FORM AND LOCATION, CHANGES IN. 1. The change of location of an element in a combination, where that chinge produces in substance no new combination nor a new operation, is not patentable. [H. Gross, 3. 2. Mere change of form or location in a mechanical structure is not the subject of a patent without showing that some new or materially-improved result is obtained. [* Pearl et al. vs. The Ocean Mills et al., 133. 3. The greatly-improved result attending a change in the form or location of parts when viewed in connection with the failure of the many experiments previously made to accomplish similar results by mere structural changes, has a great tendency to prove that they involve some functional difference beyond mere mechanical perfection and adjustment. [* Ibid., 133. 4. When changes of form involve functional differences, producing new or better results, they are patentable. [*The Swain Turbine and Manufacturing Company vs. Ladd, 166. 5. A change of location of a part in a combination, where there is no new function performed by the changed member in its new location, will not evade a patent. [*Adams vs. The Joliet Manufacturing Company, 304. 6. The fact that it does its work better than in the position occupied in the infringed machine is merely of degree, and makes no difference so long as the result is the same. [* Ibid., 304. 7. The patent of Isaac Eppinger for "bunch and plug tobacco," granted June 17, 1873, is valid, notwithstanding the essential difference from what preceded it in the art lies solely in the shape or form of the coil of tobacco. [*Eppinger vs. Richey & Boniface, 353. 8. The difference in form being productive of new and valuable results, it could not be said to be a matter of fancy or the exercise of mechanical skill. [*Ibid., 353. 9. Invention is evidenced from the long-existing evil which was thereby remedied, and which would have been cured long since in the art had it depended simply on mechanical skill. 1. Where a new combination of old elements, producing new and useful results, is patented, it is the established rule that the invention, if any, within the meaning of the patent act, consists in the means or apparatus by which the result is obtained, and not merely in the mode of operation independent of the mechanical devices employed. [*Fuller and Barnum vs. Yentzer and Scates, 218. (See Construction of Claims, 1, 6, 9, 10, 13; Construction of Specifications and Patents, 5,7; Infringement, 10; Invention, 8; Novelty, 3; Patentability, 14.) FRAUD. 1. Fraud is never to be presumed, but must be strictly proved; and particularly is this the case when record evidence is sought to be impeached. [Merrill and Merrill vs. Glidden, 11. GOVERNMENT-USE BY. (See Defenses, 2; Patents, 6.) INFRINGEMENT. 1. A patented combination is not infringed by a machine in which one of the ingredients is omitted. [*Dunbar and Hopper vs. Myers, Ex., et al., 140. 2. The patent covers dies constructed with the round and square portions of similar area, whereby the lateral swaging is effected before the header operates; and it is not infringed by the use of dies, the square portion of which is of greater area than the round, and the swaging and upsetting operations are simultaneously performed. [*Clark vs. The Kennedy Manufacturing Company et al., 152. 3. It does not constitute a new infringement to sell part of a patented device necessary to its operation, but not covered by the patent, when they have already been charged in the accountings for the sale of the patented portion. [* Buerk vs. Imhaueser et al., 161. 4. Birdsell's invention, construed to be for the combination of a pure thrashing-cylinder with pure hulling-cylinder, and defendant's present machine, a combination of two hulling-cylinders, and although the first cylinder may separate the straw from the heads by a rubbing action, it is not a pure thrashing-cylinder, and therefore not an infringement of Birdsell's claim. [*Birdsell vs. The Hagerstown Agricultural Implement Company, 203. 5. Where the invention is embodied in a machine, the question of infringement is best determined by a comparison of the machine or apparatus constructed or used by the respondent with the mechanism described in the specification of complainant's patent. [*Fuller and Barnum v8. Yentzer and Scates, 218. 6. A patent may be granted for a new combination of old elements or ingredients if it produces a new and useful result; but in such case the invention consists merely in the new combination, and the patent therefor is not infringed by a substantially different combination, even though it includes the exact same elements or ingredients. [*Ibid., 218. 7. The rights of a patentee for a mere combination of old ingredients are not infringed unless it appears that the alleged infringer made, used, or sold the entire combination. [*Ibid., 218. 8. The substitution of a known equivalent for one of the ingredients of a patented invention is not a good defense for an infringer; but if the ingredient was a new one or performed a substantially different function, or was not known at the date of the patent as a proper substitute for the one omitted, there is no infringement. [* Ibid., 218. 