962
FEDERA.L REPORTER,
vol. 63. AIR-BRAKE CO·
WlDSl'lNGR0U,SE AIR-BRAKE CO. v. NEW
. et al.
WESTINGHOUSE et al. v. SAME. eourtot Appeals,. Second Circuit. October 15, 1SM). Nos. 4,976,'4,977, and 5,315.
1.
PATENTS-cAIR ,BRAKES MENT. .' '.
.
..
-l)ONEER INVENTION -INFRINGE-
The Improvement in quicktlOOtlng . automatic air brakes, consisting of a chlUbber baV,lng direct connections, ,W the bra.4ecylinder and pipe,w:ith a between these connectloQ.s, .and an emergency piston independent of and unconnected with the triple-valve piston, and actuated by pressure'from the auxillary Inaditootion to impart opening movement to the valve, fo1' whicb;apateI1t(No. to George Westinghouse, Jr.,. }888, bywh!$;t4El problew of imme4iate stoppage of long trains of cars in time of danger was' succesafully solved, atter many years' eXperiments, is to be liberally construed, as a pioneer invention; . and its claims will not bellmited to the precise mechanical means described in the specification by which the supplementary piston is actuated, but compel it to 'be disconnected wit)l and to be independent of the triple-valve piston, and to be actuated from an auxiliary reservoir by some !riJ.eans equivalent to the means 'described, in the specification; and, as thus construed, the patent is, infringed by defendants' device of a supplementary chamber,' whose piston is actuated by difi'erent meclutllica1 means. 2, SAMm......AwTwIPATJON.
The ,Westinghouse patent, No. 448,827, for a valve controlling communiea.t1oo between a supply passage from the train pipe and a delivery passage to the open air or a brake cylinder, etc., whose distinctive feature is that the emergency valve is actuated to open the exhaust port "independently of the actlon of the triple-valve device," is invalid, as covered by thEl broad claims of patent No. 376,837.
8.
SAME-cCONSTlWCTION-SU:BVRj)INATE PATlllNT.
Patent No. 393,784, to Harvey S.Pa.rk, granted Decembe,r 4, 1888, which merely substituted train-pipe pressure to move the emergency valve in thll su,pplementaJ:y chamber for the auxiliary reservoir pressure which Westinghouse used, being a subordinate patent, wlll not be so the various d.evloes which may actuate an emerconstrued as.to gency valve,ipa chaniper by train-pipe pressure, and is not infringed by a device. in which the valve is not held to its seat and not restQred to its place by the piston, as in the patented device.
4:.
SAME-INFRINGEMENT.
A' claim in an air-brake patent (No. 172,064) for a combination containing. a .port through the center of the piston, described as substituted for a side port, with which the patent dispenses, is not infringed by defendants'·. device, having no such center port, but using a side port in oomblnationWith difi'erent elements, which are admitted by the patent to be a part of the prior art. '.
l$.
SAME-PIONEJllU' INVEN'1'U)N--'-'MECHANICALEQUIVALEN'1'S.
The Westingb(>l1se invention (patent: No. 222,803), to be used in connection' With' an air brake, consisting of an e:qgineer's valve, which, bythemOVeII1ents of a single stem or lever, should admit, and automaticallYl!lt&J} alimitting,tluid pressure to the brake pipes, by means of a automatically retain such pressure,and permit its escape' by' an exhaust valve,' with means of automatically closing either valve when the desired pressure has been charged into or with.. drawn from the train pipe to which the device was connected, being construed as a pioneer invention, is infringed by defendants' device,
WESTINGHOUSE AIR-BRAKE CO. 11. NEW YORK AIR-BRAKE 00.
963
the only difference in which Is the substitution for the dlreetaction of the piston through the interposed stem In opening the valve, as used in the patented devIce, of the action of a bell-crank lever, pin, and lever. " 8. SAME-ANTICIPATION.
Such patent (No. 222.803) was not anticipated by the WestinghoullEl patent,. No. 128,015, or by the Fay & Cairns patent, No. 141,685, for an apparatus for regulating the flow of water in houses, and shutting it off when there Is an excess of pressure.
These were suits by the Westinghouse Air-Brake Company against the New York Air-Brake' Company and others, and by George Westinghouse, Jr., and the Westinghouse Air-Brake Company against the New York Air-Brake Company and others, for the infringement of certain patents for improvements in railroad brakes. The bills were dismissed as to some of the patents, and decrees granted as to certain specific claims in the rest of the patents. 59 Fed. 581. Complainants and defendants respectively appeal from the$e decrees. George H. Christy, Frederio H. Betts, and J. Snowden Bell, for complainants. J. E. Maynadier, Fred'k P. Fish, Esek Cowen, and Edward C. James, for defendants. Before WALLACE, LACOMBE and SHIPMAN, Circuit Judges. SHIPMAN, Circuit Judge. The various appeals in these three cases are from decrees of the circuit court for the southern district of New York upon three bills in equity for the alleged infringement of letters patent. No. 4,977 was founded upon letters patent No. 376,837, dated January 24, 1888, and letters patent No. dated February 11, 1876, each iF!sued to George Westinghouse, Jr. The circuit court decreed that the defendants should be enjoined against their of the first, second, and third claims of No. 376,837, and that the bill should be dismissed as to No. 172,064. No. 5,315 was fOllnded upon letters patent No. 448,827 to George Westinghouse, Jr., dated March 24, 1891. The circuit court decreed that the defendants should be enjoined against the infringement 'of the first and second claims of this patent. No. 4,976 was founded upon letters patent No. 393,784, dated December 4, 1888, to Harvey S. Park, and No. 222,803, dated December 23, 1879, to George Westinghouse, Jr. The circuit court dismissed the bill as to No. 393,784, and decreed that an injunction should issue against the infringement by the defendants of the second, third, and fourth claims of No. 222,803. The complainants and defendants have respectively appealed from the decrees which were respectively adverse to them. These patents are for improvements in railroad brakes by fiuid pressure, and will be better understood if they are considered' in the order of their relation to each other, rather than as they are grouped in the bills in equity; and therefore Nos. 376,837 and 448" 827, which was originally applied for in the application which resulted in No. 376,837, naturally take precedence. It is necessllry to give the history of the development by the patentee of the au-
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IV'
I'EDERAL
vol. 63.
