To these ends this invention consists of the piano casing and of the combinations of parts therein, as hereinafter described, and more particularly pointed out in the claims at the end of this specification.

In the accompanying two sheets of drawings, Figure 1 is a sectional view of sufficient parts of a piano casing to illustrate the application of my invention thereto; and Fig. 2 is a perspective view of the controlling levers, showing the fall-board swung down into position to permit access to the levers.

In equipping a piano case with controlling levers for the automatic playing I arrange them above the ledge of the keyboard, and the ends of the controlling levers extend out into a recess which is normally closed by a small fall-board or swinging cover and which fall-board when opened forms a ledge for guiding the hands of the user in the lateral movement of the levers. The piano casing, as usual, has a keyboard ledge or board L.

The controlling levers are preferably arranged underneath the piano keys and are ordinarily concealed from view so that there will be no indication on the exterior of the piano that the piano is provided with automatic playing attachments.

As shown in Fig. 1, the keys K are located above the ledge or board L. Below the keys are the controlling levers C, which extend forward so that their front ends are located in a hollow key slip or recess of the keyboard ledge. As shown most clearly in Fig. 1, this recess has an inner stationary member S and can be opened and closed by an outer member in the form of a pivoted or rockable cover or fall-board F.

When the lower fall-board F is closed, as shown in Fig. 1, it constitutes, in effect, part of a continuous rail coöperating with the fall-board or key cover E, while when the small fall-board F is swung down or opened, as shown in Fig. 2, about its pivot, which is preferably lower than the ends of the levers, it forms, in effect, a supporting ledge for guiding the lateral movement of the hand of the operator when shifting the controlling levers.

I am aware that changes may be made in applying my invention to piano cases of different styles and proportions. I do not wish, therefore, to be limited to the construction I have herein shown and described; but

What I do claim, and desire to secure by Letters Patent of the United States, is:

1. The combination of a piano casing, controlling levers for automatic playing attachments with the ends of said levers below and in front of the piano keys, and a fall-board or swinging cover for concealing said levers mounted to swing on a pivot located lower than the ends of said levers.

2. The combination of a piano casing, controlling levers for automatic playing attachments, and a pivoted fall-board or rockable member which, when in normal position, conceals the controlling levers and forms part of the ledge or rail which coöperates with the key-cover and which when open, forms a ledge or support for the hand of the operator.

3. The combination of a piano casing, controlling levers for automatic playing attachments, located below the piano keys and having their ends extending forward into a recess or opening in the key rail or ledge of the casing, and a

pivoted fall-board, which, when in normal position, conceals the controlling levers, and forms part of the ledge or rail which coöperates with the key cover and which, when open, forms a ledge or support for the hand of the operator.

4. In an automatic combination-piano, a recessed or hollow key-slip composed of an inner member and an outer movable member; in combination with the key-bed, manual keyboard, and expression manipulatory devices, having their terminals beneath said key-slip.

5. In an automatic combination-piano, a recessed or hollow key-slip comprising an outer rockable member in combination with the manual keyboard and expression-manipulatory devices having their terminals beneath said keyslip, said rockable member being adapted to swing outwardly under said manipulatory devices.

Outside the record, which consists of bill, patent, demurrer, ruling, and decree, appellees call our attention to patents, articles on pianobuilding and cabinet-making in encyclopedias, photographs of old paintings, histories of musical art, and catalogues of museums and world expositions.

Mr. Russell Wiles, Mr. P. C. Dyrenforth, Mr. Joseph A. Minturn, and Mr. Frank W. Woerner for the appellant.

Mr. Frank F. Reed and Mr. Edward S. Rogers for the appellees.

Before BAKER and KOHLSAAT, Circuit Judges, and WRIGHT, District Judge.

BAKER, Cir. J., (after stating the facts as above):

(1) I. Is the exhibited patent inevitably void by reason of facts within judicial notice?

In Lange v. McGuin (177 Fed. Rep., 219; 101 C. C. A., 389) this court said:

The office of a general demurrer to a bill is to test the legal sufficiency of the averments to state a good cause of action in equity. Of course, a demurrer may be addressed to a bill for infringement of a patent as well as to any other bill. And, though the bill be in due form and complete in all its parts, yet, if the exhibited patent be inevitably void either on its face or by reason of matters of universal knowledge, the demurrer should be sustained.

Bills in patent causes and demurrers thereto are not so unique that they are exempt from the general principles and rules of equity pleading. And therein it is not the province of a demurrer to speak of matters beyond the bill. Of course, every bill is written against the background of common knowledge; and in that view a demurrer may be said to invite the chancellor to take judicial notice of the background. But if a bill, in and by its own averments, states a prima facie case, that case cannot properly be overthrown by the chancellor merely on the ground that he judicially knows of facts that would support an answer. His judicial knowledge must go farther, and be so broad and all-embracing that he can properly hold that no facts exist that would tend to controvert the supposed answer and support a replication and the bill. This is so because, if such facts exist, the complainant is entitled to a hearing

where he can present and argue the facts, and such a hearing cannot be had on demurrer to the bill.1

As a general formula it is said that courts will treat as evidence "facts of universal notoriety," "facts that may be regarded as forming a part of the common knowledge of every person of ordinary understanding and intelligence;" and that for the purpose of "refreshing the memory" reference may be made to "standard publications." Public libraries and museums are open to all. But is every book a standard publication? Is everything in a standard publication true? If true statements were somehow marked for immediate identification, would all of them be known to the person of ordinary understanding and intelligence? Is there nothing in accessible records and memorials that is rare, curious, not commonly known? But we find it unnecessary to inquire how far, if at all, appellees have been flattering the common knowledge, for, if every item be accepted as evidentiary, we are nevertheless unable to draw therefrom the finding of ultimate fact which, under the rule stated in Lange v. McGuin, would be necessary to defeat the patent.

Two classes of matters are brought forward, general publications and patents.

All that we learn from the words and pictures of the publications is that in ancient desks, cabinets, and casings of musical instruments

1 Brown v. Piper, (C. D., 1876, 464; 10 O. G., 417; 91 U. S., 37; 23 L. Ed., 200;) Slawson v. Grand St. R. Co., (C. D., 1883, 313; 22 O. G., 99; 107 U. S., 652; 2 Sup. Ct., 663; 27 L. Ed., 576;) Richards v. Chase Elevator Co., (C. D., 1895, 392; 71 O. G., 1456; 158 U. S., 299; 15 Sup. Ct., 831; 39 L. Ed., 991;) Risdon Locomotive Works v. Medart, (C. D., 1895, 330; 71 O. G., 751; 158 U. S., 68; 15 Sup. Ct., 745; 39 L. Ed., 899 ;) Kaolatype Engraving Co v. Hoke, (C. C., 30 Fed. Rep., 444;) N. Y. Belting & P. Co. v. N. J. Car-Spring & Rubber Co., (C. D., 1893, 172; 62 O. G., 589; C. C., 30 Fed. Rep., 785;) West v. Rae, (C. C., 33 Fed. Rep., 45;) Eclipse Mfg. Co. v. Adkins, (C. C., 36 Fed. Rep., 554;) Buckingham v. Iron Co., (C. C., 51 Fed. Rep., 236;) Wall v. Leck, (C. D., 1894, 457; 68 O. G., 1273; C. C., 61 Fed. Rep., 291;) American Fiber-Chamois Co. v. Buckskin Fiber Co., (C. D., 1896, 357; 75 O. G., 833; 72 Fed. Rep., 508; 18 C. C. A., 662;) Caldwell v. Powell, (C. D., 1896, 625; 77 O. G., 1272; 73 Fed. Rep., 488; 19 C. C. A., 592;) Strom Mfg. Co. v. Weir Frog Co., (C. D., 1896, 618; 77 O. G., 1125; C. C., 75 Fed. Rep., 279, and Id., 83 Fed. Rep., 170; 27 C. C. A., 502;) Conley v. Marum, (C. C., 83 Fed. Rep., 309, and Id., 84 Fed. Rep., 990; 29 C. C. A., 680;) Lappin Brake-Shoe Co. v. Corning Brake-Shoe Co., (C. C., 94 Fed. Rep., 162, and Id., 99 Fed. Rep., 1004; 40 C. C. A., 215;) Higgin Mfg. Co. v. Scherer, (100 Fed. Rep., 459; 40 C. C. A., 491;) Beer v. Walbridge, (100 Fed. Rep., 465; 40 C. C. A., 496;) Richards v. Michigan Cent. R. Co., (102 Fed. Rep., 508; 42 C. C. A., 484;) Fowler v. City of New York, (C. C., 110 Fed. Rep., 749;) Milner Seating Co. v. Yesbera, (111 Fed. Rep., 386; 49 C. C. A., 397;) Mahler v. Animarium Co., (111 Fed. Rep., 530; 49 C. C. A., 431;) Chinnock v. Patterson Tel. Co., (112 Fed. Rep., 531; 50 C. C. A., 384;) Hocke v. New York Central R. Co., (C. C., 117 Fed. Rep., 320;) Drake Castle Pressed Steel Co. v. Brownell, (123 Fed. Rep., 86; 59 C. C. A., 216;) American Sales Book Co. v. Carter-Crume Co., (C. C., 125 Fed. Rep., 499;). Brunswick-Balke-Collender Co. v. Klumpp, (C. C., 126 Fed. Rep., 765;) General Electric Co. v. Campbell, (C. C., 137 Fed. Rep., 600;) American Type Founders Co. v. Damon & Peets, (C. C., 140 Fed. Rep., 715;) Kuhn v. Lock Stub Check Co., (C. C., 157 Fed. Rep., 235, and Id., 165 Fed. Rep., 445; 91 C. C. A., 389;) Southern Plow Co. v. Atlanta Agricultural Works, (C. C., 165 Fed. Rep., 214;) Victor Co. v. Hawthorne, (C. C., 168 Fed. Rep., 554, and Id., C. D., 1910, 435; 157 O. G., 1002; 178 Fed. Rep., 455; 101 C. C. A., 439;) Neidich v. Edwards, (C. C., 169 Fed. Rep., 424;) Westrumite Co. v. Commissioners, (174 Fed. Rep., 144; 98 C. C. A., 178;) Charles Boldt Co. v. Nivison, (194 Fed. Rep., 871; 114 C. C. A., 617;) International Mausoleum Co. v. Sievert, (D. C., 197 Fed. Rep., 936.)

it is common to find recesses concealed by covers that slide or are variously hinged. The precise and limited combination of the patent in suit is not found. This combination is restricted to a piano that can be played both manually and mechanically, and has to do with an instrument that in form and mechanism has wholly developed since the ancient cabinet-makers were at work.

Eighteen patents are cited. Half of these, by reason of their dates, would be eliminated as evidence of a defense if appellant on rebuttal should carry Welin's date of invention back to the beginning of the two-year period prior to his application. That is, patents and other publications since July 20, 1902, may be overcome by evidence which, if it exists, cannot be noticed except from proofs duly introduced, and which judicial knowledge or foreknowledge cannot say is non-existent.

Among those that antedate July 20, 1902, we find none that in terms or apparent scope is exactly anticipative of Welin's combination. So the question would be whether the disclosures were so suggestive of the new modifications and constructions of Welin that mechanics skilled in the art of building combination-pianos would, or could when called on, at once adopt the suggestions, or whether there still remained room in the art for the exercise of the inventive faculty in producing the Welin device. If these prior patents be taken as proving that common knowledge includes the facts, that, at the date of Welin's production, combination-pianos were old and that various attempts to improve the location and relation of parts had been made, they do not afford the special knowledge necessary to determine whether the paper attempts in fact advanced the practical art; whether the mechanical relations between the parts necessary for manual playing and the parts for mechanical playing rendered the Welin construction difficult, if not seemingly impossible; whether mechanics skilled in the practical art had long and vainly striven to achieve the Welin result; and whether, if all the evidence respecting the art, both paper and practical, left the presumptive validity of the patent wavering in the balance, the device filled a special need, met with prompt and great success, and was recognized as a meritorious invention by those specially skilled and interested in the art, either by their keeping away from the patent, or by their paying royalties for its use.

In this case no one thing among those of which we are asked to take judicial notice squarely anticipates Welin's combinations. Though all the elements may be old and may have been variously combined, a new combination of them may involve invention. Granting that appellees' showing and argument, in the absence of other evidence, might justify a finding that the defense of want of invention was sustained, we cannot find as a fact that judicial knowledge

extends to the point of knowing that appellant can produce no competent and relevant evidence in support of the patent's presumptive validity and in antagonism of the inference of ultimate fact sought to be drawn from the evidence for the defense.

II. Are the claims void because elements have been aggregated and not patentably combined?

In the books the word "aggregation" is used in different senses. Of one of these, Richards v. Chase Elevator Co. (C. D., 1895, 392; 71 O. G., 1456; 158 U. S., 299; 15 Sup. Ct., 831; 39 L. Ed., 991; on petition for rehearing, C. D., 1895, 728; 73 O. G., 1710; 159 U. S., 477; 16 Sup. Ct., 53; 40 L. Ed., 225) is a good illustration. There Richards brought together certain elements in order to

do away with elevators, by securing the continuous and automatic transfer of grain from one car to another, weighing it in transit, and preserving the identity of each lot.

On examination of the prior art it was found that each element was old. Invention, therefore, if present, lay in a new combination of old elements. But on analysis it appeared that Richards's combination— resolves itself into the omission of the storage feature and a necessary incident thereto;

that is, Richards took an old combination and omitted one element and also its function. So with respect to neither the elements considered separately nor the combination viewed as an entity had Richards produced anything new. The implication, however, is that, if he had, a patentable combination might have been found. In other words, the claims, in and of themselves, independently of the prior art, did not show that the elements were incapable of coacting to produce a unitary result. If the word "aggregation," in the sense that a patent is "void for lack of invention in view of the prior art," is sought to be applied in this case, the inquiry reverts to the question of fact considered in the first part of this opinion.

(4) In another sense (which, in the interest of accurate terminology, might well be taken as the exclusive sense) "aggregation means that the claims, in and of themselves, independently of the prior art, show that the elements are incapable of coacting to produce a unitary result. Illustrative of this is the case of Reckendorfer v. Faber (C. D., 1876, 430; 10 O. G., 71; 92 U. S., 347; 27 L. Ed., 719.)

A handle in common, a joint handle, does not create a new or combined operation.

In the instances of pencil and eraser, pencil and pen, corkscrew and knife-blade, toothpick and earspoon, granting that each element