954
FEDERAL REPORTER, vol. 63.
s;'6'Jioha:id logs, or removed tJlesame, if they had not been actually delivered to him by Pates; and, th.e'evidence being insufficient to ine beyond a reasonable JQOubtthat such delivery by Pates wilSobtained by. Rctual false statements and' representations m::tde the case lacks the element of taking' of property from thecustoa;Y of 1heirwill. Sectiori"725 of the ReVised·Strttitltes· of the United States limits the.power!bf thiscotirt Persons not parties to litigation p'ending in thecdtirt, and not Mlding official positions 'requiring them to yield Obediehce,to the court in their official be punished for contempt 'only for acts. coDimitted in. the immediate presence of the court j ·. or so near 'as r to with the: administration of justice, or for willfUllyt'tElsisting the executionof;thelawful process ot' commands of the'<;Ouft. The word "resistanCe/' used in the -statute, is to be implying a willful' purpose to interfere so as to preventtl'1e',execution or process or the court's orders. for contempt mustbe,Bupported by evidence sufficient to coriVih,M the mind of the trior, beyond a reasonable doubt, of the 9f the accused,' and every' element of the offense, including a 'criminal intent, must be proved by evidence or circumstances inference of the, necessary facts; otherwise, the defendant-is' 'entitled togo acquit. In this case, While the proof establishes. the fact of an actual interference with the business qf the receivers of this court 'by the taking away of property in their la"Vft11 custody, without their consent, and while the prosecution appears to have been founded upon evidence showing just cause for .the accusation, I nevertheless am constrained to decide t)rat the'accusation has not been proven. Without'proof of knowledge on 'the part of the defendant of the lack of authority in Pates to ,release the logs, and withotitconvincing evidence that the defendaritdid fraudulently induce Pates to surrender the logs by falsely representing to him that tb,e receivers had consented thereto, 1 can find no facts warranting an inference of the criminal intent necessar;r to justify the infliction of punishmen t GESSNER v. PHILIPS et al. (Circuit Court, S. D. New J"ork. February 14, 1894.)
1.
PATENTS-TESTS OF INFRINGEMl1lNT.
Devices which are notequivalent;S· of those patent,,(t and could not be su,bstituted therefor withOllt the exercise of invention, do not Infringe. ..,,: " . .
2. SAM]l:. ::.,
Infringement cannot be safely deterl'nined by compal'ing the two machines, without regard to. the claJIIls of the patent. Where the spirit of an lnvetitloll is taken. infringement is not avoide<l by carrying the invention than thl) patentee did. The following patentlf to David Gessner for improvem<)nts in clothpressing machines explained and construed as to the claims mentioned, ,
8. 4.
SAME;
SAME-PARTICULAR PA'fEllT,TB",",:"Cr.OTH-PRESSING MACHLNES.
GESSNER tI. PHILIPS.
955
and No. 387,290 htld not infringed as to claim 10; No. 387,292, held vaJ,id and infringed as to claims 3 and 10; No. 387,297, held not infringed as to claim 1, andillfringed as to claim 2; No. 424,971, held not infringed as to claims 1, 4, 'and 11 to 16,and void as to claim 2, because previously patented to the same inventor.
This was a suit in equity by David Gessner against F. Stanhope , Philips and others for infringement of certain patents granted to complainant for improvements in cloth-pressing machines. Livingston Gifford, for orator. Oansten Browne, for defendant. WHEELER, District Judge. The questions involved here arise upon four patents for improvements in cloth-pressing machines granted to the orator, and alleged to have been infringed by the defendants, in using a ma.chine subsequently patented to George W. Voelker. Oloth is finished in these machines by being fed tween hot surfaces, one having a smooth jacket, under great pressure. The machines of the kind in use in this particular art next before the invention of the first three of these patents were one invented by' Ernst Gessner, of Saxony, father of the orator, patented by No. 4,913, in England, December 27, 1877, in which the cloth was passed between a cylinder and two bedplates, one on eacp. side, connected by a continuous jacket below the cylinder, and mounted on supports connected above by pig-tail springs, and flcrews drawing them towards the cylinder for pressure, which could not be wholly relieved from pressure without wedging them apart; and machines patented in two patents to George 'V. Miller (No. 257" 508, dated May 9, 1882, and No. 352,253, applied for January 6, 1885, and dated November 9,1886), in which the cloth was passed between cylinders and bedplates below, pressed together by compo'tlnd levers. In those machines, when stopped in use, the pressing surfaces could not be readily separated, to prevent press marks on the cloth from the hot surfaces, nor for access to keep these parts in order. These inventions were made to relieve those difficulties, and .to increase the capacity and efficiency of the machines. The improvements consist largely in mounting the cylinder in fixed bearings on the frame of the machine, and a bedplate on each side in movable bearings sliding on guide ways on the frame towards and from the cylinder; and in mechanism for moving and securing the bedplates evenly in relation to the cylinder for adjustment, pressure, and access. The patents and claims in question are No. 387,290, claim 10, which is fOr: "In combination, the cylinder, pressing devices co-operating therewith, a lever at each end of the cylinder for operating the pressing devices, toggle joints adjacent to said levers, and connected therewith, one of the links of each of said toggle joints being provided with a screw-threaded rOd, substantially as described, whereby the pressure exerted by the toggle joints may be equalized, and means for operating said toggle joints."
