Toepfer v. Goetz, 41 O. G. 933, 31 Fed. Rep. 913. If, upon the other hand, the patentee has taken a decided step in advance of the state of the art at the time his application was filed, the courts will, if possible, construe the language of his claim so as to give him the full benefit of his improvement. Turrill v. Railroad Co., 1 Wall. 491; Rubber Co. v. Goodyear, 9 Wall. 788.

In the case under consideration, Mr. Gray claimed broadly, in his second original claim, the combination of the stationary and movable rolls, mounted in such way that they could be adjusted both vertically and horizontally. In his third claim he limited himself only to "a roll mounted at its ends in arms or supports arranged" for vertical and horizontal adjustments. These claims were rejected in view of the Lake patent, and Gray thereupon reformed and limited them. While, of course, we are bound to acquiesce in his action, we are not fully satisfied that he was not entitled to broader claims than he actually submitted to. Undoubtedly a horizontal adjustment was provided for in the Lake patent, and some of the drawings would indicate that a vertical. adjustment was also possible, but there is some doubt as to whether it was such a vertical adjustment as is contemplated in the Gray patent. It is true that Lake, in his preamble, states that his invention "relates particularly to means for varying the relative heights of the axes of the rollers to each other, and also their relative horizontal distances," but he also states that it was "for the purpose of producing a greater or less pressure of the one roller on the other;" and he further states that "the pressure of one roller upon the other depends upon the variations of the relative height of their axes to each other. This height may be altered, according to the pressure required, by displacing the block carrying the axle with the eccentric, and by adjusting the set-screws arranged beneath the bearings of the adjustable roller." In all the drawings of the Lake patent where a vertical adjustment is provided for, it appears that the two rollers are not upon the same horizontal plane, but at an angle of 45 degrees or less to each other, and that the adjustment was intended to regulate the pressure of one upon the other, and not an adjustment for tramming as provided in the Gray patent. It may be doubtful, however, whether this makes any difference in the principle, since it appears that there was provided an effective, though somewhat primitive, means of vertical adjustment, by a set-screw beneath the movable roller.

But, conceding that in the matter of the double adjustment, Gray was anticipated by Lake, it is quite evident that his machine, at least so far as concerns the vertical adjustment, is decidedly in advance of the other, if such adjustment was not provided for a different purpose. The means used to accomplish these adjustments in the Gray patents are so unlike those employed by Lake that the questions of patentability, novelty, and of superior utility can hardly be considered open ones. Indeed, their dissimilarity is such that it is quite immaterial to point out in detail the points of difference. About the only feature common to both is the use of a lever and an eccentric, though in Lake's patent they are used only for the purpose of horizontal adjustment, while in Gray's they are also

used for vertical adjustment. Perhaps Gray was entitled to broader claims than he actually made, but, at any rate, we are satisfied that he is entitled to a liberal application of the doctrine of equivalents.

None of the devices claimed as anticipations, except that of Lake, show a combination of horizontal and vertical adjustment, although devices representing the different elements of plaintiff's combination are numerous. It is clear that his patent cannot be defeated by proof that part of his combination is found in one mechanism and part in another. Walk. Pat. $66; Bates v. Coe, 98 U. S. 48; Parks v. Booth, 102 U. S. 104. Thus, the Dingler model for grinding paint shows three rolls, the middle one of which is fixed, and the outer ones movable horizontally by springs in the shape of a bow, at each end of the rolls, connecting each movable bearing to a rod, which is also connected with an eccentric mounted upon a shaft. This device is not used for opening or adjusting the distance between the rolls, but merely for the purpose of keeping up a constant pressure of the two adjustable outer rolls against the fixed roll. There is no stop to prevent actual contact of the rolls, and determine the grinding adjustment; the only object of the eccentric being to increase or diminish the pressure, as coarse or fine grinding is desired, but never to separate the rolls. In the Nagel and Kaemp patent there are means provided for simultaneous horizontal adjustment of the two ends of a movable roll by a yoke or bell-crank lever of the first order. Not only is there no vertical adjustment, but there are no means of adjusting the two ends of the movable roll separately, or adjusting for "tram," as it is called. The only adjustment possible is that of both ends of the roll simultaneously for grinding.

