fuse block passing from the saw reachi:ls it drops through the ,block t?rough, and foot from, .·.,.n . ., w i.I,Idra.·". wtheba.'.'I.:,. K".baek to then.ormal .... .. back to its nnrmal , The shnigl,e,blocks are dropped onto . . 'p .· "?pera . .. the D3. the sliding. heads, .. as the}': pass the table, D3. to'fteely receive the shingle
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PERkINS
V. IN'rERIOR L\:r'MBEROO.
vance of the arrival of the block; so it plunges opening. necessarily drops through the O'CiJUnormachin.e in a. somewhat tilt(id position, and thus lodges interferes with the operation of the Dloohanism; The PerkinS spatting device contains hacks capable of opening or moving from each other while the block is resting upon them. Perkins was the first to construct such a device. He first invented mechanism capable of automatically operating spalting ways at the proper time to drop the block or spalt. He first used a trip upon the carriage adapted to be set or placed in'position in ad vance of the time when the spaIter was to drop the block. In short, he invented and put into actual use the· first spalting device of real commercial value on a shingle machine. The evidence shows that not a single machine4as been accordance witb.:the O'Connor patent within the last sikor seven years, and that those that were made before were unsatistactory, if not wQrthless. The defect in the O'COJmor machine is inherent,and cannot be remedied. George Challoner& SOllS own the O'Connor patent,. and they are bAaring the expense incident to the defense of this suit. It was claimed by their counsel that the Perkins device involved flo invention; that it was a mere mechanical improvement lipon the O'Connor device; and yet, with the latter be/ore them, they did not see how it could be improved. The machines made by the defendants contain the dogging device alld dropping device covered by the Perkins patent. An obviollS effort has be.en ma<le to a,void the respoI1si1:>ility of infringement by mere mechanical changes. The Perkins spaltiDg device and the O'Connor spalting device do not operate upon the same principle; they are functionally unlike. The Holbrook patent of July, 1883, also relied on as an anticipatiohof the Perkins spaIting claims, relates to a cash and parcel carrying device in common use in stores; that device is so constructed that the rails spread at desired points. I do not think this patent is relevant. The defendants infringe these Claims. Claim 43 reads : "(43) The combination, with a saw carriage, of a wooden block furnlslllng a bearing for the sanle, and an oil-retainIng trough in which said block is seated."
Iron blocks had previously supported the carriage rim, but they bent and wore the· rim, and the friction quickly scraped away the oil from the blocks, the "faces of.which also became uneven from wear." In the place of these, Perkins substituted wooden blocks, resting in oil receptacles, to feed or lubricate the wheel, and keep it in a true plane and in good condition. Oil is supplied but once a day. and by capillary attrae-tion it keeps the rim lubricated. The great utility of this device is not disputed, and I think it involved invention. The substitution of one material for another in manufacturing often effects material changes both in product a.nd expense. In Turrill v. Railroad 00" 3 Biss. 66, JUdge DRUMMOND said: "A sometimes. of a known machine, or sOUle of its parts, will affect surprisiug results, and to protect a party who, by inventing such
,FEDERAL REPORI:ER,Vol
51.
eh3ngerhl\S produced a new and useful result, was clearly one of the, objects Jaws." " ThisiMguage is perti,nent to the claim, which the ante ,infringe. The usual decree will be entered in favor of complainant. ",-,
DnrON':'"'WOODB
Co.
V. PFEIFER.
(Oircuit 1.
N. D.New l.""ork. June29,1892.)
Claim lef'letters patlent:No. 258,156, IssUEldMay 16, 1882, to Cleon Tondeur for an furnaces, COVel'S: "The ooinbinllotion of the bars, cl, a:, SIde by side, and alternately between each other, the set, d..supporting the sheets of glass, while the bars, a:, are pushed towards the leer or flattening wheel, lind the set, d, the sheets of glass. Bnd moving them onward and through the tunnel, substantIally as set forth." The drawings show the bars raised some distance'from the floor arid the specificBtions state that a space of about one toot is desirable beneath the bars; also that in transferring the glass one Set of. bars is raise4; aud the other lowered, about one inch. The evidence showed th1l.t there were great advantages in holding the glass some distance above the floor and CliIrrylng it in a horizontal:plane. Held that, in view of the prior patents to Bievez, Bouvy, and others, the patent could only be sustained as describing meohanism for carrying the plate in' a practically horizontal plane, above the floor. andthllt the statem:ents in the specUications were sufficiently definite to be read into the claim, ,so as to give it this construction. Tondeur v. Stewart, 28 Fed. Rep. 5111, and Same v. Chamber8, 87 Fed. Rep. 888, followed. As the speci:\lGations tl0int out ,that the bars are to be located at some distance above the floor, alid so arranged as to carry the glass on prllctically the same horizontal plane 'While advancinglt through the leer, it is immaterial that the inventor did not more preciselypoi;nt out the advantages which would' inure from this arran'gement, or that he himself was not aware thereof when obtaining the patent.
FOB iNVI!lNTIONS-ExTENT OF CLUM-GLAss-ANNEALING FURNACES.
S.unli....SPJlOIFI04TIONS.
In Equity.:Bill by the Dixon-Woods Company against Pfeifer for infringement of letters patent No. 258,156, issued MaY' 16, 1882, to Cleon.Tondeur, for an improvement in glass-annealing furnaces. Decree for complainant. . W.· Bakewell &- Sons, for plaintiff. HeJ/J &- Wilkinson, for defendant. WALLACE,. Circuit Judge. The patflnt in suit (granted May 16, 1882, to Clean Tondeur, for glass-annealing furnace) has been twice adjudicated 1:>Y Judge ACHll:SON at final hearing in fully contested cases in the circuit court for the western district of Pennsylvania, and sustained as to all the claims of which infringament wa!,!alleged. The combinations which employed in the furnaces are the subjects of the several Qrleers of the defendant, who isa contractor and builder of leers., Evhas been intr.oduced for the defendant in the present case respecting the prio!;' state QI,the art, and the utility of the patented invention, which was not introduced in the former cases. ,Unless, in view of this new evidence, there should seem to be reason for disagreeing with the conclusious' reached by Judge ACHESON, the rule of comity