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In making augers or bits of the above description (viz, curved or gage-lip augers), it is necessary to leave a sufficient thickness of metal at the bit to admit of the point or screw being formed, after which the lips require to be reduced and brought to a knife-like edge at their cutting parts, which process is termed upsetting, and has hitherto been done by hand; but the most skillful workman can scarcely obtain a perfect form of cutters, and perfect uniformity in the two lips is rarely ever obtained. In my invention I employ griping or clamping jaws, that grasp and firmly hold the augerblank just above the lip, the jaws, being fitted to receive the helical threads of the auger blank, and, in connection with these jaws, swaging or drawing dies, to which is imparted a rotative movement while they are in contact with the lips of the blank, such rotative movement upsetting the auger-lips and forming them to shape against the griped dies.

The machine consists, in general, of two jaws, connected at one end by a pivot, which have dies inserted in their opposite ends to receive and hold the screw portion of the auger while its cutters or lips are being operated upon. The specification describes the dies as follows: "The upper surfaces of the dies B B are grooved or hollowed out to conform to the desired shape of the lips or cutters, as shown at C C." An arbor is fitted upon the socket of a curved standard, which arbor rotates and moves longitudinally to and from the auger or bit. To the lower end of the arbor the swaging or drawing dies are fitted. These dies act upon the lips or cutters of the bit when the arbor is moved, and the lips are drawn out to a thin edge against the ends of the jaws by the rotative and forward action of the swaging-dies. The mechanism by which the various parts are operated is fully described in the specification; but a sufficient description has been here given for the purposes of this case.

The first two claims of the patent are alleged to have been infringed. These are

1. The combination of clamping-jaws, having dies formed to receive the screwthread of an auger, with a rotative die for upsetting the auger-lips, the jaws and die acting in conjunction to draw the lips, and the combination being substantially as shown and described.

2. The described method or drawing of forming the lips of augers, the auger-blank being first clamped in jaws formed to receive the auger-screw (the lips extending beyond the jaws), and the lips being then upset and drawn against the ends of the jaws by the rotative and forward action of a die, the ends of the jaws being formed to shape the lips under the action of the die.

Infringement by the defendant of these two claims is not denied. The defense which was relied upon at the trial was want of novelty of the patented machine, resulting from the public use prior to the date of the invention of a machine made by Ransom Cook, and known as the Cook machine.

After the end of the blank had been cut or stamped into a tridentlike shape, and after the body of the blank had been twisted, the Cook machine receives the bit-blank in clamping-dies, which fasten into the twist of the auger. A die, called upon the trial a forming-die, and by the mechanics who operated the machine called a wringer, being a transverse bar with a cavity in the center, and with a spiral incline out

side of the center, was then brought forward in contact with the end of the central prong of the bit and rotated, by which rotation the two outside prongs were twisted, so that they were very nearly at right angles with the axis of the blank. At this point the parties were at variance upon a question of fact, the defendant contending that, by this rotating and forward motion of the forming-die or winged bar, the upper lips or cutting-edges were substantially formed as in the Swan machine, and that the floor-lip was drawn out abreast of the central prong in a line with the thread upon the pivot of the auger. It was agreed that in the Swan machine, by the action of the swaging-dies upon the bit held in the clamping-dies, the floor-lips were drawn or rolled out, or plated out, and spread into their proper shape, and the cutting-edges were brought into line with the thread of the pivot. The plaintiff insisted that the action of the Cook wringer was nothing more than a twisting of the lips, and that subsequently the metal must be drawn into proper shape, and the proper position must be given to the lips by a hand operation, which required at least one or two reheatings and careful labor.

I am satisfied from all the testimony that the primary object of the rotating action of the wringer was to twist the external prongs into a position from which lips could thereafter be formed, and that incidentally this rotating action upon the heated metal might have drawn the metal to a limited extent; but that, as a rule, it was necessary to take the blank from the machine, and complete the drawing out operation and the spreading of the metal and the adjustment of the lips in line, with a hammer upon the horn of an anvil, and that previously to this hand operation an additional twist was sometimes given to the lip with a pair of tongs after the blank had been taken from the machine, and that these hand operations were not resorted to merely to "true up" or to remedy occasional incompleteness in the effect produced by the wringer, but were resorted to in order to accomplish what the Cook machine was, from its construction, not able to accomplish.

