Opinion of the Court.

is claimed to consist of an aggregation of two distinct and independent organisms, to wit, a complete harvesting machine and a complete binding machine.

It is doubtless true that several of Gordon's claims do apparently involve a claim of parts of the harvesting machine in combination with the binding apparatus, thus constituting an organic whole. But, as we have seen, the complainants have withdrawn from our consideration all of the claims except the first, and that is restricted, as above stated, to the special devices therein described.

We do not attach much importance to the defendants' contention that Gordon's invention was not a practical success. Our examination of the evidence in that respect has not satisfied us that the alleged failure, in the harvest field, of machines embodying the Gordon invention was owing to the failure of the binding and twisting apparatus to successfully operate, but it rather seems to have been occasioned by mechanical defects in other parts of the harvesters. On the other hand, there was testimony that, in several instances, the Gordon apparatus operated successfully.

This brings us to a consideration of the question of infringe

ment.

A large part of the argument on behalf of the defendants. goes to show that the Gordon patent is substantially for a machine combining the cutter and rake and other parts of a harvester with the binder and twister, all the parts being mounted on one frame, and constituting an organic whole; whereas the defendants use, in combination, two machines, each complete in itself, one a harvesting machine composed of a substantial frame, in and upon which are erected mechanisms for cutting grain, for moving the grain, when cut, laterally as it falls upon the platform, and for elevating and discharging it over the top of the main wheel, upon which the greater portion of the weight of the machine is supported, together with suitable gearing for transmitting from the main wheel the necessary power to operate these mechanisms; the other, a binding machine composed of another frame, in and upon which are erected devices for packing grain into bundles, for

Opinion of the Court.

compressing said bundles, for applying and tying a cord around the compressed part of each bundle, and for discharging the bound bundle to the ground, together with suitable gearing for transmitting motion to these devices from the prime shaft of the binder.

The Gordon specification does seem to describe a composite machine whose purpose is to cut and bind the grain, and if the eleven claims are read together, as if they constituted the invention claimed, the defendants' argument would properly demand that we should consider the distinction suggested between a machine composed of the cutting and binding apparatus mounted upon one frame and constituting an entirety, and two machines coöperating in the manner used by the defendants.

But as the complainants have restricted their case to an alleged infringement of the first claim, and as that claim is merely for the devices used to make the binder and twister movable, at the will of the operator, along a horizontal shaft, we are only called upon to compare the devices of Gordon with those used by the defendants, for attaining a common purpose, namely, securing the stalks of grain into bundles by passing around them a band at the middle of the stalks.

Bearing in mind the previously given definition of Gordon's claim, we shall now compare it with the devices used by the defendants in converting a bundle of stalks into a sheaf.

A distinction is pointed out between a twister and a knotter, one designed for use when a wire forms the band, and the other for use when a cord or string is used. But we do not regard such a distinction as a vital one, and prefer to consider the twister and the knotter as substitutes for and equivalents of each other.

The novelty of the structure mentioned in the first claim of the Gordon patent consists solely in the fact that the automatic twisting device and the binding arm possess the capacity of fore and aft adjustment with relation to all the other parts of the binding apparatus, including the binder receptacle, which is the platform extension upon which the bundle of grain, collected by the rake, is deposited preparatory to

Opinion of the Court.

being bound; and the binding arm and twisting device are adapted to slide upon the shafts by which they are operated, for the purpose of adjusting the machine for binding the

bundles in the middle.

The defendants have mounted both binding arm and knotter immovably in the supporting frame of the binding machine, excluding the capacity for adjustment with which Gordon endowed them. The arm and knotter are not pushed backward and forward on their shafts. To adjust for central binding, the entire binding machine is moved bodily frontward or rearward, in order to bring different parts of the binder opposite the centre of the path along which the grain is delivered from the harvester elevator belts.

