after it is headed. The question is, do the appellants use a feeder with projecting arins, between which the cans are received from the belt? It is apparent at a glance that the peripheric wheel could be constructed as well with projecting arms as with the curved pockets, and that its operation would not be altered. If the appellee is entitled to be protected in the claim as it is made in his patent-and it is not disputed that he is entitled to such protection-we think infringement cannot be avoided by merely changing the shape of the arms of the feeder. Nor do we think that the fact that the wheel, 36, of the appellants' machine, moves in a true circle, while the feeder of the appellee's moves eccentrically and intermittently, sufficient to constitute a fundamental difference. We are of the opinion, therefore, that claim 3 is infringed by the appellants.

Concerning claim 5, we entertain no doubt of the correctness of the ruling of the trial court that the appellants have infringed. The claim covers the inclined chute into which the caps are placed, a stop extending across the chute to check their movement, in combination with a trigger extending across the path of the cans, and connected with the stop, so that, as the trigger is moved backward by the passage of the can, it withdraws the stop and allows a cap to move down the chute. The essence of this claim is the fact that each can automatically releases its own cap for the capping operation, and it is an important feature of Jensen's invention. Prior to his invention, caps for each can had been supplied by hand. The appellants' device contains a trigger in the path of the cans, a stop in the path of the caps, and a connecting mechanism between the trigger and the stop whereby each can releases its cap. It dispenses with the inclined chute, but in its place substitutes an endless traveling belt, which is the mechanical equivalent of the chute for carrying the caps. This substitution is not sufficient to avoid infringement. A stationary chute, in which the caps move by gravity, and a moving belt carrying the caps, are interchangeable and equivalent; both being old and well-known devices. Counsel for the appellants contend that, in disposing of the question whether the traveling belt is the equivalent of the chute, the inquiry is whether a belt could be substituted for the chute in the appellee's machine. But the test is not whether in the machines, as they are made, a belt could be imported from the appellants' machine so as to work harmoniously without adaptation or change. The true inquiry is whether or not a belt could be adapted to the appellee's machine. Of this the evidence leaves no doubt. In fact, it is so apparent as to require no proof.

The elements of the ninth claim are the vertically moving plunger, upon which the cans are delivered by the feeder; the conical guide above the cans; the transversely moving slides, upon which the caps are received; and mechanism for withdrawing the slides as the can enters the cap. The appellants contend that they dispense with the vertically moving plunger. Their machine has a device, marked 19 in their patent, called a "cap seat." It is a disk resting on a vertical stem, 18, which passes through a vertical hole in the revolving bracket, 14a. It is not denied that this is a plunger, but it is contended that it is not a vertically moving plunger, for the reason that the bracket, 14a, rotates around the central shaft, and in that rotation the dependent

vertical stem of the plunger passes over the inclined face, 46, of the stationary cam, 47, giving to the plunger a resulting circular motion, as well as an upward movement on an inclined plane. It is true that the plunger, while it rises in a vertical line as to its bearings, moves at the same time on an inclined plane by reason of riding over the cam; but at no time does the plunger, or the can which it carries, depart from a perpendicular position. There can be no doubt that it is a vertically moving plunger as to the can cap which is placed above it, or that by that vertical motion it carries the can into the can-capping mechanism, or that by that vertical movement it performs all the functions which are performed by the appellee's can-capping mechanism. Infringement is not avoided by the fact that at the same time a revolutionary movement is imparted to the mechanism, which carries both the cap and the can during the operation. Ives v. Hamilton, 92 U. S. 426, 23 L. Ed. 494; Machine Co. v. Murphy, 97 U. S. 120, 24 L. Ed. 935; Brush v. Condit, 132 U. S. 39, 10 Sup. Ct. 1, 33 L. Ed. 251; Hoyt v. Horne, 145 U. S. 302, 12 Sup. Ct. 922, 36 L. Ed. 713. Claim 10 adds to claim 9 the second plunger, moving vertically above the can cap, and following it down by gravitation or otherwise so as to steady the can in its descent after the cap has been applied. The appellants use an upper plunger, which they call a "cap presser." They contend, however, that they avoid infringement by reason of the fact that their upper plunger is not required to steady the can-other means being used for that purpose-and that the upper plunger or cap presser is used only for the purpose of pressing the cap on its seat, and holding the same in place while the can body is forced into it. But the evidence indicates that the cap presser of the appellants' machine not only,acts as a resisting plate during the can-heading operation, but that it afterwards follows the can and steadies it; the difference being that it does not follow it as far as does the upper plunger in the appellee's mechanism. But it is immaterial whether or not the upper plunger or cap presser of the appellants' machine performs all the functions of the upper plunger of the appellee's. Claim 10 of the latter covers the device itself in the combination, and not the function thereof. It is unimportant that the appellants do not accomplish by their plunger all that is accomplished by the appellee's. The two devices are the same, and the appellants cannot avoid infringement by failing to make use of the upper plunger for all purposes for which it might be used.