and of the patent to Park (No. 393,784), depends, to a great degree, upon a knowledge of this history, which was accurately condensed ,by'Judge Townsend, as follows:
tiqn ottb.eimportant claims of the two patents now under consid-
air-brake system, because the construe-
eration;
alrbrake is known as the 'plain brake,' and is described in patent No. 88,929, granted to George Westinghouse, Jr., April 13, 1869. It consisted of a pump operated by steam from the locomotive boiler, air into a, reservoir located under the locomotive cab, commJlnicated by a, pipe with a or valve in said cab, called valve,' which was so located as to be readily manipulated by the engineer. From this valve a pipe extended back under the tender, and was connected to a similar pipe under the entire length of the first car by a fie,dble hose. Each of the sllcceeding cars had a siII41aJ: pipe was called the 'train pipe.' From ,tb.etrll.ln pipe of, eacb, car a branch pipe cOJIlmunicated with the fOrward end' of a cYlinder cll.1led the 'brake cylinder.' This cylinder ';,vas" pro\Tidedwith a piston, .the stem of which was connected with the brake levers on the car. When the engineer wished to apply the he opened the engineer's valve, and the compressed air from ilie main reservoir 'fiowedba.ck through the train pipe and branch pipes into the brake cylinder on each car, pushing the pistons backward, causing the to operatwthe brake levers, and force the brake shoes against the wheels. When he wished to release the brakes, he so shifted the valve as to shut olf the llow of compressed all' from the main reservoir, and to Copen a port or vent· leading from the train pipe to the open air. Thereupon, the compressed air in the brake cylinders escaped into the open ajr,thepressure of the pistons was removed, and the pistons were forced forWard again by means of springs, thus moving the brake shoes amy 'from the Wheels. The vll.1idity of this patent was sustained in Westinghouse v. Air-Brake Co., 9 O.G. 538, Fed. Cas. No. 17,450. The operatioo()fthisplaln brake was open to certain objections. It was too slow, apd" was attended by danger of colllsion in case one part of the train beclUDe detached from the other part. "The next brake to be considered is known as the 'automatic brake,' which appears to have been patented by George Westinghouse, Jr., about 1872 01'1873. It, embodied the addition of an auxiliary rese,rvoir and a to each car. Each reservoir was of sufficient capacity to operate Its brakes once, thus to provide for automatic action in case of accident.. The triple-valve device was located at the junction of connections between pipes leading to the train pipes, the brake cylinder, and the auxillary' reservoir. ,In addition to these three ports, there was a ,fourth port leading to the open air. The operation of this brake was radicll.1ly dilferent from thato! tbe brake. In the former, the compressed all' was stored in the main reservoir until required for the application of brakes; in the latter, the malnandauxiliary reservoirs and train pipe were always,charged, with compressed ,air at working pressure, to prevep,t the appUcation of the brakes. When the engineer wished to apply the automatic brake, he shifted the engineer's valve so as to cut off the flow of compresSed, all' from the main reservoir, and open a port from the train pipe to the open' all'. The etrect of this was to reduce the air pressure in, the ·train pipe, and cause a back pressure from each auxiliary .reservoir ,through the triple, valve, which shifted it so as to close the port from the branch pipe to the train pipe, and stop the escape of alr from the auxillary reservoir, to close the port 'leading from the brake 'cyllnder to' the 'oPen all', and to open the port leading from the auxiliary reservoir, ll.Ud, CO)lnect it with the port leading to the brake cylinder. Thereupon, ",the compressed all' in the auxiliary reservoir fiowed into the brake cylinder, and 'applied the brakes. It will thus be seen that, while the system was operated by pressure from the main reservoir, the 'f;
WESTINGHOUSE AiR-BRAKE CO. t7. NEW YORK AIR-BRAKE CO.
965
latter was operated by withdrawal of pressure. The result was automatic action in case of accidents, whereby air was caused to escape from the train pipe, as by bursting of hose, or the train breaking in two. In such ('.ases the release of pressure operated the triple valve, and automatical'ly applied the brakes. It is necessary here to consider 'train-brake graduation' or 'serviCe stops,' as distinguished from 'emergency stops.' While, for the latter, it may be necessary to admit to· the brake cylinder the full pressure of compressed air, say seventy or eighty pounds, yet, where it is desired merely to slow up without stopping, it may be necessary to admit only, say, ten or twenty pounds, graduating the amount of flow according to the character of service desired. It is important to bear this distinction in mind, because the appliances hereafter to be considered have been !Ilo devised as to provide therefor, and that such graduation shall be under the control of the engineer. .. "The chief objection to this automatic brake lay in the fact that it was not capable of successful operation on long trains of freight cars. '.r4e time consumed by the progressive operation of the brakes between the grip on the first and last car allowed of so much slack motion between them as to cause violent shocks. This automatic brake was publicly tested near Burlington, Iowa, in 1886. The growing importance of the subjeet of automatic freight graduation, the inadequacy of eXisting systems to protect the lives of railroad employes, and the disastrous results therefrom, had become so evident that in 1885 the Railway Master Association arranged for a series of experiments known as the 'Burlington trials.' The Westinghouse Company, and several other companies engaged in the manufacture of brake apparatus, competed at these trials. None qf the competitors succeeded in stopping long trains of freight cars without violent and disastrous shocks. In 1887 the trials were renewed. There were five competing parties, including one of the leading experts for the defendants and the complainant company. The latter· then presented an improved apparatus covered by patent No. 360,070, granted to Westinghouse, Jr., March 29, 1887. The report of the committee of the Car-Builders' Association shows that they considered 'the field for improvement open as wide as in 1886,' and concluded that air brakes actuated by electricity were the only ones likely to be capable of successful operation on long traifis of freight cars. The improved Westinghouse apparatus, while it reduced the length of time between the application of the first and last brakes, produced greater shocks than did the automatic apparatus of the preceding year. In this condition of affairs, George Westinghouse. Jr., set himself to work to obviate these difficulties. Upon the conclusion of the 1887 trials, he renewed his investigations and experiments, and by certain changes and improvements in the old apparatus, and the introduction of new elements, he succeeded in the latter part of the year 1887 in constructing a quick-action automatic brake, capable of being successfully applied to a train of fifty freight cars, and operative under all conditions of practical railway service. On October 1, 1887, he applied for a patent for this apparatus, and on January 24, 1888, the patent was granted. Said patent, No. 376,837, is the first of the patents in suit. Before proceeding to consider in detail the claims of this patent, it should be stated that the following were among the requirements for the practical operation of air brakes: (1) The regulation of the force to be applied to the brake shoes so as to secure ail necessary graduations, from the mere slackening of speed to the service stop, and from the service stop to the emergency stop. (2) The automatic operation of the brakes in case of accident. (3) The practically simultaneous operation of the brakes on each car, so that, in long trains of freight cars, shocks might be avoided. (4) The control of all these operations by the engineer. (5) Certainty of operation under all conditions."
The automatic brake system constructed in general accordance with the invention described in No. 376,837 with all these
<966
.P')
.-r.,
PEDERAJ;.