No. 387,292, claim 3, which is for: "In a cloth-pressill/; machine, in combination, a frame having- fixed bear'lngs tor the cylinder, and guide waJl:l for the bearings of the bedplates aI'-
956
FEDERAL REPORTER,
vol. 63.
ranged on ,o)}P6site,sides of said cylinder bearings, the cylinder, and the bedplates' 'on opposite sides of the cy'linder,and each bedplatebeing provided (Witll[ bearings arranged to, sllue in said guide ways, whereQY, the bedplates IIlq reCiprocate to and from the cylinder, substantially as described."
And tclattnlO, which is forl "In com1).\nllt1on, the feed rollers, ,tbe cylinder baving fixed bearings, the two for, exerting and relieving pressure on the' bedplates, supports for the bearings' of the bedplates, movable relatively to and independently of the bearings of the cylinder and feed rollers, whereby the bedplates may be moved back fliomthe, cylinder without disturbing the position or operation of the cylinder or feed rollers, substantially as
and r
And No.; 381,297, claim 1" which, Is for: "In a cltltb-'pressing machine, the combination, with, the bedplate and the eylln(1er ,andth" sheet-metal jacket, 0:( means, substantially f!.S described, wbere!)y" tAe, ienlis of tbe sheet-metal jacket are, secured to. the bedplate, and the thereof are prevented from springing into' contact with the cylinderias' !let forth."
And
claim
is for:
"In the cylinder and the bedplate, a sheet-metal jacket secured, at Qpee<1ge to the bedplate, and, extending between the bedplate and the cylln!l:W-, an4,the clamp ov,erlapping the opposite edge of the sheet-metal jacket, iUidh01ding it in place, substantially as deScribed." ",;1, "
are dated August 7, 1888. used by the defendants, has, on a frame of two ends' together1a cylinder" in raised, fixed bearings, driven byb.gear wheel; bedplates in bearings sliding on guide ways back ,of the. frame, on each side of, and towards and from, the cylinder, by levers at each end pivoted on nuts connected by a threaded rod below the cylinder, with their short arms connected to the bearings, and their long arms connected below by toggle, jolIit$, ,operated by cams to move the levers, and produce powerfulpl"e$sure on the bedplates equalized bya rod between the cams, 'at1d thereby diSpensing with connections between the bedplates; and' feed rollers mounted on the frame, out of the way of the motioJlof the bedplates. The questions made arise principally upon the 'construction of the claims with reference to infringement. . " The lever ?tclalm 10, No. 387,290, is pivoted on the shaft at each end of and has two short arms ea'ch attached to on the ends of the bedplates, and a long arm, connected by toggle joints to the frame below, which, when moved downwards by the the toggle joints, produces, hy moving the short arms, of the bedplates towards the cylinder, which is equalized between the ends by a screw-threaded rod in one 'of each of the toggle joints. The combination of this of the chlJim includes a lever at each end of the cylinder for operating the pressing devices, and toggle joints having one link each provided with a screw-threaded rod for equalizing their exertion of pressure. The machine used by the defendants has all the other elements of the
GESS]l;ER V. PHII.IPS.