It will be remembered that it is necessary to draw the metal out in order to form a floor-lip, and that the cutting-edge must start from the base of the screw and continue in a line therewith. It is, therefore, necessary that the thin places at the root of the screw where the metal has been cut out must be corrected. This drawing process is effected in the Swan machine by the two dies coming in contact with the metal upon its opposite sides and the swaging and rolling action of the swag. ing-die. The under side of the metal rests on the bolding-die, and the upper side is pressed upon by the rotating die, and the heated malleable iron is plated out and forced into shape by these two opposing surfaces acting together. In order to draw the metal forward into proper shape the under side of the lip should rest upon a beveled surface, and be supported by that surface, and there must be an opposing pressure upon the upper side, as well as a simultaneous forward movement. The Cook machine did not draw forward the lips, because there was no adequate

support on the under side. The forming-die or wringer twisted the lips, but did not press them against an opposing surface, and by the simultaneous rotary motion draw forward the malleable metal. The superiority of the Swan machine consists in the form of the surfaces of the dies, against which the rotating dies press the metal. If the Swan dies were substituted for the Cook dies in the latter machine the plating-out process could be accomplished, although it is very probable that the machine would not be practically successful. It thus appears that the Cook machine was not, in fact, an anticipation of the Swan invention.

But the defendant insists that, inasmuch as the first claim of the Swan patent is for a combination of clamping jaws, having dies formed to receive the screw-thread of an auger, with a rotative die for upsetting the auger-lips, the jaws and die acting in conjunction to draw the lips, and inasmuch as the dies upon the clamping-jaws are not particularly described, the claim is broad enough to include any dies which will draw or give shape to any portion of the lips, and that such dies have been clearly proved to exist in the Cook machine, which coact to some extent in giving shape to the lips.

The object of the invention is stated in the patent to reduce and bring the lips by machinery to a knife-like edge at their cutting parts. The invention consists, generally, in the combination of the two sets of dies, so that the action of the rotating dies upon the lips clamped by the griping dies may upset and form the lips. It is plain, from the description, that the rotating dies are to act upon the metal upon the upper surfaces of the griping dies, which upper surfaces are grooved or hollowed out, so as to conform to the desired shape of the lips or cutters. The first claim should be construed in connection with the specification, and in view of the actual invention and of the state of the art, and is for a combination of clamping jaws with the described dies and a rotative die, the two sets of dies so acting in conjunction as to drawthat is, to form into shape-the lips, and shaped relatively to each other, substantially as shown. The essential feature of this claim is that the described combination should so coact that the actual and necessary result should be to draw the lips, which result is to be attained in substantially the same way in which it is accomplished by the patented machine, which is the drawing of the lips against the ends of the jaws by the rotative and forward action of a die, the ends of the two sets of dies being formed relatively to each other, so as to shape and not merely to turn over the lips under the action of the rotating die. If the jaws and die are shaped relatively to each other, so as to accomplish this result, they are within the patent, notwithstanding a variation in form from that which is described. The patent is not, therefore, broad enough to include the Cook mechanism, because the result of the coac. tion of the Cook dies is not to form into shape or plate out the lips, but

is generally to twist the lips into a position from which they can subsequently be drawn out into the proper shape.

And although the Swan dies in the Cook machine might accomplish the drawing-out result, that fact does not permit their unauthorized use in the combination, because the Swan dies were unknown, and did not apparently exist previously to their invention by Swan.

If the plaintiff is the exclusive owner of the mechanism described in the first claim, it is not denied that he has an exclusive right to the process described in the second claim.

Let there be a decree in favor of the plaintiff for an accounting, and a reference to a master.

[Supreme Court of the United States. ]

JOSHUA MERRILL, APPELLANT, vs. DAVID M. YEOMANS AND DANIEL J. GOSS, AS D. M. YEOMANS & GOSS.