It wasunq1Jlestionablythe first system which ,the problem., 61t'ltnmediate stoppage of a long til tiineof danger, with and,supplemental -00 and,sQ promptly was its success recog,nizedt'b:at ,125,000 of this kind of brakes were bought and ,used by of, this country within a. period of little more thtt;n Wiee:,y'eai's. tlIerefol'eJD,iportant to unders,tand the natUl'eof the ,lmproveJP.ent :which success. The ,promptness ,with which an automatic air·brake system could be made effectual the proIlip,tness with air pressure in the train pipe could be reduced, and the equalIzatIOn of pressure could be ,cllanged. Beforet4e lileries of in,velltions originated by tlie BurliIigton trials, this reduction had been effected in passenger trains of ordinary by "venting" the traill pipe, or opening a port from 'the trainpipew which was initiated by a turn of the yalveon the lqcomotive. Westinghouse, in liis attempt to efficient andjmp:lediate service upon each car of a long \Tentibg system, so that,when the reduction of train,pipe pressure 4adcOl:nmenced by the turn of the engineer's each l::ar should also vent the train valve,' the triple valve pipe of that car. Each car its own venting 'Jilechanis:rn' and, as the mechanism did its work upon its own 'call, it' hastened the ",qrk upon, the· car next in the, rear. Westinghouse also so,ught tl?isave and (lid save power' by compelling the compressed air ,thU:lilvented to pass into the brake cylinder, instead of into the open air. But sudden and large reduction of pressure is only tob,e'llsed in l.t case of emergency, and there.fore means for be made supplementary to ,the means for the ordinary service of the brakes, so that ordinary and extraordinary use. the brakes can each be made available ,aanecessity arises. Tne method ·No. 360,070 was to make the ordi· ,nary ,range of motion d£!the triple':vmve piston, which was produced bya redLuction of pressllre of a few pounds,do the ordi,nary work, of "brakingl ' a train, and to make an extraordinary range Qfmotion entire length of its capacity for travel, W9.sproduced bya reductioll of 15 or 20 pounds, do the ex,traordinary work which gave. to the brake the name, of "quick action." When the piston of the triple valve moved through the en'tire length which it could tra\Tel, the stem of the piston came in valve, opened it, which "con:tactwith the stem'rof the \W.covered a' port, J,tD.dtbereby the train-pipe pressure was vented 'into the brake cylin(ler. The claims ,of the patent call the first or ordinary range of moti.on of the piston "a preliminary traverse," :,wliich admits air from the auxiliary reservoir to the brake cylinder, . andtbe second range6fmotion "a further traverse," which enables the piston to admit air directly, fr,om the main pipe to the brake cylinder. This invention, palpably and confessedly, lacked success in the Burlington trials. , The reason of, its failure, and its remedy in No. 376,837, are by .Air. Massey, a competent expert for the defendants aM the patentee of the infringing valve, whose
WESTINGHOUSE AIR-BRAKE CO. V. NBW YORK AIR-BRAKE CO.
967
testimony upon this subject is admitted to be correct. upon direct examination, in reply to the question:
He said,
"What is the practical objection, it' any, to the quick-actiQn triple valve of 360,070, and how Is that remedied by the apparatus of 376,8371 Before answering, state what is meant by the 'Westinghouse Quick-Action Automatic Brake.' The term 'Westinghouse Quick-Action Automatic Brake,' as used by Mr. Stone, undoubtedly refeN to the.qulck-action triple valve described In patent 376,837, and Illustrated on sheet 2 of that patent. It Is also the quick-action triple valve which is illustrated in the house catalogue of 1890. In the quick-action triple valve described in 360,070, In addition to the triple valve, the stem of the piston came in contact with an emergency valve, and the extreme motion of the triplevalve piston caused the emergency valve to open a small passage between the train pipe and the brake cylinder; thus causing a local exhaust of the air the train pipe, and therefore reducing the pressure In the train pipe quicker than would be done by the vent through the engineer's valve. The port which was opened by the emergency valve was necessarily restricted in size, as, in order to be effective, the piston of the triple valve must be able to open it within a moderate reduction of tra.ln-pipe pressure, and therefore with but little force In addition to that consumed by the piston In moving the ordinary triple-valve mechanism. If the emergency valve had been arranged to open a very large port, the time required to exhaust the train pipe through the engineer's valve sufficiently to allow the piston to open the emergency valve would be materially increased. This defect in the emergency valve of 360,070 would not be serious In trains of moderate length, as under, say, twenty-five cars; but in the 50-car train used at Burlington in May, 1887, the effect WlUl disastrous. This defect Is remedied in 376,837 by using a supplemental piston to open the 'emergency valve, and actuating that piston by fluid pressure from the reservoir through a passage controlled by a valve which Is actuated by the triple-valve piston. In this case the triple-valve piston has only to open a comparatively small port in addition to Its regular fUDctlon, and fluid pressure In the auxiliary reservoir then causes the supplemental piston to open the emergency valve. The length of time required, in the use of the single valve of patent No. 360,070, to open a sufficiently large port, above referred to, appears to have been In the mind of Westinghouse, in providing a separate piston of the patent In suit to open the emergency valve, for In the description of this improved invention, it will be remembered, he states that 'its object is to facilitate the application of brakes, with great rapidity, and full, or approximately full, force, as from time' to time required, by the provision of means whereby the admission of all' from the brake pipe to the brake cylinders may be effected as directly as practicable, and through passages of as large capacity as may be desired.''' .
