The upper part of the mechanism in the above cut constitutes the "triple valve." Said parts are numbered 10, 11, 12, 14, 20, 36, 39, and 51. The lower part infringes the Westinghouse invention because it includes the "additional members," a separate "auxiliary valve 41," and passage 46, leading from the train-pipe direct to the brake-cylinder. It will be seen the above structure has the "two machines," the same as Patent No. 360,070, whereas Defendant's Structure Plate XI, here in suit, has only one and therefore is minus the "additional members." It will be apparent from an inspection of this diagram that no decision affecting that device can affect one as different from it structurally and in every respect as is that of the Boyden device. It would require the verdict of a jury and the conclusive testimony of experts upon the question of mechanical equivalency to enable a court to decide whether they present a case of res judicata. Prima facie a decision founded upon one patent not in suit here and another decision founded upon three patents collectively, one only of which is in suit here, the two decisions declaring that an invention used by a defendant who is not the defendant here against a machine of that defendant differing widely in its structure from the one complained of here, cannot be treated as binding in the decision which this Court may feel bound to render in the suit at bar. Here it is contended that the mere use of the extreme traverse of the triple-valve piston to effect the same functional result which was effected by Westinghouse in No. 360,070 constitutes an infringement, irrespectively of the additional means employed. There it was ruled that the use of the extreme traverse and of an additional machine attached to the original No. 220,556, which was structurally and mechanically equivalent to No. 360,070, was an infringement of the latter patent. The cases are different and not on all fours with each other and do not control or affect our own ruling. Decrees will be entered, in accordance with the views expressed in this opinion, affirming the ruling of the court below in respect to claims 1 and 4 of the complainant's patent, No. 360,070, and reversing the ruling of the court below in respect to claim 2 of the said patent. [U.S. Circuit Court of Appeals-Second Circuit.] CAPITAL CASH REGISTER COMPANY v. NATIONAL CASH REGISTER COMPANY. NATIONAL CASH REGISTER COMPANY v. CAPITAL CASH REGISTER COMPANY. Decided November 7, 1895. 73 O. G., 1864. CAMPBELL-Cash-REGISTERING APPARATUS-INFRINGEMENT. The third claim of Letters Patent No. 253,506, granted Michael Campbell February 14, 1882, for an improvement in cash-registering apparatus, Held infringed by the defendant's machine following the construction placed upon the claim by the Circuit Court of Appeals of the Third Circuit in National Cash Register Company v. American Cash Register Company, (C. D., 1893, 160; 62 O. G., 449; 53 Fed. Rep., 367.) APPEAL from the Circuit Court of the United States for the Northern District of New York. Before WALLACE, LACOMBE, and SHIPMAN, Judges. Mr. Franklin Scott and Mr. C. E. Mitchell for the appellant. PER CURIAM: This appeal, which is from an order granting a preliminary injunction, involves the single question whether the defendant's apparatus infringes the third claim of the patent in suit as that claim has been construed by the Circuit Court of Appeals for the Third Circuit. (C. D., 1893, 160; 62 O. G., 449; 53 Fed. Rep., 367.) The contention for the appellant is that its apparatus does not embody that of the patent because it dispenses with the "mediate connection" between the drawer-holder D of the patent and the series of keys, which is an element of claim 3. The drawer-holder D is a lever, the rear end of which projects downward onto the drawer and engages the rear end thereof; in other words, the thing which holds the drawer. The defendant's machine connects such a drawer-holder with the keys by the mediate connection of a frame carrying a horizontal cross-bar, which unites its ends. The mediate connection of the patent is any device by means of which the movement of the keys can be transmitted to the drawer-holder. The frame, with its horizontal cross-bar, of the defendant's apparatus is such a device. It is quite immaterial that the drawer-holder is made integral with the frame. 591 PAT 95-48 [U. S. Circuit Court of Appeals--Sixth Circuit.] MCCORMICK HARVESTING MACHINE COMPANY v. C. AULTMAN & Co. et al. SAME v. AULTMAN, MILLER & Co. et al. Decided July 2, 1895. 73 O. G., 1999.. 