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thrown out of mesh and again brought into mesh by the lowering of the lid. Thus all that the operator has to lift is the lid of the tub, the stirrer-shaft, and the horizontal driving-shaft. By this means the movement and momentum of the rest of the gearing, including that of the fly-wheel, is not suspended or the headway lost.

Concerning his device the patentee (lines 26 to 71 inclusive) says:

In the drawings A represents a circular or other suitably shaped tub, supported by legs, and having a cover B closing its top, that is hinged to the straight edge of a permanent strip b.

A vertical stirrer shaft C is journaled in the center of the cover, having its lower portion, extending into the tub, provided with a suitable stirrer-head (shown in dotted lines in Fig. 2 of the drawings,) and the portion above the cover provided with beveled pinion c, that is engaged by a beveled gear d on the adjacent end of a horizontally disposed drive-shaft D, which latter is journaled in standards secured to and arising from the screw-plate of the supporting-frame a. Shaft D extends beyond the edge of the cover a short distance, and is provided with a spur-gear E, the lowest segment of which, when the cover is down, is engaged by a segmental-rack e, that is secured to and made integral with a vertically disposed lever F. Lever F is fulcrumed at its lower end, near the bottom edge of the tub, to a vertically elongated supportingplate G, which latter, preferably, just below its center of height, is provided with an outwardly projecting bearing-stud g, on which is journaled a fly-wheel H of sufficient diameter, substantially as shown. The inner end of the boss of this fly-wheel is elongated and provided with a pinion h, which is, preferably, integral therewith. Between the top of the tub and said stud g, supportingplate G is provided with another outwardly projecting bearing-stud j, upon which a large gear J is journaled. This gear is actuated by the lever F, and is adapted to engage the pinion h and revolve the fly-wheel at a comparatively high speed. In order to enable said lever to actuate gear J, I provide the lever with a vertically elongated slot k, and provide gear J with a wrist-pin K, which projects outwardly from one of its arms, through the said slot k. The slot k is of a length corresponding to the diameter of the perimeter of the wrist-pin, and as said lever is moved back and forth it, through the medium of said wrist-pin, revolves the gear J. In order to avoid interference with pinion h, I provide the lever, below said slot, with a transversely elongated open frame M. The longitudinal sides of this frame are, preferably, struck from the center of the fulcrum of the lever, and are sufficiently far apart to clear the said pinion h as the lever is moved back and forth.

Figure 2 of the drawings is as follows, viz.:

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The four claims of the patent here in suit read as follows:

1. In a mechanical movement for washing machines, a vertical rotary reciprocal stirrer-shaft, a rotary reciprocal drive-shaft the axis of which is at an angle thereto, and a pinion at the end thereof opposite said stirrer-shaft, in combination with a vertically disposed lever of the second class, a segmentalrack carried thereby and engaging said pinion, a fly-wheel the axle of which is parallel to that of said drive-shaft and means for transmitting the motion of said lever to said fly-wheel.

2. In a mechanical movement for washing machines, a vertically rotary stirrer-shaft, and a horizontally disposed drive-shaft connected to the same, in combination with a vertically disposed lever of the second class actuating said drive-shaft, a fly-wheel the axis of which is parallel to that of said drive-shaft, and means for transmitting the motion of said lever to said fly-wheel.

3. In a mechanical movement for washing machines, a vertical rotary reciprocal stirrer-shaft, a rotary reciprocal drive-shaft, the axis of which is at an angle thereto, and a pinion at the end thereof opposite said stirrer-shaft, in combination with a vertically disposed lever of the second class, a segmentalrack carried thereby and engaging said pinion, a fly-wheel the axis of which is parallel to that of said drive-shaft, and a gear the axis of which is parallel to that of said fly-wheel for transmitting the motion of said lever to said flywheel.

4. In a mechanical movement for washing machines, a vertical rotary stirrershaft, and a horizontally disposed drive-shaft connected to the same, in combination with a vertically disposed lever of the second class actuating said driveshaft, a fly-wheel the axis of which is parallel to that of said drive-shaft, a gear the axis of which is parallel to that of said fly-wheel for transmitting the motion of said lever to said fly-wheel.

It will be noted that the patentee nowhere enumerates the "line of cleavage," so-called, as one of the advantages, and the chief one, which his device in suit presents. He lays particular stress upon the service of the fly-wheel in the specification. It was only in his rebuttal that appellee's expert developed the theory or feature of the line of cleavage. In his Patent No. 887,022, granted May 5, 1908, the operation of lifting out of and restoring the driving-shaft gear to mesh with the rack or segmental gear upon the lever is described at lines 61 to 62, col. 1, p. 2. In a letter written May 18, 1907, by the patentee to appellee he refers to his device as

the only washing machine in the world that will open or close with the mechanism running at full speed.

This was prior to the filing of the application for the patent in suit. Sometime during January, 1907, the patentee disclosed the device to the secretary of appellee, who directed him to proceed to manufacture a washtub device in accordance with the sketches. The exhibit "white flyer," later termed "white washer," made sometime in January or February, 1907, wherein the fly-wheel is located under the tub, was the result.

It is appellant's contention that, not having specifically described or claimed this line of cleavage feature in the patent sued on, the

patentee may not rely upon the means for effecting that result as a part of his invention. As will be seen from claims 1 and 3 of the patent, the patentee produced a mechanical arrangement which in itself disclosed the line of cleavage. No prior patent for a leveroperated device covered it, although patentee had filed an application prior to that for the present patent which did in terms disclose it as above set out.

Appellee made little use of this device of the patent in suit in the exact form shown in the patent. It was found advantageous to substitute a link and crank for the slot and crank-pin used by the patentee in driving the fly-wheel. Plagman, appellee's foreman, took out Patent No. 895,585 on August 11, 1908, which covered the use of the link and crank, which device was thereafter used by appellee. Counsel for appellee says of this change:

The Victor slot has to be made by a milling operation, and this must be done by skilled mechanics on a milling machine, whereas the link construction of Plagman calls only for a drilling operation, and this can be done by boys. Fig. 2 of this patent is here reproduced:

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It will be noticed that Plagman locates his fly-wheel under the tub. Appellant manufactures what it calls its spinner-machine, under Patent No. 939,645, granted to A. Van Wormer on November 9, 1909, for gearing for washing-machines. Its lever is operated by an up-and-down pumping movement instead of the backward-andforward movement of the patent in suit. It employs a somewhat different and less effective arrangement of the lever. Appellant lays stress upon the claim that it does not employ the lever of the second class exclusively, which appellee, so appellant avers, is limited to under the claims in suit, but does employ for the operation of its flywheel a lever of the first class, and for its drive-shaft part of the time a lever of the second class and part of the time a lever of the first class. Its fly-wheel and speeding-gear are attached to and car

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ried by a plate upon the side of the tub. Fig. 1 of the Van Wormer patent is here shown:

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Appellant in its advertising, made much of the line of cleavage idea. This seems to have been done without actual knowledge of appellee's patent. About the time the suit was begun appellant changed its manufacture to a device which it called "Miracle Washer." It was attempted by appellee to draw this device into the case notwithstanding no such washing-machine was actually manufactured, sold, or used prior to the filing of its bill. On objection made, appellee withdrew it prior to the entry of the final decree. Appellant made this withdrawal a basis for its motions presented before the entry of the decree, viz.: first, that the court make a finding that said Miracle machines do not infringe the claims as charged; or, second, that the court sustain appellant's motion made at the hearing to strike out all proofs offered with regard to said Miracle machines, at appellee's costs, with respect to said claims 2 and 4 in suit. This objection to the taking of the evidence was made at the time the testimony was taken, on August 31, 1911. No disposition of this motion was made by the court other than what is embraced in the final decree.

Appellant insists that appellee failed to give it any notice of its claim of infringement. It may be gathered from the record that Van Wormer was not advised of the Victor patent when he filed his application, i. e., January 13, 1908, although it had been issued some five months before. The Examiner cited it, and Van Wormer thereupon revised his claims. It does not appear from the evidence that the machines were marked. The answer denies the allegations of notice contained in the bill, and no evidence was taken to show direct notice. The appellee relies upon the said citation by the Examiner and the further fact that a Mr. Lane, representing the Iowa Washing Machine Company, claimed appellant was infringing some of its patents, and furnished a list thereof by numbers, among which

was No. 683,120, the patent in suit. The Iowa company is not shown to have had any connection with appellee. About a month before suit was begun appellant's president wrote appellee's lawyers that the question of infringement had been turned over to appellant's attorneys. This date, i. e., August 25, 1910, is the earliest date we are able to fix positively for the purposes of this hearing.

The errors assigned cover: first, the decree of the court finding the claims in suit to be valid and infringed; and, second, the failure of the court to grant said motions. Other facts appear in the opinion.

Mr. Taylor E. Brown and Mr. Clarence E. Mehlhope for the appellant.

Mr. Wallace R. Lane and Mr. Arba B. Marvin for the appellee.

Before BAKER, SEAMAN, and KOHLSAAT, Circuit Judges.

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

(1) In support of its claims, appellee sets up the end accomplished—viz., the adjustment of the parts of its device in such a manner as to produce a lever-operated gear arrangement which relieves the tub-cover of the load imposed by the prior art and provides a detachable connection between the lid with its stirrer-shaft and driving-arm on the one hand, and the lever with its fly-wheel, speeding-gear, and other heavy operating parts on the other hand. In practice it often becomes necessary to lift the tub-lid in order to put in or take out articles, and for other purposes. Inasmuch as the operator is generally a woman, it is important that the burden attending that operation be minimized. If appellee's patent was the first to provide a lever-operated gear for a washtub which reduced the weight of the lid to a negligible quantity, he made such an addition to that art as amounted to invention. It was not necessary that he should have claimed it in specific terms if the device itself disclosed it. In Diamond Rubber Co. v. Consolidated Rubber Tire Co. (C. D., 1911, 538; 166 O. G., 251; 220 U. S., 428; 31 Sup. Ct., 444; 55 L. Ed., 527) the court says:

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He [the patentee] must not put forth a puzzle for invention or experiment to solve but the description is sufficient if those skilled in the art can understand it. * * It is no concern of the world whether the principle upon which the new construction acts be obvious or obscure, so that it inheres in this construction.

This court said in Kuhlman Electric Co. v. General Electric Co., (147 Fed. Rep., 712; 78 C. C. A., 100:)

A patentee is entitled, not only to what he specifically sees, but to what has been brought about by his invention, even though not at the time actually seen.

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