to lay the foundation of a claim to priority, if it be sufficiently plain to enable those skilled in the art to understand it." Loom Co. v. Higgins, 105 U. S. 594. But this rule is to be taken with proper qualifications. Drawings may carry date of invention back if reasonable diligence is shown. Kneeland v. Sheriff, 18 0. G. 242. Making drawings of an idea is not invention, and is of no effect unless followed up. Draper v. Potemska Mills, 13 O. G. 276. Merely making drawings is not such an embodiment of invention as will defeat a subsequent patent. Ellithorp v. Robertson, 4 Blatchf. 307. The reasons for this qualification of the rule are well stated in section 61, Walker on Patents.

Between the date of the last drawing made by Odell and his application for a patent there was an interval of a year. In the mean time the Daverio American patent, the Poole, the Poole & Miller, and the Gray patents were issued. All these are in evidence for the defendants. The drawings made by Odell cannot be recognized as giving priority to his invention as against those patents, whatever might be their effect upon the decision of the question of want of novelty if those patents had not been issued. So far as the complainants are concerned, the defendants are not precluded by Odell's drawings from using any mechanism covered by any of the patents issued between the dates of the drawings and the date of Odell's application for his original patent. We have nothing to do, in this cause, with the question whether they infringe the rights of other patentees. Detroit Lubricator Manuf'g Co. v. Renchard, 9 FED. REP., is in point. We quote from the opinion of Mr. Justice MATTHEWS, on page 297:

"The defendants exhibit a drawing made by J. V. Renchard, which bears date August 10, 1876, and which, it is testified by him, was made on that day, and by others, that he showed it to them about that time. This antedates Parshall's application, but it fails to supersede his patent, for the reason that it seems well established in evidence that Renchard did not at that time prosecute the matter beyond the mere drawing. The drawing seems to exhibit a perfect machine in all its parts, and sufficiently to show the combination forming the subject of the present controversy, particularly the metallic oil cup, the siphon tube carrying the condensed water into the glass indicator, and the two chambers, condensing and oil, and directly united. Nevertheless, it is clearly proven that the defendant did not, in fact, construct an indicator in this form, and reduce it to actual use, until after it had been successfully accomplished by Parshall, nor until after the date of his patent. This mere drawing cannot, therefore, be allowed to have the effect of depriving Parshall of his title of being the first and original inventor."

The Daverio patent, issued in England, December 23, 1879, (to Simons,) and in this country, December 14, 1880, and the Gray pat ents, dated December 21, 1880, application filed February 16, 1880, are offered to anticipate the first claim in complainant's patent. the Daverio patent a through shaft is shown, with mechanism for op erating the two hopper gates or slides simultaneously from either side

In

of the machine. In the Gray patent is shown a through shaft with a lever or handle at each end, and mechanism for simultaneously closing or opening both gates or slides. In each of these patents the shaft is a transverse shaft, but the direction of the shaft is of no consequence in considering the first claim of complainant's reissued patent, which is "the combination of the hopper-gate mechanism on both sides of the machine with a through shaft, lever mechanism connecting the parts to operate the gates simultaneously, and a single handlever, substantially as and for the purpose described." The position of the shaft parallel with the rolls is important only when, by combination, the gate or slide-controlling mechanism and the roll-controlling mechanism are to be operated simultaneously by the movement of the hand-lever. But Odell chose to make a separate claim for the mechanism controlling the gates, and as a separate claim it must be construed independently of the claims for the combination of the gatecontrolling and of the roll-controlling mechanism. Our conclusion is that the first claim of the reissue is invalid for want of novelty.

In anticipation of the second claim the defendants set up the Poole patent, No. 238,000, dated February 22, 1881; the Poole & Miller patent, No. 238,001, dated February 22, 1881; and the Gray patents, No. 235,761, dated December 21, 1880, and No. 238,677, dated March 8, 1881.