957
combination, but no lever at or connected with either end of the cylinder, or with the cylinder anywhere, or link of a toggle joint provided with a screw-threaded rod for equalizing exertion of pressure, or other purpose. The two levers of this machine, with their connections, toCgle joints, and cam movements, could not be substituted for the three-armed lever, its connections, toggle joints, and screw-threaded rod movement, without invention of respectable, if not high, order. They do the same things, but not in substantially the same way, and do not appear to be equivalents in this combination, or, with the other elements, to infringe this claim. Eames v. Godfrey, 1 Wall. 78. maim 3 of No. 387,292 is spoken of for the defendants as if it took in the means whereby the bedplates are made to reciprocate to and from the cylinder as an element of the combination, and that defendants' machine does not have such a combination. But such means do not appear to be so mentioned. Under the "whereby" appears to be stated an advantage, not an element, of the combination. The defendants' machine appears to have what are included as elements of the combination producing that advantage. Claim 10 of the same patent leaves out of the combination the frame, as such, and the specific arrangement of the bearings of the bedplates on opposite sides of the cylinder, and brings in mechanical means for pressure, and supports for the bearings of the bedplates, movable relatively to, and independently of, the bearings of the cylinder and feed rollers. The effect of combination is stated to be that the bedplates may be moved back from the cylinder. without disturbing the position and operation of that, or of the feed rollers. Reference is made, against this claim, to prior patents, showing feed rollers mounted on stationary parts of the machine, and to the Ernst Gessner machine, as anticipations showing want of invention. The movement of .the bedplates from the cylinder, in the sense of this claim, seems to be such. as would wholly free them from the effect of each other. The bedplates of the Ernst Gessner machine do not appear capable of such movement back from the cylinder. When wedged apart, the operation of the cylinder would be seriously disturbed. If the use of feed rollers so mounted was old, the bringing them into this new combination would be producing a new combination, and not merely making a new . use of an old device. Claim 1 of No. 387,297 is for means for securing the ends of the sheet-metal jacket to the bedplates, and preventing them from springing against the cylinder when. narrow cloth, not reaching to the ends of the jacket to hold them down, is being pressed. In the machine used by the defendants the ends of the jackets, from their form, in two arcs, need not be, and are not, secured to the bedplates, any more than their interior parts are; and no means are used for securing the ends of the jackets, as such, to the bedplates. This claim, therefore, does not seem to be infringed. Claim 2 of this patent is, in substance, for a clamp over one edge of the jacket, permitting easy removal, in place of a bend over the
958 '(j.
FEDERAL 'REPOltTER,
·\isedby desl1ch a clamp, per'ill. .·. ,it.he s. . B.ythis." the,., Of, the in",.ention of this to have':lbeen taken,and carried further. This exterisi6-n, ,of it does notel1re the iilfringement in taldng it. , In'tJiemachineofthefourth'patent,No; 424,971, which is dated the bearings of the bedpiates leston guide ways bethe bearings of the cylinder, byhfilldwheelS connected with nuts on opposite threaded screws in' wggle joints, one on each side, between the 1:)elilplate ;lnd a projection on the frame, ha,ving sprocket Wheels, to'be,it,9h'D:ectedby a sprocket for moving the bedplates in unisl?Illh'!n the machine used by the defendants, the bearings of 'are,mdvable by pivoted on nuts connected the' undet'ttfe en", of the,eYlinder by an opposite threaded'screwturned by a 'fIfQha'W:heel, and worked by aertm on toggle joints between theit"l<otlg'ltnns belo'\'V; 'Turning way or the other ends of the levet'8, ',and by them the bedplates toWar?8, from. the 'cylinder; and i llid'Ving the cam" on the toggle or moves the long arms of the levers to or aJld,thereby moves the upper ends of the levers, the bedplMes' fuMhet" '. or from the cylinder. The$E! c(lfll)'eCtlpns between the bedpllltes do not interfere with the remo""al.'o'ftllecylinder,and thisarrimgement leaves a third side of open f6r'its remova:llaterally. The; claims of this patent'tdleged to be infringed are the first, second, fourth, and eleventhto:,sb'teenth. The ,. teo
. . ¢f.iOf the. bed.'Pl,Wl.'.'}I. ve.Iltin·. be: secured by .··· I.n.'.th.e fen'da.pt", both appear ,to
1Dac;hine, in combination, a cylinder, stationary rigidly to the. frame, and' the following parts arsides of ithe cylinder, leaving a third side for the lateral removRliof'it:he cylinder, viz. two bedplates arranged on opposite sides of the 8.Jil,d an power-imparting mechanism, SUbstantially as descrH¥la" ,for each bedplate, each ofaaid power-imparting mechanisms abutting lit its rear end against the frame,. Whereby connections between the bedpiates with removal of tbero-linder may be dispensed with." bearings ; ii, '
,
'1 {),i,', ,. ','
, , ' ,,.'