Practically the same may be said of the Schacht machine, which also contains means for the simultaneous adjustment of the two ends of the movable roll, but no vertical adjustment, and, of course, no provision for tramming. In the Mechwart American patent, No. 251,124, there is a horizontal adjustment provided by means of a lever held in position by weights instead of springs, and in this arrangement it bears some resemblance to the Lake patent, but it appears to be but a clumsy contrivance, as compared with the American machines. There is here also no arrangement for vertical adjustment. Indeed, while the practice of crushing wheat by roller action was adopted by American millers, the mechanism of the foreign mills for adjusting these rollers proved so clumsy and inadequate that the machines themselves speedily went out of use.

In short, none of these prior patents, except Lake's, contain a suggestion of the underlying principle of plaintiff's patent, and are chiefly valuable as showing the extremely imperfect state of the art at the time. Gray made his application. In the Lake patent there is, it is true, a provision for vertical, as well as horizontal, adjustments, sufficient, probably, to disentitle Gray to the broad claims of his original application; but it is very doubtful, in our mind, whether the Lake machine was ever intended to be or is susceptible of anything more than the regulation of the pressure, and his adjustments were accomplished by such rude de vices, as compared with those of Gray, that we think his claims, unneces

sarily restricted perhaps, are entitled to great liberality in construction. Coming now to the question of infringement, we are compelled to analyze in some detail the elements of plaintiff's combination, and to compare them with corresponding features of defendant's machine. The second and third claims contain substantially four elements: (1) A roll; (2) upright or sustaining swinging arms at each end of the roll; (3) an eccentric vertically adjustable pivot located at the lower end of the arm; (4) devices substantially as shown, acting upon the upper end of the arm. The first two of these elements are undoubtedly contained in the Mawhood roller-mill, represented by defendant's machine, except that the swinging arm or lever of the Mawhood device is pivoted in its center, instead of at its lower end; in other words, it is a lever of the first, instead of a lever of the second, order. This is admitted by defendant's expert to be immaterial, as the different "orders of levers may be interchanged indiscriminately so far as the lever functions are concerned in modifying and converting motions." The third element is not exactly reproduced in defendant's machine. Instead of an eccentric, adjustable pivot, located at the lower end of the arm, there is a non-adjustable pivot located in the center of the arm, midway between the ends, which means merely that his lever is of the first, instead of the second, order; while the adjustable pivot is contained at the outer end of the cross-arm, supporting the main arm which carries the roller. The operation of the two is practically identical. Indeed, the adjustable pivot might have been located in the main arm, had the device regulating the grinding adjustment been located above, instead of below, the rollers. It is notable in this connection that Gray, in the sixth and seventh figures of his drawing, contemplated, as an alternative of the devices shown in Fig. 1, a lever pivoted in the middle, and operated at the outer end by a screw, to elevate or depress the swinging arm, D, located at the other end. It may be said in general that anything named by the patent as an equivalent will be so regarded by the court. Hayden v. Manufacturing Co., 4 Fish. Pat. Cas. 86. And while the defendant has not adopted the exact device suggested by Gray, we think the deviation toc trifling to avoid the charge of infringement.

Before considering the parts of defendant's devices corresponding to the fourth element of Gray's second and third claims, it is desirable to analyze his fourth and fifth claims, which define more particularly the devices acting against the upper end of the arm. The fourth and fifth claims are for a combination of (1) a movable roller-bearing; (2) the rod, G; (3) an adjustable stop device to limit the inward movement of the bearing; (4) an outside spring, urging the bearing inward; (5) means for adjusting the spring; and (6) a stop and holding device at the opposite end of the rod from the spring. There is no doubt the first two of these elements are also found in defendant's machine. It is true that in the Gray patent the rod, G, is located above, and in defendant's machine below, the rollers; but the location is not specified in the claim, and, even if it were, it would be immaterial. The change of the location of an element in a combination, where there is no new v.39F.no.1-3

function performed by such element in its new location, wil ot avoid the charge of infringement. Adams v. Manufacturing Co., 3 Ban. & A. 1; Ives v. Hamilton, 92 U. S. 426; Knox v. Mining Co., 6 Sawy. 430. Nor is it of any greater consequence that Gray's operated as a drawrod to coerce the two devices together, while defendant's is a thrustrod, operating in a different direction. Ives v. Hamilton, 92 U. S. 426; Rodebaugh v. Jackson, 37 Fed. Rep. 882. The third element, viz., the adjustable stop-device, to limit the inward movement of the bearing, is represented by the nut, "1," of the Gray patent, and by the nut, "1," outside the spring of the Mawhood machine.