1. CONSTRUCTION OF PATENTS-SPECIFICATION-DESCRIPTION. It is not material that a patentee has not described in fall all the beneficial functions to be performed by the parts of his machine if those functions are evident in the practical operation thereof and are seen to contribute to the success of his device. (Eames v. Andrews, C. D., 1887, 378; 39 O. G., 1319; 7 Sup. Ct., 1073; 122 U. S., 40, followed.) 2. PRIMARY PATENTS-PIONEER INFRINGEMENT. INVENTIONS-CONSTRUCTION OF PATENTS— With respect to a primary or pioneer patent the well-settled rule is that the patentee who has by the success of his patent pointed out the combination of functions needed to reach the new result, and has claimed the combination of mechanical parts performing those functions, may enjoin the use of another machine producing the same result where the second machine differs from the first only in a substitution for parts or elements in the patented device of parts or elements which, though different in form and kind, perform the same functions in substantially the same way. It may be that the substituted parts are well-known equivalents of those shown in the patent for the performance of the functions to which they are respectively applied, in which case there is manifestly no inventive faculty shown in the change; or it may be that, being shown by the successful operation of the patent the exact nature of the functions to be performed by a part of the patented device, the infringer by the use of his inventive faculty hits upon something as a substitute which will perform the same functions more completely and satisfactorily. In the latter case he is a tributary inventor; but he is none the less an infringer if he uses the whole machine, with his substituted part, to accomplish the same new result. 3. SAME-SAME-INFRINGEMENT. The rule as to infringement of patents for pioneer inventions, which point the way to new products or results, is analogous to that applied to cases involving process patents, in which the discoverer is only required to point out one practicable method of using his process and may claim tribute from all who thereafter use the process, whether with his apparatus or with a different or improved means. 4. SAME-SAME-CLAIMS-USE OF REFERENCE-LETTERS. The mere use of reference-letters in the claims of a combination patent does not of itself, where the invention is really of a primary and pioneer character, limit the scope of the claims to the exact form shown. On the contrary, nothing will restrict a pioneer patentee's rights save the use of language in his specifications and claims which permits no other reasonable construction than that he positively intended to limit the scope of his invention to the particular form shown, thus indicating a willingness to abandon to the public any other form. (C. D., 1893, 531; 64 O. G., 1791; 58 Fed. Rep., 773.) 5. SAME-SAME-ESTOPPEL-LICENSES-SUITS IN EQUITY-INFRingement. Defendants set up, as anticipating the patent sued on, another patent owned by complainant. It appeared that this patent, together with numerous others relating to the same art, owned by complainant and other parties, had by agreement been conveyed to a trustee to issue licenses to others for the use of all the patents, and that in this way licenses had been granted under the alleged antici pating patent, but not to the defendant. Held that complainant was not estopped by reason of such licenses from showing, as against the claim of anticipation, that the patent in question was inoperative, and that the fact of such licenses was only evidential in character, as an admission, and its force as evidence was rebutted by the character of the arrangement under which the licenses were granted. 6. REISSUE-Surrender OF ORIGINAL PATENT-REJECTION OF REISSUE CLAIMSORIGINAL PATENT-EFFECT OF REJECTION OF CLAIMS IN REISSUE. Quare: If a patentee applies for a reissue of his patent, and includes among the claims under the new application the same claims as those which were included in the old patent, and the Examiner of the Patent Office rejects some of such claims and allows others, both old and new, does the patentee by abandoning his application for a reissue and by procuring a return of his original patent hold his patent invalidated as to those claims which the Examiner rejected? (The above question is certified by the Circuit Court of Appeals to the Supreme Court for decision.) 7. GORHAM-GRAIN-BINDER-No. 159,506-PIONEER INVENTION-INFRINGEMENT— VALIDITY. Letters Patent to M. L. Gorham, No. 159,506, for a grain binder, issued February 9, 1875, was not anticipated by the Spaulding patent of May 31, 1870, No. 103,673, or any other patent; nor was it strictly limited by anything in the prior art to the exact forms of construction shown. On the contrary, it was a primary invention of high merit, obtaining results wholly new, and in a different way. The patent is therefore entitled to a liberal construction. Claims 3, 10, and 11 analyzed and construed, and Held infringed, and claims 25 and 26 Held not infringed, by the Appleby binder. (C. D., 1893, 531; 64 O. G., 1791; 58 Fed. Rep., 773, reversed.) 8. BAKER-HARVESTER-BINDER-REISSUE NO. 10,106-INFRINGEMENT INVALIDITY. Reissue Letters Patent to W. R. Baker, No. 10,106, for an improvement in harvester-binders, reissued May 9, 1892, examined and Held invalid for want of novelty. APPEALS from the Circuit Court of the United States for the Western Division of the Northern District of Ohio. Before TAFT, LURTON, and SEVERENS, Judges. Mr. Robert H. Parkinson for the appellant. Mr. Thomas A. Banning (Mr. Edmund Wetmore, Mr. U. L. Marvin, and Mr. Ephraim Banning, of counsel) for the appellees. TAFT, J.: These are appeals from decrees dismissing two bills brought to restrain the future infringement of two patents and to recover damages for past infringements. (See C. D., 1893, 531; 64 O. G., 1791; 58 Fed. Rep., 773.) The complainant, the McCormick Harvesting Machine Company, is the owner of Patent No. 159,506, for a grain binder, issued to Marquis L. Gorham February 9, 1875, and of Patent No. 10,106, for an improvement in harvester-binders, reissued May 9, 1892, to W. R. Baker. The principal defendant in one action was C. Aultman & Co., and in the other was Aultman, Miller & Co. As there was a close business relation between these two defendant corporations, the actions were by agreement of counsel treated as one suit and heard as one cause. The court below dismissed the bill as to the Gorham patent, first, because the Examiner of the Patent Office had refused to allow the claims of the old patent, here alleged to be infringed, on an application for a reissue of the patent made by Gorham's executrix in 1881, where, upon the application was withdrawn and the old patent was returned to the patentee, and, second, because in view of the prior art the language of the claims involved must have a construction so limited as not to embrace the defendants' machines. The bill, so far as it sought relief from infringements of the Baker patent, was dismissed on the ground that the patent was invalid for want of novelty and invention. (C. D., 1893, 531; 64 O. G., 1791; 58 Fed. Rep., 773.) In the discussion of the Gorham patent and its infringement, for a reason which will become obvious, we shall first consider the second ground upon which the conclusion of the Circuit Court rested-namely that even if the application for a reissue be disregarded as an estoppel the machines of the defendants do not infringe the claims of the Gorham patent. The object of the Gorham invention was stated in his specification as follows: The object of this invention is to produce a machine for binding grain that will automatically receive the cut grain from the harvester, determine the size of the gavels or bundles, perfectly and securely tie the bundles, and when so tied discharge them from the machine without any interference or agency other than the machinery that operates it. In 1874, when Gorham filed his application, there had been upward of two hundred devices patented which had the object thus stated; but not one had successfully accomplished it in a practical way in the harvest-field. There were two or more machines, patents for which had been taken out at an earlier date, which bound bundles of varying sizes automatically with wire; but they were wholly useless for twine, because of the great tension upon the binding-cord necessarily involved in the principle of their operation. The disadvantages connected with the use of the wire as the binding material hardly need to be stated, because so obvious, and were shown with emphasis by the fact that until automatic twine-binders were invented nearly all binding was done by hand, and when automatic twine-binding became practicabie the few wire-binders went entirely out of use. Grain as it is cut by the knives of the harvester usually falls on a platform moving at right angles to the direction of the horses and master-wheel, and after it crosses the space behind the knives is automatically elevated over the master-wheel by endless apron or otherwise, and is thence discharged downward onto a binding-table. Until a practicable automatic twinebinder was made the binding was done by hand. In many cases the binders rode on the harvester, taking the gavel from the binding-table and binding it there. In other cases what was called a "hand-binder" was used. In using this an operative adjusted the gavel for the machine, then actuated it by his hand, and this bound the bundle. 1 |