The elements of the eleventh claim are the vertically moving plunger on which the can is received, a carrier for placing the can thereon, a mechanism by which the plunger is reciprocated vertically, a second plunger resting upon the can cap, and mechanism for raising this second plunger before the arrival of the next cap. The trial court held that this claim was not infringed, for the reason that among the devices of the combination was included the second feeder, F, which is not reproduced in the appellants' machine. The appellants contend that claim II is not infringed for the further reasons that their machine does not use the vertically moving plunger, S, or the upper plunger, U. But from the views above expressed, in which we found that the appellee's feeder, F, is reproduced in the appellants' machine, as well as

the vertically moving plunger, S, and the overhead plunger, U, it follows that the eleventh claim of the appellee's patent is necessarily infringed by the appellants'.

The decree of the Circuit Court will be modified in accordance with the foregoing opinion.

WESTINGHOUSE AIR BRAKE CO. v. CHRISTENSEN ENGINEERING CO. (Circuit Court of Appeals, Second Circuit. February 25, 1904.)

1. PATENTS-VALIDITY AND INFRINGEMENT - VALVE MECHANISM FOR AIB

BRAKES.

The Boyden patent, No. 481,134, for a valve mechanism for automatic air brakes, claim 2, as limited to the elements of the combination described and shown in the specification and drawings other than the graduating valve included in claim 11 is valid; also held infringed.

Before WALLACE, TOWNSEND, and COXE, Circuit Judges.

PER CURIAM. Complainant and defendant have each filed a petition for rehearing. That of defendant raises no substantial questions other than those presented in its former brief and on the argument. These questions were not overlooked by the court in its disposition of the case.

The petition of defendant is denied.

The petition of complainant calls our attention to the statement in the opinion that claim 2, if narrowly construed, is identical with claim II. The court understood complainant's counsel on the hearing to admit this to be the fact. Complainant's counsel now contends that said admission was inadvertent, and that the narrower claims 4 and II, which were sustained, would not secure to complainant the benefit of the principal invention. We think this contention is correct. Claim II does in fact comprise the element of a graduating valve, not included in claim 2. We have never had any doubt as to the meritorious character of the invention in suit, or the validity of the patent therefor, and its infringement by defendant. In these circumstances a construction of the claims should be adopted, if possible, which will uphold the patent and protect the real invention. This may be accomplished in the present case by limiting claim 2 to the elements of the combination described and shown in the specifications and drawings other than the graduating valve. Claim 2, thus limited, is valid, and is sustained.

The decree of the Circuit Court is affirmed, with costs.

AMERICAN SODA FOUNTAIN CO. et al. v. SAMPLE.

(Circuit Court of Appeals, Third Circuit. May 16, 1904.)

No. 20.

1. PATENTS NOVELTY-SODA FOUNTAIN APPARATUS.

The Sample patent, No. 498,962, for a draft tube for soda fountains, claims 1 and 5, the special feature of which is the subdivision of a tube extending from the valve into branches so as to reduce the pressure when it is desired to use the soft stream in filling a glass, are void for lack of patentable novelty in view of the prior art, and especially of the Clark patent, No. 358,650, issued in 1887, and the Fergus patent of 1872. 2. SAME-PRESUMPTION FROM GRANT.

The fact that the file wrapper discloses that a patent was granted as applied for, without any references, does not add force to the presumption of novelty arising from the grant, but rather the contrary, where there were prior patents for devices in the same art, which are obviously closely analogous to that described in the application.

Appeal from the Circuit Court of the United States for the Eastern District of Pennsylvania.

For opinion below, see 126 Fed. 760.

Joshua Pusey, for appellants.