No. 376,837 abandoned reliance upon the piston of the triple valve as the means of opening the emergency valve, and used a supplementary piston, contained in a supplementary chamber, and actuated by pressure from the auxiliary reservoir. 'I.'he port through which, when uncovered, this pressure passes, is, in the mp.chanism shown in the specification, uncovered by the excess stroke of the triple-valve piston. The description of the mechanism, which is contained in the next paragraph, is in the language of the opinion in the circuit court; and, inasmuch as the intricate mechanisms of the various devices which are the subject of discussion in thp. three caaes now grouped together were accurately described by Judge 'I.'ownsend. his language will be used, instead of attempting to forumlate independent descriptions of the same series of devices: "This emergency action is secured, in the patent in suit, by means of a separate, supplemental piston and valve, in a SUIJplemcntal valve chani-
9fl8
FEDERAL
berwuelow, the .main valve ot the triple-valve device. 'J;hls chamber connects the train pipe With. the brll.kecylinder, communication between them being regulated by the supplemental valve, opening outwardly, or oownwards, and a check valve opening inwardly, or upwards. These val-vell·· are held upon the seats, under· ordinary conditions, by a spring bearong' 'upon their stems. In the bushing whic,h forms the valve face of the main slide valve are four ports,governed by said slide valve. One of· tbe8epl>rts leads to the brake.cyllnder, two lead to the supplemental valve chamber on the upper or inner side of the supplemental piston, and one1leads to an exhaust port. WhenlUl emergency stop is to be made. the engineer throws his engineer's valve wide open, thereby causing a sudden and 'material reduction of .pressure. ,The excess of auxiliary reservoir pressure',then. forces the main piston .stem against said other stem, overcoming 'the tension of its spring, drives the main piston to the extreme llmitof,itlll stroke, and thereby uncover&the ports leading from the auxiliarY :to the supplemental valve chamber. This pressure drives the supplemental· piston outwardly, or downwards, against the· stem of the supplemental valve, and forces it from its seat. Thereupon, the preponderanceQf train-pipe pressure in the brake pipe opens the check valve, and the air from the train pipe rushes directly from the brake pipe to the brake cylinder. The result of this operation is twofold: It hastens the application of the brakes on the car on which it is operated, and by venting the train pipe 'it hastens a similar reduction of pressure and consequent BimUaroperation in the· next succeeding triple-valve device on the next car. The release of the brakes is accomplished by the admission of air from the main reservoir;"
The three claims which were found to have been infringed are as follows: "(1) Ina. brake mechaJ:llsm, the combination of a chamber or casing, having direct c<mnection tOR bralte cylinder and to a brake pipe, respectively, a.V'alve controlling communication between said connections, and a piston ol'diaphragm which Is independent of and unconnected with a triplevalve pisWn,and is actuated by pressure from an -auxiliary reservoir in direction to impart opening movement to said valve, SUbstantially as set forth. (2) .',['be second cla.im includes a check or nonreturn valve controlling communication between said valve and the brake-pipe passage of the chamber, substantially as set forth. (3) In a brake mechanism, the combination With a triple valve of .a supplemental chamber or casing having passages. leading to a brake cylinder and to a brake pipe, respectively, a suvple)llental piston operating independently of the triple-valve piston, and adapted to impart opening movement to said supplemental valve, and a passage establishing communication between said supplemental piston and an auxiliary reservoir, substantially as set forth."
The vital parts of this mechanism are the supplemental chamber having direct cOnnections to the brake c;ylinder and the brake pipe; the valve, 41,whichcolltrols corumunication between these'connections; the emergency piston, 63, independent and unconnected with the triple-valve piston, and actuated by pressure from the auxiliary reservoir in a direction to impart opening movement to the valve. To these essential parts the defendants would add another,-the particular means by which, in the specification, the emergency piston is actuated,-viz. the excess stroke of the triple-valve piston, which uncovers the port, 61, through which the auxiliary reservoir pressure passes. Upon the scope of the invention the question of infringement depends. The defendants insist that the only invention "resides in the use of an emergency piston, which is open to the exhaust port on one side, and to the brake cylinder on the other side, and which is not subject to operative pressure from the reservoir
WESTINGHOUSE AIR-BRAB;E CO. V. NEW YORK AIR-BRAKE CO.
969
except by the extreme stroke of the triple-valve piston." The assignments of error are confined to this question, and the consequent construction of the first three claims, and to the question of infringement. The defendants' theory mistakes the character and scope ,of the invention, which was another and successful way to accomplish the work designed to be accomplished by No. 360,070, and to be effected upon the same general plan of instantaneous brake-pipe venting, by the new means contained in the supplemental chamber, which have been named. In No. 360,070 the stem of the triple-valve piston directly engaged with the stem of the emergency valve, and consequently its action directly depended upon the movement of the piston. The invention in 376,837 radically departed from this method of actuating the emergency devices, by making a new piston, independent of and unconnected with the triple-valve piston. It was to be actuated by auxiliary reservoir pressure, but the particular means by which this pressure was to be permitted to exert itself, whether continuously, or only when a port should be opened, do not constitute an essential part of the invention. Means must necessarily be shown in the specification, but the identical means or the special devices were not, in the language of Machine Co. v. Lancaster, 129 U. S. 263, 9 Sup. Ct. 299, "necessary constituents" of the inv,ention, either in the specification or in the claim. The skill and mechanical ingenuity of constructors of locomotives can, as will be seen hereafter, in the examination of other patents and of the infringing devices, arrange different details of mechanical construc· tion, by means of pistons, valves, ports, and springs, which, adopt· ing the supplemental chamber system, first conceived and embodied by the patentee, and a kindred, but not precisely the same, mechanical method for the movement of the piston, will accomplish the same result. The patentee was a pioneer, in that he designed, in No. 376,837, a new way to accomplish a desired result, but upon the same general idea which he had unsuccessfully tried to work 'out in the earlier patent. His later patent was the bridge, and not a mere step, which carried railroad car builders from failure to success. It is not important now to determine the grade of its pioneership, and whether it may be classed in the list of those inventions which are of the highest rank; but it was an invention created to achieve great necessities, and overcome great hindrances, and was one of wide breadth. A court would not be justified in adopting "a narrow or astute construction," which should minimize the character of the invention, leave its real scope open to trespassers, and thus "be fatal to the grant." The claims of the patent do not contract the grant to narrower limits than those which the invention, as made by the patentee, actually covered; and the claims, therefore, are not limited to the precise mechanical mans described in the specification, by which the supplementary piston is actuated. They compel it to be disconnected with and to be independent of a triple-valve piston, and to be actuated by pressure from an auxiliary reservoir by SOme means equivalent to the means which are described in the specification. The rule which permits, and indeed compels, courts to give a wide range to the equivalents which a
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I'EDERAL REPOB'lIERJ
broad'k>r pioneer patent can include, is thus expressed inl1iller v. ManJIfacturing Co., 151 U. S. 186, 14 Sup. Ct. 310: "If the invention is broad or.primary in its character,. the range of equivalents will be correspondingly broad, under the liberal construction which the courts gi.:ve'to such inventions." , The defendants use two forms of devices, known respectively in the :CRseas "Defendants' Quick-Action Triple Valve,n and "Defendants' Modi.1led Quick-Action Triple Valve." Each has the supplementary; chamber, with its contents, and in each .the various elementsconfo,rm to the general phraseology of the claims; but in neither do.es the of an emergency piston have any relation to theextr.eme movement of the triple-valve piston, and herein is contaiD.ed what is claimed to be tbeessential. difference between device and the defendants' valves. In the defendants' modified :valve, the pressure upon, opposite sides of the emergency piston, numbered 13, which correspon-ds in function with emergency pistoq,,63; Of the patent, is always :eounterbalanced when quick action: is, not desired, whereas emergency piston, 63, of the Westinghouse valve, is not SUbjected to auxiliary pressure until its action is required;,when port, 61, is uncovered. In the defendants' modifiedvalve, train-pipe pressure is reduced when l:}uick artion is 'wanted; the auxiliary reservoir pressure becomes ,controlling. forces doVtin!emergency valve, 20, which corresponds in function with the Westinghouse emergency valve, 41, and which; when unseated, opens,dire.ct· communication between the train pipe and the brake cylinder: ' This difference. between the. means which are used to actuate the pistons is not of .paten:table importance. The operative features of the invention .which are described. in the three claims are the same, whether auxiliary pressure is permitted to exert itself coIitinuously or inte1'IDittently when a port is opened. The defendants' earlier two pistons. The first, No. 13, is forced down byauxiIiary reservoir pressure, but does not act directly upon the emergency valve. When forced down, "it opens a port, whereby train pressure is admitted to the upper side of the other piston, No. 17, which, being thereby forced down, imparts opening movement to an emergency valve leading to the brake cylinder." It is true that piston,. 131 which is the one actuated by auxiliary reservoir pressure, does Dot, directly and of itself, impart opening movement to the emergency valve, but uncovers a port which admits train-pipe pressureito>the brake cylinder; and it is true that piston, No. 17, is actuated <by thetraiu-plpe pressure thus admitted. These two pistons do the work of the one piston of the defendants' modified valve. Auxiliary reservoir pressure moves the piston, which, through the intervention of piston, 17, imparts opening movement to the emergency valve.' Mr. Massey states the difference between the two valves of the defendant to be that in the "quick-action triple valve the initially operating piston, 13, actuates the emergency valve indirectly,-that il:l to say" through the intermediation of the piston, 17,-while in the oither valve the injtially operating piston, 13, actuatelll the emergency valve directly, as in patent 376,837." This is nota material di:f!ference, of a patentable character, when
WESTINGHOUSE AIR-BRAKE CO. V. NEW YORK ,AIR-BRAKE CO.
971
considered with reference to this patent, and the result is that each of the defendants' valves is an infringement. The qui4;k-action valve infringes the first three claims, while the second form, not having the additional check valve of the second claim, infringes the first and third claims. No. 448,827 will next be considered. The form of automatic ail" brake apparatus shown in this patent was originally included in the application for ,No. 376,837, which also included the form which has been already described, in which port, 61, was uncovered by the excess stroke of the triple-valve piston. But the applicant was precluded by a rule of the patent office from adding to his generic claims a specific claim for the form which is now described in No. 448,827, and therefore a subordinate patent was applied for. The details of the device al.'e described by Judge Townsend as follows: "The alleged invention consists of a valve controlling communication between a supply passage from the train pipe and a delivery passage to th:e open air or a brake cylinder. This. valve is held in position by a spring, so as to close ports .leading to the delivery passage, and not to be from its seat by ordinary reductions of pressure for service stops. There is alS<) a diaphragm and valve stem interposed between the supply passage and a passage to a special reservoir, or an auxiliary reservoir. Said cohtrolling valve is connected to said valve stem. Train-pipe pressure passes through a small passage in said diaphragm into said reservoir, thus equalizing pressure on. the opposite, sides of said Upon a sudden reduction of pressure, sufficient for an emergency stop, the exc('ss pressure on one side of said diaphragm moves it and its valve stem and the said controlling valve. downwardly, so as to open said ports, and allow the compressed air to pass through the delivery passage to the open air or brake cylinder."
The two claims of the patent which are said to have been infringed by the defendants' two valves which have been before described are as follows: "(1) In a fluid-pressure brake apparatus, normally operated by a triplevalve device, the combination with such an apparatus of a valvula, appliance baving a casing provided with supply and discharge passages or connections, and a valve controlling an exhaust port from the supply passage to the discharge passage for quickly releasing pressure in the supply passage, said valve being actuated to open the exhaust port by a greater than normal reduction of pressure in the supply passage independently of the action of the triple-valve device, substantially as set forth. (2) The combination with a triple-valve mechanism of a discharge valve controlling an exhaust port from a supply passage to a discharge passage for quickly . releasing the pressure in the supply passage, said valve being actuated to open the exhaust port by fluid pressure in an auxiliary reservoir on reduction of pressure in the supply passage below the normal degree, in whatever position the slide valve of the triple-valve mechanism may be brought by such reduction, substantially as set forth,"
Infringement of these claims is admitted, and the only question is in regard to their validity. The distinctive feature of the alleged invention is that the emergency valve is actuated to open the ex-, haust port "independently of the action of the triple-valve device.". The theory of the complainants is that, whel.'eas the leading characteristic of novelty in patent No. 376,837 is the "utilization of auxiliary reservoir pressul.'e operating a supplemental piston in proper dirlfc' J
972
I'BDERAL REPORTER;
tions.tobnpart opening movement. to the emergency valve," the inventioDoj 1fo. 448,827 was the means of imparting movement to the valve by pressure, so applied that the action or nonaction of the triple-valve piston shall be eliminated as an element of control," and that its distinctive feature was "the removal from the apparatueofall obstructive mechanical connection between the triple piston and emergency valve, whereby the latter may be impeded in its movements by the former." This theory omits an important characteristicof the novelty of No. 376,837, which is the independency and disconnection of the supplemental piston from the triple-valve piston. In the form left in the application for the patent, after the divisional application was made, there was no mechanical connectionbetween the two,pistons; but the stroke of the triple-valve piston exercised a control over the movement of the supplemental piston, by uncovering the port which admitted auxiliary reservoir pressure. The form in 448,827 permits, as do the defendants' val ves, auxiliary reservoir pressure to be present at aU. times, and to act upon the piston, but counterbalallced during ordinary service stops. It was inclUded in the generic claims of No. 376,837, and, in view of those claims, no invention could consist in the mere fact of the elimination of the action of the triple-valve piston as an element of control. When the patentee obtained the broad claims of No. 376,837, heexhansted his powers to obtain additional patents for mere modifications of means by which the piston should be made independent of the triple-valve piston, unless the modification contained a patentable improvement upon the form disclosed in that patent. For any new and useful improvement which contained also the element of invention, or for a separate invention, a subordinate patent c()uld be obtained. Were the changes made in 448,827, after the idea of 376,837 had been embodied in its original form, the work of invention? So far as the first two claims are concerned, the changes consisted in a, port from the auxiliary reservoir to one side of the emergency piston, which port was always open, and the counterbalance to by a spring on the opposite side of the piston, so that ordinary variations of pressure would not destroy the equilibrium necessary to be maintained until excessive reduction ofwessure should take place. In view of the various forms and modifications and impl,'Ovements of automatic brakes and brake mechanism which had been made known before the date of this in'V'ention, and· which are a' part of the record in these three cases, there was no patentable invention in .this modified form, apart from the invention l;lb,own in No. 376,837. ,It was simply What the patentee first deemed it to be,-a form of the invention of that patent and covered by it. Thefirst two claims of No. 448,827 contain no patentable bnprovement upon the form specifically described in the chUms of its predecessor, and are "toid. We omit any description of the othel" 'grounds upon which the invalidity these claims is placed by the defendants. , No. 393,1&:'.rhis patent is SUbordinate to 376,837. The device which has the supplemental chamber, with the emergency pistori'and valve, and the important elements of the Westing-
WESTINGHOUSE AIR-BRAKE CO. V. NEW YORK AIR-BRAKE CO.