9. The infringement of a patent is not avoided by the substitution for one member of the combination of an old ingredient performing the same function, and well known at the date of the patent as a proper substitute for the one omitted. But the rule is otherwise if the ingredient substituted is a new one, or performs a substantially different function, or was not known at the date of the patent as a proper substitute for the one omitted. [*Fuller and Barnum vs. Yentzer et al., 227. 10. A claim for "a tuck-creasing mechanism, such as described, having its upper and lower parts connected, and together adjustable as to its relations with the needle of a sewing-machine, and operated by the sewing-machine, as set forth," is not infringed by every form of mechanism by which a creaser is attached or adjusted to a sewing. machine by which unity of adjustment is accomplished. [* Fuller and Barnum vs. Yentzer et al., 227. 11. The patents granted to David C. Price for improvements in portable show and circus seats are not infringed by the use of chair-seats placed upon every alternate board of the ordinary circus-seats. [* Price vs. Kelley, 235. 12. One device may be the equivalent of another in the general combination with other elements, and yet, when taken by themselves as separate pieces of machinery they may not be the same, and the use of one not the infringement of a patent for the other. [* Cochrane et al. vs. Deener et al., 242. 13. While the parts of machinery which go to make up a combination could not, when separately considered, be regarded as identical or conflicting with those described in a patent, yet having the same purpose in the combination, and effecting that purpose in substantially the same manner, they are the equivalents of each other in that regard. [* Ibid., 242. 14. The construction of a concrete pavement in sections, by forming each section against the adjoining one, and while the material is still soft inserting a trowel to make a joint between them, is an infringement of the patent granted to J. J. Schillinger, May 2, 1871, for an improved concrete pavement. [* Schillinger vs. Gunther, 260. 15. The patentee forms his joints by the permanent interposition of some material between the blocks, which material also serves in some degree to make a tight joint, while the defendant forms a joint by the insertion of a cutting-instrument between the blocks, and then removing the instrument, leaving the joint an open one for the time. [* Ibid., 260. 16. The substitution for one part of the operating mechanism of a combination the equivalent of that omitted, does not avoid an infringement. [* Robertson et al. vs. Blake, 266. 17. The patent for a lamp, can, or barrel, packed in part with an absorbent or finelygranulated material, and over them a body of wire-gauze or perforated thin plate, either rolled up like paper scrolls or put flat together like book-leaves, is not infringed by the use of a lamp containing cotton covered with a layer of asbestus or porous fireproof cement, and covered with one thickness of wire-gauze. [*Ashcroft vs. Hollings, 270. 18. Any device which secures substantially the same results as the patentees, by the same or equivalent mechanism, is an infringement. [* Vogler vs. Semple, 271. 19. A patent for a process is not infringed by the sale of an article similar to that produced. [*Merrill vs. Yeomans et al., 279. 20. The patent of A. H. Wonson for an improved paint to prevent the fouling of ships' bottoms by the adhesion of barnacles, sea weeds, &c., is for a paint composed of a soluble vehicle or medium, oxide of copper (of which the other salts of copper are not considered the equivalents), and such earthy or mineral matters as separate the particles of the oxide and retard its solution, and such patent is not infringed by the use of a paint containing in place of the oxide of copper arsenite of copper. [* Wonson vs. Gilman et al., 284. 21. A patent for a machine for forming heads on cartridge-shells, in which the shells are carried through a die on the mandrel, and both mandrel and die are moved forward together, forcing the closed end of the shell against a stationary header and squeezing it down to form the flanges, is infringed by the use of a machine in which the die is stationary and the header advanced after the mandrel has carried the shell into position. [*The Union Metallic Cartridge Company vs. The United States Cartridge Company, 289. 22. A copyrighted design for playing-cards is infringed by the manufacture of cards which, though differing in some repects, exhibit a striking similarity in those distinctive features of the main design wherein the cards registered differ from other playingcards previously used. [* Richardson vs. Miller et al., 291. 23. It is no answer to the charge of infringement that the whole of the design has not been copied, if those features of it have been appropriated which substantially embrace the novelty of the conception and the value in the application of the art of the designer. [* Ibid., 291. 24. The doctrine is as applicable to prints and engravings as to books, that one cannot take the vital part of another's work, although it may be a small part in quantity, or insert distinct and material portions of one work into the general texture of another, constituting its chief value, without being chargeable with infringement. [* Ibid., 291. 