(4) The outside spring urging the bearing inward is lettered, "H," in both patents. What is meant by the term "outside spring " is somewhat uncertain. The expert See defines it as "a spring located on the outer side of the thing it is intended to exert its operative pressure upon, as distinguished from a spring located on the inner side, pressing outwardly against the thing which it is to exert its pressure upon.' Plaintiff's expert Smith considers the word "outside" as a word of description only, and not a word of limitation. "In the machine of the defendant the spring acts against the lower end of the bearing, D. In order that the movable roll may be moved towards the fixed roll, or inward, the lower end of the bearing must be moved outward by the spring. In the machine of the patentee the spring acts against the upper end of the bearing; and, in order that the roll may be urged inward, the upper end must be pressed inward by the spring." However this may be, there is no doubt but that both springs operate alike, to press the movable roll against the fixed roll, and that the different kinds of springs-as for instance, those operated by contraction, instead of expansion-are, like the different orders of levers, mere matters of mechanical contrivance, or of convenience, or ease of construction. The object of the spring in both cases is to permit the movable roll to recede from the fixed roll whenever any foreign, hard substance passes between them, so that the surfaces of the roll may not be damaged.

(5) The means for adjusting the tension of the spring, the hand-nuts, j, in both cases, differ only in the fact that in plaintiff's machine this nut is located outside, and in the defendant's machine inside, the spring. Their operation is identical.

(6) The stop and holding devices at the opposite ends of the rod, G, are an eccentric, shown in Fig. 8 in plaintiff's patent, operated in one case by a wheel and in the other by a lever.

In short, we regard defendant's entire machine as simply a re-arrangement of the Gray combination, for the obvious purpose of an attempt to avoid his patent. The result attained by both combinations is the same. The means adopted to attain such result differ only in the location of the several elements, and such dependent differences as are made necessary by such change of location. As we had occasion to observe in Rodebaugh v. Jackson, the rearrangement of an old combination, where each element operates practically as before, is not patentable, unless a new or greatly improved result is obtained. Walk. Pat. § 41; Woodward v. Dinsmore,

4 Fish. Pat. Cas. 163, 169.

THE DOWLING PATENT.

Plaintiff also claims for an infringement of the first, third, and fourth claims of the Dowling patent. The fourth claim contains the clearest statement of the combination, and is the only one which is necessary to be considered. It reads as follows:

"(4) In a grinding-mill, the combination of two grinding-rolls, the feedroll above the same, a hopper above the feed-roll, and a toothed agitator centrally located within the hopper and extending lengthwise above the feed-roll, and mechanism for reciprocating said agitator in a lengthwise direction."

The prominent feature of this combination is the centrally-located agitator, introduced for stirring up the material, and thereby keeping a continuous and uniform flow. The tendency of the material is to bank up or bridge over in the hopper when soft. This reciprocating comb prevents the bridging of the material, by working out the center, and permitting the loosened material to fall on the feed-roll. This impediment in the flow is most liable to occur in the reductions of the wheat after the first reduction, of which there are usually six or seven. It is also liable to occur in the soft material incident to finishing the middlings reductions. Agitators of this description, for the purpose of breaking up lumps in such material as plaster, ashes, lime, or manure are not uncommon, and their modes of operation are practically the same. In Caine's patents, No. 78,423, and No. 137,051, for an improved machine for sowing fertilizers and seeds, there is shown a revolving stirrer, "E," corresponding to the Dowling feed-roll, "D," and a reciprocating agitator, "F," having saw-like teeth on its lower edge resting on or near the feed-roller. The rod of this agitator is reciprocated by a cam, substantially in the same manner as the plaintiff's. It is true, this agitator is not centrally located within the hopper, but lies flat against one of its sides. But the patent to T. J. West-No. 100,573-has an adjuster which is centrally located in a machine, for sowing fertilizers, and the patent to H. E. Keeler-No. 254,140-shows a similar device similarly located, in a fanning-mill. Like devices are shown in other patents offered in evidence. In short, Dowling's combination of the two grinding-rolls, the feed-roll above the same, a hopper above the feedroll, (used in all roller-mills,) and the toothed agitator of the Caine, West, Keeler, and Mahaffy patents, centrally located, as in the West and Keeler patents, and the mechanism for reciprocating such agitator in a lengthwise direction, is but an aggregation of old elements adapted to a new machine, but producing practically the same results. We do not think that any invention is involved in putting these devices together, and placing them in the hopper of a flouring-mill.

THE MARMON PATENT.

Plaintiff also claims an infringement of the first, second, and third claims of the Marmon patent, the first of which only it is necessary to notice. It reads as follows:

"The combination, in a roller-mill, of the supporting frame-work, the rollshafts, a counter-shaft extending from end to end of the machine, substan