The Mechwart patent, dated December 20, 1881, application filed April 22, 1880, more than a year prior to Odell's original patent, has the outer rolls journaled upon movable arms, or levers, as they are termed in the specification, connected to weights, which, by gravity, keep the rolls together. These weights are raised, and the outer rolls released from contact with the inner, by a hand-lever operating upon. them by means of a through shaft, and cranks, and chains at each side of the machine. The mill is provided with a separate device for shutting off the supply of grain from the hopper. Whether the mechanism in this mill for controlling the rolls anticipates Odell's second claim in his reissued letters depends upon whether the weights and connecting parts are the equivalent of the transverse shafts and the coiled springs of the Odell mill. It is in testimony, and such we find to be the fact, that the coiled springs form a yielding bearing for the outer rolls, permitting them to give and allow the passage of obstructions caught between the rolls. This is a great advantage, and one of the most valuable features of the roll-controlling mechanism of the Odell mill. The shaft is so constructed that the spring is not acted upon when the shaft, and by it and its connections the outer rolls, are moved by the hand-lever. When the rolls are set, the shaft holds them rigidly in position against everything but a hard, foreign substance passing between them. Then, and then only, the coiled spring is brought into play, and the outer roll recedes against the constantly increasing pressure of the spring, and suffers the obstruction to pass. The spring then instantly forces the outer roll back

into grinding position. The weights and connected mechanism of the Mechwart mill do not form a yielding bearing. In the specification of the Mechwart patent it is stated that "in case of any obstruction getting into the mill the pressure is thrown off instantly by turning the handle, m, [corresponding to the hand-lever in the Odell mill,] and revolving shaft, o, (a through shaft parallel with the rolls,] and its cranks at each side of the machine to raise the weights, h, by the chains, t, that connect the weights and cranks." The inventor-and we must presume that he knew his own mill-did not understand that the weights formed a yielding bearing, acting automatically, as do the coiled springs, but did understand that the weights must be raised by the operator. Even if the weights and connected mechanism form a yielding bearing, their action must be sluggish and uncertain compared with that of the coiled springs. The difference is that between a dead weight and an elastic force, in a place where the elastic force is essential. The Mechwart mill, therefore, does not anticipate the second claim of the complainant's reissued patent.

Neither the Poole nor the Poole & Miller patent has the yielding bearing. In the Poole patent, when the rolls are set, they are so firmly held in position that something must break before an unyielding foreign substance can pass between the rolls. In the Poole & Miller patent a toggle-joint is used. The inner rolls are movable, being journaled in boxes which slide backward and forward in frames. to which they are fitted. When the toggle is straightened (or extended) these rolls are forced into grinding position, and there inflexibly held, until, by movement of a hand-lever, the toggle is thrown into a zigzag position, and then the rolls are forced apart by coiled springs, which have no other office. The Gray patent, No. 235,761, relates exclusively to mechanism for controlling the hopper gates or slides. These patents do not anticipate claim 2 of complainants' reissue. In the Gray patent, No. 238,677 there are two through shafts, each parallel with the set of rolls over which it is placed, and connected, by eccentrics and transverse shafts, to movable arms, in the upper ends of which the outer rolls are mounted. The transverse shafts are provided with coiled springs, forming yielding bearings, substantially as in complainants' patent. The ends of the through shafts are provided with crank-arms pivoted to a connecting horizontal rod, serving as a hand-lever, by moving which from either side of the machine all the eccentrics are moved simultaneously, and the outer rolls thrown instantly into or out of operative position. All the parts of this combination are old. The claim is limited to the combination of the movable arms, the transverse shafts, the eccentrics, and the horizontal rod, by moving which the rolls are thrown apart or together, and, in our opinion, does not interfere with claim 2 of complainants' reissue, which is limited to a single through shaft and a hand-lever rotating it to operate the four transverse shafts simultaneously, and, by moving the pivoted journal arms, carrying the mov

able rolls to spread or set the rolls. It follows that the second claim of complainants' reissued patent is sustained..

It was urged upon the hearing that the entire reissued patent must be held to be invalid if claims 1 or 2, or both, were found to be invalid. That does not follow. We are satisfied from the testimony that claim 1, which we hold to be invalid, was made in good faith in the honest belief that Odell was the original inventor of the combination covered by that claim. Where it appears that claims in a reissued patent were made to broaden the invention, and thereby to cover intermediate inventions or improvements, the fraud may so vitiate all the claims in the reissued patent that all will be held to be void. But one claim in a reissue may be void without necessarily invalidating the other claims. Packing Co. Cases, 105 U. S. 566; Gage v. Herring, 107 U. S. 646; S. C. 2 Sup. Ct. Rep. 819. The invalidity of a claim in a reissued patent does not impair the validity of a claim reproduced from the original patent in the reissued patent. Schillinger v. Greenway Brewing Co. 20 O. G. 495; Fetter v. Newhall, 25 O. G. 502.