973
house patent, except that the emergency valve is moved by trainpipe pressure, instead of by auxiliary reservoir pressure. "This result was accomplished by providing a separa.te emergency piston and valve, ordinarily exposed to train-pipe pressure above said piston, which pressure served to hold the valve on its seat, and was not affected by ordinary .reductions of pressure for service stops. But the considerable reduction of pressure necessary for an emergency stop carried air from the train pipe to be vented into the space below said piston, equaliZing the pressure on both sides, and acting on the under side of said valve, causing it to be unseated, and to thus allow the train-pipe pressure to be vented directly into the cylinder."
The claims said to be infringed are as follows: "(1) In a brake mechanism, the combination of a valve controlling the direct passage of pressure from a train-pipe to a brake cylinder, apistpn connected to said valve and actuated wholly by train-pipe pressure, and a valve controlling the train-pipe pressure on the piston for opening and closing the communication between a train pipe and a brake cylinder through the direct action of train-pipe pressure, substantially as specified. (2) In a brake mechanism, the combination of a train pipe, a brake cylinder, an interposed chamber communicating with the train pipe and brake cylinder, a piston in said chamber, a piston stem, a valve on the piston stem controlling the passage from the interposed chamber to the brake cylinder. and a controlling valve and passages for the admission of pressure from the train pipe to move the piston and open the valve, substantially as and for the purposes specified."
The emergency piston, 13, in the defendants' modified valve, is actuated wholly by reservoir pressure, and this valve is therefore not claimed to be an infringement. The emergency piston, 13, in defendants' quick-action valve, is forced down by reservoir pressure, but when it is pressed down it causes train-pipe pressure to be admitted, which acts upon and presses down piston, 17, whose spindle presses upon and unseats the emergency valve. Inasmuch as the valve is disconnected from piston, 17, it is returned to its seat when train-pipe pressure is removed from the upper side of the piston, mainly by the elastic force of a spring. This patent is a subordinate one, and must receive a narrow construction.' It is not permissible to give to the terms of a patent of that class so wide a sweep as to include the various devices which may actuate an emergency valve in a supplemental chamber by train-pipe pressure, and the range pf its monopoly is a limited one. The language of each claim indicates that a connected valve and piston were to be employed, and method of opening and closing the valve required that they should be mechanically connected. A mechanical connection would not be indispensable, unless there was a necessity for it, or unless a m,eehaniCal separation created a difference in the means by which tbe result was accomplished, which, in view of the narrowness of the invention, was a radical difference. The Park piston holds the valve to its seat, in the normal condition of pressure. It is lifted up when the valve is lifted by train-pipe pressure, and, when extraordinary pressure is removed, it re'stores the valve to its seat. It does not U!J1seat the valve. The defendants' piston does not hold the valve to its seat, and does not restore it to its place. When train-pipe pressure comes upon the upper side of the piston, and forces it down, it unseats, the valve; and after pressure has been removed the spring, as it resumes its shape, returns the valve to its seat. The differ-
974
J'EDERAL REPORTER,
eJice:in,tlie way iil which the ,two pistoU!saccomplish' the general result would "not be a substantial one ina primary patent. It is $ubliltll'ntiaJ" with respect to an, invention which merely ,substitutes for the reservoir pressure which WestThe circuit cOlirtproperly held that neither claim was intr'lPged. ' " ' ' No., 172,064: The invention of this patent was an improvement ,improvement patented to Mr. by patent No. 168,359, 'and was a part of the brake apparatus used before the invention of the quick-action brake.' It related to the direct admission of air from the brake pipe to'the brake cylinder. The defense that the defendantSl1se the original'and not the later improvement was ,The peculiarity' of the patented invention and used by the defendants is shown in Judge Townsend'sdescnption, as follows: provides. for a pist0n,and slide valve so arranged that air '1)1'eSSure pipe, sb:all pass on the under llide"of ,the piston, lUid hold lt in an upward position, and thence passthrou«b' a side port in 'the piston-valve'; case, and certain other ports the auxiliary 'reservoir.' 'The effect of this pressure Is to valve in position above ;two connected ports,-one leading to the 'bi'lLke cylinder, the other to the open 8.11',,,:-so that any pressure in the brake cylinder will escape to the open all', and the brakes will be o,l'J'. When is redUc¢ln order 1x'l; the brakes, the back pressure from 'the auxiliary reservoir depreSses ,said pi'!ltonso that it pa..qses down, the supply ports and shifts the slide valve, $0 as to open the port 'leading ,to the brake cylinder, and exposes it to aUXiliary reservoir pressure, 'a.Ildso "as to close.theport leadirig to the open, all'. In patent No. 172.0Md:J1e inventor with said, side port in the valve case, and tp.ea:efor aport through the piston itself." 'Jihe piston was so arrangecl,' incQn.nection, with this port, that said port could be opened or closedwitbout 'i:tloving the slide valve.' This was accompliShed by having the stem of:,:the, piston fitted to, the port in the piston,so that it would close thej;lOrt, When moved illto it, and 9pen it when removed, and by further pr()vid1ng that the slide valve ,should be made. slwrter than the distance the collars' on its stem, thus insuring the necessary slack motion for Closing ,the supply port before the slide valve begins to move. Claim 3 is as follows: '(3) 'The slide valve. H, made shorter than the di$tance its end bearings, in combination with, the port, s, and arranged wIth reference to the operation of the valve, stem, tI, while the s, is closed, sUbstantiltlly as set forth.' Defendants' device,as Ultistrated by ,'Defendants' Plain Triple Valve,' contai)ls the slide valve, made' shorter than the distance between its end bearings on the It is also provided witb.two ports, one of which leads from the trlLlnpipe through the piston chamber, and by other passages to the aUXiliarY ,reServoir. The other port leads from the auxiliary reservoir to the brltkecylinder. This pott is closed by haVing the end of the piston stem slide and covel' it, like a valve upon its ,Seat. There is no port thrQugll ·. defcI,ldants' piston. and consequently lio, pfston stem fitted to enter
The clditri:i$ f(l)r the valve made f;lhorier than the distaIice between its bearifigBwith'the speci1ied improvements upon 168,359, viz. the air port through the piston, 'which is o}jenedand closed by the stem. The effect of 'th!i:i!larrangement is stared in the specification as follows: . "The port's, whlbe closed before tM valve,H,begins to move for apbe kept dosed Uhtii the valve, H, shall have plying the been 'brought back to ;the proper position for a full 'release of the brakes.
WESTINGHOUSE AIR-BRAKE CO; V. NEW YORK AIR-BRAKE CO.
975
Consequently, the valve, E, can be operated as may be desired in applyip.g and releasing the brakes, and in graduating the brake pressure, without leakage or loss at, the air-supply port, s, and with such port always closed."