,::
The for the bedplates of. the machine is by a screw between the nuts at the used ends of tbeshort arms,and atogglejoint between the long arms', of the levers. If the screw or the toggle joints should break or be removed,jtwould not at all, toggle joints should be disconnected, on either it is not,adapted to work on the other, and is not: shQwn to have; The strain of the mechanism is not borne at the frame, but by the. screw ; and the mechanillm, rather holds itllelf together, than a.buts against anything; It\.'!it,i.f: anything ():q. each side, it is thenut on the screw, or, if all tqgtft'P,er, it is screw. of these is a paM of the mecb,MilUP, and not of the frame. As tb,ese things are understood, that machine has not power-imPltrting mechanisin adapted to be independent, or so used, n,or such mechanism abutting at its rear end, or otherwise, against the 'frame, nor anything answering these de-
GESSNER V. PHILlPS.
959
scriptions. Therefore, it does not appear tohave the combination of this claim, or in any way to infringe it. The second claim is for: "In a rotary cloth-pressing machine, In combination, a cylinder having itfl bearings in the frame, whereby it is supported independently of the bedplates, and the following parts arranged on two sides of the cylinder, leaving a third side for the lateral removal of the cylinder. viz. two bedplates arranged on opposite sides of t):le cylinder, and provided with carriages for moving on the slides, and slides in the frame supporting each bedplate, whereby the bedplates may be slid to and from the cylinder, on the frame, without affecting the support of the cylinder, substantially as described."
The only difference between this elaim and the third claim of 387,292, on its face, is that here the bearings of the cylinder are t6 support it independently of the bedplate. That patent, however, shows bearings of the cylinder so supporting it, and that difference disappears. The orator could not have a second patent for the same thing. James v. Campbell, 104 U. S. 356. The fourth claim is for: "In a rotary cloth-pressing machine, in combination, a cylinder, means for driving the same, and means for supporting the same independently of the bedplate, two bedplates, one arranged on each side of the cylinder, and supporting and power-imparting mechanism, whereby the bedplates are supported and actuated, said supporting and power-imparting mechanism being arranged wholly out of the path of removal of the cylinder, whereby the cylinder may be removed without either dismounting the bedplates or dis· connecting their actuating mechanism, substantially as described."
The power.imparting mechanism of this claim seems to be required to be so arranged that the cylinder can be removed without disconnecting it. This mechanism of the machine used by the de· fendants does not appear to be so arranged for use, or so used, and it does not appear to have the combination of, or to infringe, this claim. The eleventh and twelfth claims are for combinations of the parts of those mentioned and some othel'S'; and, in the eleventh, "all said parts being arranged on two sides of the cylinder, whereby the cylinder may be removed laterally to a third side"; and, in the twelfth, all being arranged on three sides of the axial line of the cylinder, whereby it "may be removed laterally to the fourth side." The arrangement of these parts in the machine used by the defendants does not appear to answer this description as to the removal of the cylinder, and therefore the machine does not appear to infringe these claims. The thirteenth and fourteenth claims are for combinations including "an actuating mechanism interposed between each bed· plate, and stops on the frame." As shown with reference to the first claim, the machine used by the defendants does not have such actuating mechanism so interposed, and so does not appear to have the combination of, or to infringe, either of these claims. The fifteenth and sixteenth claims are for combinations of such parts like those of the fourth, arranged so that the cylinder may be removed. The machine used by the defendants does not more appear to infringe these claims than that.
960
FEDERAL REPORTER,VOJ. 6:{.
Upon these conclusions, the orator.appears to'be entitled, in this case, to a decree establishing the validity of claims 3 and 10 of No. 387,292, and claim 2 of No. 387,297, and to no more. This may! not cover all that he invented which the defendants use; but in· fringement cannot be safely determined, by comparing a patented macMJle with ap. infringing machine, without comparing the infringi,:p.g machine with the claims of the patents.. When the rna· used by.the defendants is Qompared with the claims, this seems to cover all that the orator invented and claimed in these patents, which the defendants use; and the patents cannot be extendeli l>eyondtllebounds of the claims to cover anything outside, howe;ver it may have been invented. Decree for oratOl'Oll clalmjiJ3and 10 of N().:387,292, and 2 of No. 386,297.
On Rehearing·. (May 22,1894.)