The fourth, fifth, and sixth claims of complainants' reissued patent are substantially reproductions of claims in the original patent. The fifth and sixth claims differ only in form from the fourth, and we therefore, and in accordance with a stipulation filed by counsel, consider only the fourth. The defendants rely upon the Wegman patent, April 7, 1883, application filed February 10, 1883, patented in England in 1879, to anticipate the fourth claim. We are of opinion that the English patent does not show in the drawings nor describe in the specification simultaneous operation of the roll-controlling and of the feed-controlling mechanism. The American patent, of date later than complainants' patent, can not be brought in to supply the deficiencies of the English patent. We therefore hold that the Wegman patent does not anticipate the fourth claim of complainants' reissued patent, which is sustained. There is no evidence that prior to Odell's invention the combination of mechanism for simultaneously controlling the gates and the rolls was known or used, and there is no doubt in our minds that it is a valuable and patentable improvement. Loom Co. v. Higgins, 105 U. S. 591.

The remaining question is whether the defendants are infringers of the second and fourth claims of the complainants' reissued patent. The defendants' mill-that which they were manufacturing when this suit was brought-is so constructed that, by means of a sleeve on the through shaft and an arm connected to the outside lever, journaled on this shaft, the gates or slides controlling the feed discharge may be moved without moving the rolls; and by moving the inside lever, which is attached to the through shaft, the roll-controlling mechanism is operated. Both levers may be grasped at the same time and moved together, and thus simultaneously adjust the rolls and the gates or slides. This mechanism is substantially al

most identically, that of the complainants' mill, including the transverse shafts with the coiled springs, forming yielding bearings.

Prior to the bringing of this suit, and up to March, 1883, defendants manufactured another mill shown in the Livingston patent, No. 284,135, in which a single lever served to operate the through shaft, and simultaneously move both sets of mechanism. An interference. between Livingston, defendants' assignor, and Odell was decided in! favor of Odell, March 31, 1883, and since that date the defendants: have not manufactured nor sold that mill. The bill in this cause was filed June 6, 1883. If the complaint were only on account of the manufacture and sale of that mill, the case would not be one for in-. junction. The remedy at law would be complete. It is true, as: urged by counsel for complainants, that it has been held that stop-. ping infringement will not prevent an injunction. But the cases have been where the manufacture was stopped at or after the bringing of the suit, or the indications were that the defendants, having once been wrong-doers, were likely to be so again as soon as released from court. If a defendant has, before suit brought, abandoned the manufacture and sale of the infringing machine, and the court is satisfied that the abandonment was in good faith and final, the injunction ought to be refused, upon the principles of equity applicable to injunction. However, as we find that the defendants in this case are infringers, we think it well to retain the whole case under our control, and the injunction and order for an account may be made to apply to the manufacture and sale of both mills.

But the complainants must first file a disclaimer of the first claim. of their reissued patent, and this decree must be without costs. See sections 4917, 4922, Rev. St. U. S., and Gage v. Herring, 107 U. S. 646; S. C. 2 Sup. Ct. Rep. 819.

Mr. Justice MATTHEWS stated that he concurred in the conclusion and in the reasoning of Judge SAGE's opinion.

MCMILLIN and others v. ST. LOUIS & VICKSBURGH ANCHOR LINE.1

(Circuit Court, E. D. Missouri. November 1, 1884.)

PATENTS-USE OF STEAM TO OPERATE CAPSTANS.

The invention covered by letters patent No. 63,917, granted to John S. McMillin, April 16, 1867, is the use of the freight-hoister or nigger-engine of a vessel, by means of the shafting and gearing described in said patent, to rotate the capstan; and said patent does not extend to the use of an auxiliary engine in the manner described, unless such engine may also be used as a hoisting engine.

1 Reported by Benj. F. Rex, Esq., of the St. Louis bar.