It is undoubtedly true that the two devices accomplish the same result, and close the supply port before the valve begins to move; but infringement can only be found by giving a construction to the third claim which disregards the fact that No. 172,064 substitutes the air port, s, with its plug, c, for the side port of 168,359. The conclusion which the circuit court reached was the correct one. It was stated as follows: "Inasmuch as complainants claim a combination which contains a port through the center of a piston, described as substituted for a side port, with which said improvement dispenses, and as defendants' device depends upon the use of a side port, and has no ,port through the piston, but is made up by a combination of different elements, which are admitted in patent No. 172,064 to be a part of the prior art, the ccmbination claimed in claim 3 'of said patent is not infringed. A correct construction of the claim must inclujde the port through the center of the piston, substituted for the side port of patent No. 168,359."
The invention of No. 222,803 was an engineer's valve, which, speaking in very general terms, should by the movements of a single or lever, admit, and automatically stop admitting, fluid pressure to the brake pipes, by means of a charging valve, automatically retain such pressure, and permit its escape by an exhaust valve, with' means for automatically closing either valve when the desired pressure had been charged irito or withdrawn from the train pipe to which the device was connected. The patentee summarized, in liis specification, his invention, as follows: "It will now be seen that I provide for operating both the supply and the eexhaust valves by a single stem: that only one can be opened at once; that either may be opened separately (much or little); and that both may be simultaneously and automatically, and kept closed, whether the brakes are <In or off." ,
This automatic closing of the charging and exhaust valves was a very important part of the invention. The patented valve, so far as the second, third, and fourth claims are concerned"Consists of piston case containing a piston governing a charging valve h\lld up to its seat partly by fluid pressure and partly by a spring, and an escape valve held down to its seat partly by gravity and partly by a preponderaJ/.ce of fluid pressure on its upper end. This governing piston is exposed on its under sIde to fluid pressure, and on the upper side to pressure from a spring. .A screw stem worked by a crank arm is so arranged, in connection with sl!-Id spring, that by the revolutIon of the crank arm the downward pressure, of said spring upon said piston is increased or lessened. The effect of such change of pressure is to cause the piston to be moved upwards or downwarps, according as it is acted upon by an excel;ts of fluid or of spring pressure, and to open or close the charging and escape valves. Beneath the lower end' of the escape valve, provision is made for a certain amount of slack moti\>n, so that the governing piston may be moved up or dvwn for a short distaIjlce without unseating the escape valve. The effect of this arrangement is, to prevent the possIbility of both valves being open at the same time. The operation of said apparatus is as follows: In order to apply the brakes or to open the charging valve, the crank arm is screwed down, and this increlilse of pressure, transmitted through the stem of the piston head to the chal'ging valve, unseats it, and permits fluid pressure to pass from the boilC'r or :storage reservoir to the train pipe and brake cylinders. The fluid pressure
·
976
J
vol·.63.
also passes npward .to the space below the piston head, and exerts the same pressure upon it liS in the.train .pipe or brake cylinders. The .engineer knl!Jws, from his engineer's. gauge, .just how far to socew down, his crank.. so that when the necessary amonnt preSsure hM passed through to the train pipe or brake cylindet the same pressure will automatically lift the piston and close the charging valve. The'crank arm is screwed up in order to open the escape valve, and after the proper amount has been discharged the escape valve automatically closes in the. same way as already shown in the case of the charging valve,"
The three claim!! which the circuit court found were infringed are as follows: "(2) AS. a means for autom,atically cutting off. the fluid-pressure supply when the desired pressure has beeu charged into the brake cylinders, a piston head, P; movable j;)y the operative brake pressure or any excess thereof. in the valve and a connection from one to the other, substantially as set whereby such movement of the piston head result in the automatic closing of' the charging valve,. substantially as set forth. (3) The combInation of piston head, charging valve, Interposed stem, and escape valve, substantially as set forth with reference to the opening and closing of the charging valve, without necessarily opening the escape valve, substantially M set forth. (4) The combination of piston head, charging valve, interposed stem, escape valve, and a single operating stem, adapted by. independent connections with both valves to shift both by Inde>pendent, successive motions; substantially as set forth."
The defendants' valve has a single lever, which is moved from side to side by .a single handle having a reciprocating motion. The val i'e has also. a piston exposed to fluid pressure on both sides, which concharging and an escape valve, which performs the same functions as in the patented valve. "The main lever, which is fMtened to said handle, carries an eccentric pin, passes through said lever, and which moves in the arc of a circle. The rlglltehd of lever is held stationary by a jaw and fulcrum pih; the left end, when said: handle ismQved to the right, is lifted by the rock-shaft motlo.n imparted by .said pln,an<l strikes against another pin attached to the escape valve, and raises and opens said escape valve. This lever has also an upper jaw, which moves in a pin attachc<l to a bell-crank lever, the arm of· which is directly benelttb the charging valve. In order to open this valve, the.handle ism{lved tj) the left, which causes the main lever· and pin to move to the left, andto raise the arm of the bell-crank lever and open the charging valve. Provision is made for slack motion by a space between the top Of the escape valve and said pIn attached thereto, whereby the left end of the main lever Is permitted to have a certain amount of play before it strikes sald pin."
In addition to fluid pressure, the piston is "acted upon from below by bent with vertical arms, connected by lever, which second lever is conlinks't() the piston and to nectell.witp a light spring." . An atteJ:llpt was made. in the testimony to claim that the patented valve lacked novelty, or that its descent could be traced from patents .No.128,015, dated iJ'itly 16, to &, Cairns, and No. 141,· 685 dated Augus;f.,102, 1873, to George Westinghouse, Jr. The Fay &Oairns patent was for· an apparatus for regulating the flow of water in houses,' and shutting it off when there is an excess of pressure, so as to prevent the bursting of pip,es. The Westinghouse patent was for. a triple valve, lmd it was admitted in the course of the testimony that the patent described nothing designed for
AIR-BRAKE CO. V. NEW
AIR-BRAKE CO.