25. Where an invention is described as consisting of the combination of two elements, and one of them proves defective, or is not used by the infringer, he will, never. theless, be restrained from using the remaining one, if the patentee has included it in a separate claim. [* Henderson et al. vs. The Cleveland Co-operative Stove Company, 293. 26. To constitute infringement, there must be, first, similarity of design; second, substantial identity of purpose or result. [* Ibid., 293. 27. Similarity of design being established, an infringement occurs if a result incident to the construction of a device is the same as that of the complainant, even though the primary purpose of the construction is for a different object. [* Ibid., 293. 28. Experimental making and using of a patented invention is a technical infringement that may be restrained. [*Albright vs. The Celluloid Harness-Trimming Company, 311. 29. When a patentee gets his remuneration by patent or license fees, a recovery of the license or patent fee from an infringer, and its payment, authorizes the defendant to use the particular articles for which such recovery had been had. [* Perrigo et al. v8. Spaulding, 320. 30. When a patentee gets his remuneration in the exclusive use of his machine and the sale of its products, a recovery will not give the infinger auy right to the further use of the infringing machines. [* Ibid., 320. 31. When a patentee gets hie remuneration by the sale of his patented machine for use by others, a recovery of profits and damages from the manufacturer of an infringing machine is a full compensation for his injury, and places the patentee in the same position as if he had made and sold the machine himself, and confers on third parties the right to use the machine while it lasts. [* Ibid., 320. 32. When a full recovery and satisfaction from one party has been had the patentee has obtained all that the law gives him, and the particular article or machine becomes, in effect, licensed by the patentee, and may be used so long as it lasts, free from any further claim by the patente e. [* Ibid., 320. 33. The Cummings patent for a plate of hard rubber or vulcanite is not infringed by a plate made of celluloid, the product and process being essentially different. [* Goodyear Dental Vulcanite Company vs. Davis. Same vs. Defendants in sixty-seven other cases, 327. 34. Cummings's in vention includes alone the article or manufacture made by the process described, and is only infringed by using the materials described by him or their known equivalents, in the described process, or such as in the process are mere substitutes of one material for another without change in process or effect, producing thereby a product the equivalent of his in the properties and functions described. [* Ibid., 327. 35. Nobel's patent for dynamite describes a mixture of nitro-glycerine and a substance which possesses a very great absorbent capacity, preferring infusorial earth, rendering the mixture more safe and convenient for transportation, storage, and use than nitro-glycerine, without loss of explosive power. These advantages are attained by the defendants by employing, instead of absorbent substances, mica scales, which become coated with the liquid. Although admitted to be an improvement, still it is subsidiary to Nobel's invention and an infringement of this patent. [* The Atlantic Giant Powder Company vs. Mowbray et al., 331. 36. Because the invention has been used in au imperfect condition, or altered slightly in one particular without serious loss, it is no proof that it was no invention, or that the use of it in its altered condition was no infringement. [* The Railroad Companies vs. Turrill, 341. 37. The infringement held to be not merely of the new parts or elements, but of the combination of new and old, as a whole. [* Ruggles vs. Eddy & Shaver, 357. 38. That an infringer has added something to the devices combined by a patentee does not enable him to use the combination without being answerable. [*Herring et al. vs. Nes n et al. Same vs. Gage et al., 359. 39. R., the agent of the patentee, authorized the firm of H., C. & N., for a valuable consideration, to construct for use, at their place of business, the device (a furnace) involved in the patent. The defendants, who had acquired all the rights of the firm of H., C. & N., were sued for infringemen, because of the use of the device: Held, first, that after the transaction with H., C. & N., the patentee had no right or interest with respect to the particular device and its use during the time of his original patent, and acquired none by the extension of his patent afterward; second, that those who constructed the device under the authority of the patentee, and the defendants who acquired it of them, have had and still have the right to use it at the particular place, clear of any claim of infringement by the patentee or his representatives. [* Black and Fitzgerald vs. Hubbard and North, 374. 40. Although the right to use may not have been acquired by lawful conveyance (according to the statutes) of that right as a subject of conveyance by itself, it was acquired by constructing the device for use, with the consent of the patentee obtained and paid for. [* Ibid., 374. 41. The swaging of the several parts of the sieve together being an essential element |