O. G., vol. xi, p. 970.

Appeal from the Circuit Court of the United States for the District of Massachusetts.-Decided October Term, 1876.

A patent for a process is not infringed by the sale of an article similar to that produced.

The claims in a patent are to be considered as distinct from the description contained in the specification, and as representing what part of the matter described the patentee claims as his invention, and for which he asks protection.

Inventions or discoveries are usually improvements upon some existing article, process, or machine, and are only useful in connection with it. It is necessary, therefore, for an applicant to describe that upon which he engrafts his invention, as well as the invention itself.

When the invention is of a new combination of old devices, it is necessary to describe with particularity all the old devices, and then the new mode of combining them. While it is essential that the specification should describe such matters, both old and new, as are necessary to an understanding of the invention, the claim must contain a distinct and specific statement of what the applicant claims to be new and of his invention.

One who proposes to secure a monopoly of certain inventions at the expense of the public should set forth with clearness and precision the thing which no one but himself can use or enjoy without paying him for the privilege of doing so. In a claim to "the above-described new manufacture of the deodorized heavy hydrocarbon oils suitable for lubricating and other purposes, free from the characteristic odors of hydrocarbon oils, and having a slight smell like fatty oil, from hydrocarbon oils, by treating them substantially as is herein before described," the word "manufacture" may be used to express the process or the product thereof, but when taken in connection with the words "by treating them substantially as is herein before described," it renders the claim in effect to the new mode of manufacturing hydrocarbon oils by treating them as hereinbefore described.

The inventor of an article is entitled to protection therefor, however produced, and there is no reason why an applicant for a patent, if he had in his mind a claim for the article produced, should limit his claim by a description of the process. The courts are inclined to give a patentee the benefit of a liberal construction of the patent, and when it appears that a valuable invention has really been made, to up

hold that which was invented, and which comes within any fair interpretation of the claim; but when there are three inventions described, and but two claims made, each of which is valid and for the invention described therein, the court cannot give effect to the third invention, which the patentee has failed to claim.

The developed and improved condition of the patent law, and of the principies which govern the exclusive rights conferred by it, leaves no excuse for ambiguous language or vague descriptions. The public should not be deprived of rights supposed to belong to it without being told what it is that limits these rights.

The interests of the public demand that the claims in a patent should clearly and distinctly define and limit the actual invention claimed by and secured to the patentee.

Mr. Justice MILLER delivered the opinion of the court:

The appellant in this case, who was complainant in the circuit court, obtained a patent in May, 1869, for a new and useful invention, which relates to the heavy hydrocarbon oils, and he sued the appellees, who were defendants in that court, for an infringement of his patent.

The defendants were dealers in oils, and not manufacturers of them. If the appellant's patent was for a new oil, the product of a mode of treating the oils of that character which he describes in his application, the defendants may be liable, for they bought and sold, without license or other authority from him, an oil which is proved to be almost if not quite indentical with the one which he produced. If, however, appellant's patent is only for the mode of treating these oils invented and described by him-in other words, for his new process of making this new article of hydrocarbon oil—then it is clear the defendants have not infringed the patent, because they never used that process, or any other, for they manufactured none of the oils which they bought and sold.

The counsel for appellant here maintain that his patent is for the new article, and is not for the process, though he describes it fully, by which that article is produced. The appellees insist with equal earnestness that the patent is exclusively for the process by which the new oil is made.

The issue thus presented must be decided solely upon a correct construction of the plaintiff's patent, and the accompanying specifications, in which, as required by the act of Congress, he makes the statement of his invention.

No such question could have arisen if appellant had used language which clearly and distinctly points out what it is that he claims in his invention.

We use the word claim as distinct from description. It must be conceded that the appellant's specification describes with minuteness and precision both the instrumentality and the process by which he makes the oil in question. And in regard to a part of the apparatus which he uses, he makes a distinct claim for its invention, and that is not in dispute here. He also describes with fullness and accuracy the process of distillation by which he produces this oil. He gives the temperature to be used, the mode of heating, the degree of rapidity or delay to be used

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