977
or capable of performing the functions of the engineer's valve. Fay & Cairns invention was a pressure regulator, contained no exhaust valve, and could not be an engineer's valve. The idea that either of these patents anticipated or restricted the patentable character of the whole invention is not now entertained. The defendants are, however, of opinion that No. 141,685 is an anticipation of the second claim. The importance of this suggestion will be considered hereafter. The invention, as a whole, is thus conceded to be without a predecessor, and the importance of an invention by which botl! valves could be automatically closed upon the desired amount of pressure being charged into or exhausted from the train pipe is manifest. The object of the defendants' valve is, by the movemeIj.t of a single handle, to accomplish the same results which the patented,valve attains; and it is conceded that the valve has a piston head movable by operative brake pressure, or any excess a charging valve, an escape valve, and interposed connections, SO arranged that the charging valve may be opened and closed without necessarily opening the escape valve, a connection between the pil'!ton head and charging valve, consisting of a bell-crank lever, a pin and lever, and a projection on the piston head, and that by reason of this connection a movement of the piston head under the operlltive pressure, or any excess thereof, will result in the closing of the charging valve. But it is contended that the second claim of the patent is void by reason of the Fay & Cairns patent; that the defendants' valve has not the interposed stem of the third and fourth claims, because the motion of the complainants' piston always acts through the stem to open the valve; that the defendants' piston dres not open the charging valve, as required in the third claim, and does not open either valve, except only that the pin carried by its piston is the fulcrum of the lever when the escape valve is opened, whereas neither of the valves in 222,803 can be opened except by moving its piston, and therefore that the true construction of the third and fourth claims is as follows: In regard to the third claim: "The combination of a piston for opening and closing two valves by reverse motions of the piston; those valves; and a part interposed, whereby the motion of the piston in one direction from its position with both valves closed opens one of the valves, and its return motion allows that valve to close, while its motion in the opposite direction opens the other valve, and Its return motion allows that valve to close."
In regard to the fourth claim: "The above combination, with the addition or a sIngle handle, by means or which the engineer can vary the pressure on one side of the piston."
The second claim of the'patent contained the case provided with a piston chamber and valve chamber in addition to the three elements which are specifically named. , The Fay & Cairns patent was a water-pressure regulator. The specification says that it consisted of a hollow cylinder attached to a valve, and communicating at one end with the water pipe into which the water flows through the valve. In the cylinder is a piston whose rod is connected to the valve. A coiled spring is v.63F.no.7-62
thepiston j under suchtellslon as to hold the valve open tllltil the pressure becomes too great:for the pipe beyond the valve, "wheat)je. water the piston closes the, valve, and keeps it· closed.. until the pressure on the piston and in the pipes falls below the power of the when it will open the valve cylinder. There ieno exhaust valve, but claim 2 does not include an exhaust valve, and the valve ieconnected with the piston, whereas in No. 222,8Q$ the charging "'alve is closed by a separate spring; but this is thought ,by the defendants to be immaterial in a structure not having an exhaust valve, "the purpose of separation being to permit a further upward movement of the piston so as to open the exhaust valve after -the charging valve has been seated." The needs of a water-pressure regulatM to be attached toa water pipe which conveys water into a houl1le, and an engineer's valve, in which there must pea charging and· an escape valve, are 'Very different. In anengihMl"s'valve, opened by a single stem, theeharging valve must be separated from the piston, or the device would be useless; and it is po answer to the validity of the claini to say that some other regulating -deVice was operated by adiffe'rent arrange· ment of valve and piston,'which, though it might come within the general of that claim, would be useless in the device which wail of the patent. The great dissimilarity in form and apP'earance between" the patented _valve and the defendants' valve tendsito confuse-the mind when the question of theinfringe· mentofthe thii'd' and fourth claims is first looked at. The defendnot arranged in the same axial line. ants' Motion. is not comniunicated to the piston in an endwise direction, but Ia.'series of bell-crank levers, which at first seem to be a different system from that of the patent A closer that the series of operations in the patented va:l'VEf'isJ substantially reproduced in the defendants'valve by like instrUmentalities. It is not denied that the ddendants' valve has a series of levers and pins, whicb may be called an "interposed stem," and which communicate motion somehow; but it is said that its pistooand its stem' do not correspond with these elements in the thirda)),&fourth clai.pts, mai.nlybecause in the Westinghouse device the' ¢9,tion _ the piston acts. through the stem to push the of valve open,. land; the defendants' piston does nothing to open either valve. It is true that in the Westinghouse valve there is a direct connection between the piston and the charging valve, and that the movement Qf.the piston opens the valves, and that in the defendants' valve, the charging valve i·s opened by the manual movement of the hal}dleand lever, 49, and the piston at the time remains stationary.By the subseqtient movement of the piston, when sufficient trtdn''Pipe pressure has been admitted, the cJJ,arging valve is closed aut()matically. It \S also said that the defendants' pistoo does not tM escape valve, except that the pin carried by piston is lp.¢ fulcrum of the lever when the escape valve is opened. This be -considered as true, but it should also be said that there is an upward movement of the piston before the valve is opened. AS' explained by Mr. Barnes, for the complainant, the
ACCUMULATOR CO. '11. EDISON ELECTRIC ILLUMINATING
co.
979
movement of the handle to the right raises the fulcrum of the lever, which imposes upward pressure upon the piston. It moves upward until the elastic resistance below the piston is reduced so much that the train-pipe pressure on top of the piston can lift the escape valve by means of the lever known as "43." If the third and fourth claims require that one or both valves must be both opened and closed, by the motion of the piston, and that the interposed stem must move with the piston to open one or both valves', then there is no infringement The third claim, for example, is for the combination of piston head, charging valve, interposed stem, and escape valve with reference to the opening and closing of the charging valve. As the invention did not consist in the particular way in which the elements of this combination co-operated, in reference to the mere opening of the valve, and as the language of the claini is not limited to anything more narrow than the actual invention, the construction which the defendants seek is not necessary. The only question is whether the differences which have been stated, and which are in substance the difference between the direct action in the patented device of the piston, through the interposed stem, in opening the valves, and the action of the bell-crank lever, pin, and lever, which are the interposed stem of the defendants' device, constitute such a departure from the means which the patentee used and described as to constitute new and different means, which escape a just charge of infringement. The question of infringement is controlled by the principles restated in Machine Co. v. Lancaster, 129 U. So '263, 9 Sup. Ct. 299, and confirmed in subsequent and recent cases (Miller v. :M:anufacturing Co., supra), and which makes these actual differences, which would be important in a subordinate patent, unessential when a patent for a pioneer invention is under examination. If such differences should be regarded by courts as essential, when the claims do not make the specific devices essential, patents for pioneer inventions would ordinarily have but little value. All the decrees of the circuit court in case No. 4,976 and in case No. 4,977, which have been appealed from, are affirmed, with costs of this court. The interlocutory decree of the circuit court in case No. 5,315 is reversed, with costs of this court, and the cause is remanded to that court with instructions to dismiss the bill, with costs of that court. ACCUMULATOR CO. v. EDISON EIJECTRIC ILLUMINATING CO. OF NEW YORK. (Circuit Court, S. D. New York. October 8, 1894.) 1. PATENTS-PROCESS AND PRODUCT-INFRINGEMENT -SECONDARY BATTERIES. Reissue No. 11,047, of the Swan patent for a secondary battery, in which the active material is packed in and confined to perforations extending through the plate, is a patent for a product, and not for a process; and hence infringemoot is not avoided by arranging pastilles or buttons of the material in molds, and then casting the plate around them, instead of first making the plate, and then packing the material in the· perforations.