WJIEELER, District Judge.. cause has been further heard upon a petition for rehearing as t(l, the validity. of claim 2 of the patent No. 424,971, as compared with claim 3 of No. 387,292, and for a decree that it is valid, upon the filing of a disclaimer limiting it toa combination with guide ways always supporting the bedplates; and for a rehearing as to the infringement of claims 11, 12, 13; and 14 of that patent, and also claim 16 of No. 469,372 by the toggle mechanism moving the bedplates of the· defendant's machine. The guide ways of claim 3 of No. 387,292 would always support the bedplates if the latter were located one on each side of, and horizontally, or nearly so, with, the cylinder, as in 424,971, instead of vertically above and below it. Nothing in the claim itself requires them to be located vertically, and the specification merely says, as to this, at line 84, that they "are preferably arranged one above and the other below the cylinder, as shown in the drawings." The bedplates and cylinder in respect to each other preeisely the same in either way; arid the guide ways guide the bedplates to and from the cylinder in the same manner, but support· ing their weight wholly or in part when they are horizontal to the cylinder, or nearly so, and without supporting it when they are vertical. The guide ways, as supports to the· cylinder, do not appear to constitute any material part of the invention of claim 2 of 424,971. These .claims, as again compared, therefore, appear to be for combinations of the same elements operating in substantially the same way in respect to each other, although they are operated by different means, not the subject of this, but of other claims. This seems to be fatal to the validity of this claim 2 as it is, and would seem to be equally so if the claim should be limited by dis· claimer as proposed. Miller v. Manufacturing Co., 151 U. S. Uo\(;, 14 Sup. Ct. 310. Each toggle mechanism of each bedplate of the machines of the plaintiff's patents abuts against what is sometimes called
GESSNER ". GLOBE WOOLEN CO.
961
a "bracket," and sometimes a "stop," on each side of each frame, for support of the· pressure by .the toggle mechanism against the bedplates. The toggle mechanism of the bedplates of the de· fendants' machine opposite to each other, as before described, abv.t against each other for support in operating between the long arms of two levers moving them, and thereby the short arms, carrying the bedplates to and from the cylinder. A stud on the frame steadies the action of the mechanism, producing simultaneous movement on each side, which friction or other slight obstruction might prevent; but this stud does not appear to take the place of the bracket or stop of the patent in supporting the pressure of the bedplate against the cylinder, but rather that of the sprocket wheel and chain of the patent, which produce simultaneousness in movement of the bed· plates. This re-examination of these parts of the case leads to the same conclusions reached before, and leaves no ground for granting the motion, which must therefore be denied. Motion denied.
GESSNER v. GLOBE WOOLEN CO. et aI. (Circuit Court, N. D. New York. September 6, i894.) No. 6,266. This was a suit in equity by David Gessner against the Globe Woolen Company and others for infringement of certain patents issued to complainant for improvements in cloth-pressing machines. '£'he patents and claims in controversy were as follows: No. 387,292, claims 3 and 10; No. 387,297, claim 2; No. 469,372, claims 1 and 3. Livingston Gifford and J. 1\ A. Doolittle, for complainant. Causten Browne, for defendants. COXE, District Judge. The patents, upon which this action Is based, have all been adjudicated, and the claims relied on sustained in suits brought by the complainant against Philips et al. in the southern district of New York, 63 Fed. 954. A machine similar in all respects to the machine now sought to be enjoined was in evidence in that litigation, but there is a disagreement between counsel as to whether or not the court held it to be an infringement. All other questions are res judicata. Assuming that the question of infringement, as to some of the claims, is still open, I am of the opinion that the decision in Gessner v. Phillips is broad enough to cover the present structure. A holding that the defendants' machine infringes follows as a necessary deduction from that decision. The changes Introduced since the commencement of that action are of form and not of substance. Concededly the defendants' machine produce'l no new result. It operates on the same principle and, substantially, in the same way. The third claim of No. 387,292 certainly covers the defendants' machine. The construction asked for by the defendants is narrower than the construction already placed upon the claim and is not required by anything in the patent or in the prior art. There may, perhaps, be sufficient doubt regarding the infringement of the tenth claim of this patent to justify the court in with· holding the injunction at present. Should occasion arise the motion may be renewed as to this claim. It follows that an injunction should issue restraining the infringement of the third claim of No. 387,292. the second claim of No. 387,297 and the first and third claims of No. 469,372.
v.63F.no.7-61