In the Gordon machine the devices belonging to the binder cannot be taken away without dismantling the harvester, or if the harvester be left intact, then what is left of the binding mechanism will not be operative as a binder. In defendants' case, the binding mechanism can be wholly detached from the harvester without in any way affecting the capacity of the harvester to operate, and when so removed the binder will continue to operate as such whenever it is fed with grain and power is applied to its shaft. Doubtless this difference between the two machines would not, of itself, prevent the complainants from claiming an infringement of the Gordon first claim, restricted, as it is, to the method of adjusting the binder and twister. But, as above stated, and as clearly appears on an inspection of the defendants' machines, their devices to bring the bundles to the binder, so as to present them to be bound in the middle, are altogether different from those described in Gordon's first claim. The end sought to be effected is the same in both methods, but the devices are not the same; and in the state of the art, as shown by the earlier patents in evidence, and of which we may mention the patent of Watson, Renwick and Watson, dated May 13, 1851; of Watson and Renwick, dated June 6, 1853; of S. S. Hurlburt, dated February 4, 1851; of Sherwood, dated September 14, 1858, and August 30, 1859; we cannot regard Gordon's first claim as entitled to protection as a pioneer invention, covering the

Statement of the Case.

achievement of the desired result in its widest form, unlimited by specific details. If this claim can be sustained, in the light of the previous inventions, it can only be done by restricting it narrowly to the particular devices described, and under such a construction the machines of defendants cannot be deemed to infringe.

None of the defendants are shown to have ever made, sold, or used a machine containing a binding arm and twister, or any equivalent device, adjustable with reference to the binding machine in which they are mounted, or with reference to the platform on which the binding takes place, or with reference to the bundles of grain in position to be bound. In the defendants' machines the binding arm and knot-tying mechanism are permanently secured in a fixed position and incapable of adjustment by being moved to and fro in the machine. When the binding machine itself is moved so as to adjust it to the middle of the stalks to be bound, the binding arm and tying mechanism, by virtue of their permanent attachment to the frame of the machine, are necessarily moved with it, but they cannot be adjusted in it.

Our examination of these cases has brought us to the conclusion reached by the court below, and its decrees, dismissing the several bills of complaint, are, therefore,

Affirmed.

UNITED STATES &. BAIRD.

APPEAL FROM THE COURT OF CLAIMS.

No. 963. Submitted October 20, 1893. Decided October 30, 1893.

A marshal of the United States is not entitled to commissions on disbursements for the support of a penitentiary, made under Rev. Stat. § 1892.

THIS was a petition by the marshal of the United States for the Territory of Idaho for fees earned in executing warrants of commitment of certain prisoners to the penitentiary at Boisé City, and also for commissions upon disbursements for

Opinion of the Court.

the support of such penitentiary. In connection with the latter claim the court made the following findings of fact:

"IV. He also, as such marshal, disbursed the sum of fiftyfour thousand four hundred and twenty dollars and fifteen cents, ($54,420.15,) funds of the United States, for the use of the penitentiary of said Territory. For such penitentiary disbursements he claimed a commission at the rate of two per cent, amounting to one thousand and eighty-eight dollars and forty cents, ($1088.40,) and his account for the same was likewise approved by said District Court for the First District of Idaho.

"V. The only reason why no commission was allowed him on such disbursements appears to have been that he was allowed compensation for the services required by section 1893 in the government of such penitentiary, which said compensation was fixed by the Attorney General in accordance with said section at the rate of one thousand two hundred dollars ($1200) a year."

Upon this finding the court rendered judgment in his favor upon the last item for $1088.40, and the United States appealed.

Mr. Assistant Attorney General Dodge and Mr. Charles C. Binney for appellants.

Mr. George A. King for appellee.

MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.

Plaintiff having withdrawn the claim for mileage in executing warrants of commitment in consequence of the ruling of this court in United States v. Tanner, 147 U. S. 661, it only remains to consider his claim for commissions for disbursements for the support of the penitentiary.

This claim is based upon the general fee bill, Rev. Stat. § 829, which allows to the marshal "for disbursing money to jurors and witnesses, and for other expenses, two per centum."