W. G. Henderson, for appellee.

Before ACHESON and GRAY, Circuit Judges, and KIRKPATRICK, District Judge.

GRAY, Circuit Judge. This suit was brought in the Circuit Court of the United States, for the Eastern District of Pennsylvania, by George W. Sample, the appellee and complainant below, for the infringement of letters patent of the United States, No. 498,962, issued to said Sample June 6, 1893, for a draft tube for soda water fountains. The bill of complaint is in the usual form, and charges infringement of said letters patent by the defendants, the American Soda Fountain Company and Alfred H. Lippincott, agent and general manager of said company. The answer is in the usual form, and denies infringement. It avers that, in view of certain prior patents and prior uses by others, the said patent is invalid, and that, in view of the well-known state of the art, at and before the date of the alleged invention of complainant, the same did not involve invention, and was and is without patentable novelty. The court below adjudged the first and fifth claims of the patent in suit (these being the only claims defendants were charged with infringing) to be valid, and that defendants had infringed said. claims. From this decree, the present appeal is taken.

The patentee thus describes in the specifications of his patent his alleged invention:

"My invention relates to draft tubes for soda water dispensing apparatus, and has for its object to provide an improved draft tube wherein the valve which controls the discharge of the soda water into the glass or tumbler is provided with one passage or channel for the discharge of the water in a forcible stream or jet for the purpose of mixing the syrup and the water, and with a plurality of passages or channels for the passage of separate streams 130 F.-10

or jets of the water to be mixed with the syrup and served to the user, the said plurality of passages or channels other than the channel for the jet to mix the water and syrup being connected with a common inlet port therefor, and the passage or channel for the mixing stream or jet being connected with another port, so that while there will be at least three passages or channels within the body of the valve for the passage of the water there will be only two inlet ports for the series of channels or passages whereby is obtained a better distribution of the soda water with a construction requiring less labor in its operation, and in which loose or leaking joints are not so liable to occur. It further consists in providing the two channels or passages through which passes the water to mix with the syrup with a series of perforations extending outwardly in an upward direction so that the water will be projected upwardly in a series of small jets and be then directed by a conical nozzle to the glass in a copious but in a quiet or gentle flow so that the glass can be filled in less time than otherwise and the overflow of the glass guarded against.

It further consists in means for readily adjusting the valve against its seat so as to easily and quickly take up any wear as it occurs and thus insure a close joint between the valve and its seat."

The first and fifth claims of the patent (the only ones here involved) are as follows:

"1. In a soda water draft tube having a port for the inlet of the water, a valve formed with separate ports adapted to be alternately brought into communication with said inlet port and formed with a passage or channel leading from one of said ports for delivering the water in a forcible stream or jet and with a plurality of passages or channels leading from said other port adapted to divide the water received through said port and deliver it in independent streams or jets, substantially as and for the purposes described.”

"5. In a soda water draft tube, the combination with a valve seat portion formed with an inlet for the water and with a chambered portion to receive the valve, of a valve fitted in said chambered portion and formed with separate ports adapted to be alternately brought into communication with said inlet port, and having a passage or channel leading from one of said ports and a plurality of passages or channels leading from the other port and adapted to divide the water received from said port into separate flows, means for adjusting and for holding said valve against its seat, and means for operating said valve, substantially as and for the purposes described."

According to the evidence, it is desirable, in the class of devices to which the patent in suit relates, to provide a valve mechanism whereby a single "sharp" or forcible stream may be first directed into the tumbler or receptacle, for the purpose of thoroughly mixing the syrup and soda water. When this is done, and before the glass is filled, it is also desirable that a "soft" or diffused stream, or what is known as "flat" soda water, may be drawn into the glass or receptacle in such manner that the danger of splashing or overflowing the glass will be avoided. This is in general accomplished by conveying the air-charged soda water through a straight tube of small diameter, the water being discharged without interruption in a "sharp" strong stream into the receptacle, the "soft" or diffused stream being produced by conveying the water through the port into a tube which immediately branches into two tubes. of equal or greater diameter, from which the water is discharged against the sides of the nozzle through which it passes softly into the glass. That this is the main and controlling idea embodied in both claims (1 and 5) of the patent in suit (the fifth claim only differing from the first in that it includes "means for adjusting and for holding said valve against the seat"), is clearly set forth in the testimony of complainant's expert. He says: