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regulator," then used by the defendants. It had no reference whatever to the "expander patent," afterwards used by defendants. There is no charge in the bill that the combination of this last patent infringes the complainant's patent. There was no evidence offered to prove such to be the fact. The master's report declares it not to be an infringement of the combination of the third claim,—it is patent to the eyes of any one who will examine the models that it does not,yet, because it used the expansive power of metals, the defendants are muleted in the sum of $7,033 damages, not for invading the complainant's rights, but for evading his patent by a patented invention for a different combination. I forbear to make any further remarks on this enormity, because it is affirmed by the division of the court, and their opinion has, happily, not been compelled to defend it by argument. As it is without precedent, so neither can it be cited as such hereafter.

IV. Lastly, after a very long and laborious investigation, the master has found that the profit of making and vending the machine charged as an infringement is ten cents on each regulator. This finding of the report was excepted to by the complainant. The court overruled the exception and confirmed the report on this point; and, nevertheless, assess the damage at tenfold the amount. By what process of reasoning or arithmetic, on what facts or what principle of law, this astonishing and ruinous decree is founded, it does not undertake to explain. I can conceive of no other ground than that the court have calculated the whole profit of the stove, as was done in the case of Seymour v. Mc Cormick, and overruled by this court.

Believing, therefore, that the decree of this court, so far as it affirms any portion of the decree of the Circuit Court, is not only unsustained by evidence, but contrary to the law as heretofore established by this court, I cannot give my assent to it.

CYRUS H. MCCORMICK, APPELLANT, v. WAITE TALCOTT, RALPH EMMERSON, JESSE BLINN, AND SYLVESTER TALCOTT, SURVIVORS OF JOHN H. MANNY.

(20 Howard, 402.)

1. The reaping-machines made by Manny do not infringe McCormick's patent, either as to the divider, the manner in which the reel is supported, or the combination of the reel with a seat for the raker.

2. McCormick not being the original inventor of the machine called a divider, but the patentee of only an improvement for a combination of mechanical devices, could not hold as an infringer one who used only a part of the combination.

Opinion of the court.

3. The manner of supporting the reel in Manny's machine is not like that in McCormick's, and was used before McCormick's first patent.

4. With respect to the raker's seat, McCormick's patent was for a combination of the reel with a seat arranged and located according to his description. Bat Manny's arrangement differs from McCormick's, in principle as well as in form and combination, and is, therefore, no infringement of McCormick's patent.

THIS was an appeal from the Circuit Court of the United States for the Northern District of Illinois, sitting as a court of equity.

The bill which was filed by McCormick alleged that the defendants in error had infringed his patent for a reaping-machine, called upon them for an account, and prayed for an injunction. The defendants denied the infringement, and claimed a right to construct their machines under letters patent granted to John II. Manny. The Circuit Court dismissed the bill, and McCormick appealed to this court.

McCormick's patent had been twice before this court, as will be seen by referring to 16 Howard, 480, and 19 Howard, 96. The same claims, viz., the fourth and fifth of the patent of 1845, were involved in the case in 19 Howard, and the remaining claim, viz., that relating to the seat of the raker, under the patent of 1847, was before the court in 16 Howard, only that it now comes up under a reissued patent in 1853.

The reporter despairs of giving any intelligible account of the argument in this case. The record was upwards of one thousand pages of printed matter, of which seven hundred and fifty pages were the depositions of witnesses; and the court-room was filled with models and drawings, introduced upon either side, to which constant reference was made by the counsel.

The case was argued by Mr. Reverdy Johnson and Mr. Dickerson, for the plaintiff in error, and by Mr. Stanton and Mr. Harding, for the defendants.

Mr. Justice GRIER delivered the opinion of the court.

The bill charges the defendants with infringing two several patents granted to complainant for improvements in the machine known as McCormick's reaper. One of these patents bears date the 31st of January, 1845; the other on the 24th of May, 1853, being the reissue of a previous one, dated 23d of October, 1847. The defendants are charged with infringing the fourth and fifth claims of the patent of 1845, and the second claim of the reissued patent of 1853.

I. The first infringement charged is that of the divider, or that part of the reaping-machine which is defined "as an arrangement or

Opinion of the court.

apparatus for separating the grain to be cut from that which is to be left standing."

The claim is as follows: "4th. I claim the combination of the bow, L, and the dividing-iron, M, for separating the wheat in the way described."

The description referred to is as follows:

"The divider, K, is an extension of the frame on the left side of the platform, say three feet before the blade, for the purpose and so constructed as to effect a separation of the wheat to be cut from that to be left standing, and that whether tangled or not. E is a piece of scantling, say three feet long and three inches square, made fast to a projection of the platform by two screw bolts. To the point of this piece, at K. is made fast by a screw or bolt a bow, L, of tough wood, the other end of which is made fast in the hinder part of the platform at R, and it is so bent as to be about two and a half feet high at the (left) reel-post, and about nine inches out from it, with a regular curve. The dividing-iron, M, is an iron rod, of a peculiar shape, made fast to the point of the same piece, E, and by the same screw bolt that holds the bow, L. From this bolt this iron rises towards the reel, S, at an angle of say 30°, until it reaches it; then it is bent so as to pass under the reel as far back as the blade, and to fit the curve of it (the reel). From the bolt in the point aforesaid, the other end of this iron extends, say nine inches, along the inside of the piece E, where it is held by another screw bolt, M, and where it has a groove or slot in it to admit the other ends being raised or lowered (turning on the point screw, K, as a pivot) to suit the height of the reel. By means of the bow to bear off the standing wheat, and the iron to throw the wheat to be cut within the powers of the reel, the required separation is made complete."

The answer denies that the arrangement of the divider used by defendants for separating the grain to be cut from that to be left standing is the same in construction or mode of operation as that claimed by complainant, or a colorable evasion of said claim, and avers that it is a different and distinct arrangement, invented by J. H. Manny, after several years' experiments.

It would be a difficult task to make intelligible to the uninitiated the construction of a very complex machine, without the aid of models or diagrams. But, for the purposes of the case, the divider, although a component part of the great complex machine called the reaper, may be considered by itself as a machine or combination of devices attached to the reaper to perform certain functions necessary to complete the whole operation. In order to ascertain whether the divider

Opinion of the court.

used by defendants infringes that of the complainant, we must first inquire whether McCormick was the first to invent the machine called a divider, performing the functions required, or has merely improved a known machine by some peculiar combination of mechanical devices which perform the same functions in a better manner.

If he be the original inventor of the device or machine called the divider, he will have a right to treat as infringers all who make dividers operating on the same principle, and performing the same functions by analogous means or equivalent combinations, even though the infringing machine may be an improvement of the original, and patentable as such. But if the invention claimed be itself but an improvement on a known machine by a mere change of form or combination of parts, the patentee cannot treat another as an infringer who has improved the original machine by use of a different form or combination performing the same functions. The inventor of the first improvement cannot invoke the doctrine of equivalents to suppress all other improvements which are not mere colorable invasions of the first,

That portion of a reaping-machine called the divider or separator may be described as a pointed, wedge-formed instrument, which is attached by its butt at that extremity of the cutting apparatus which runs in the grain, in such manner that its point projects in advance of the cutting apparatus, and enters the standing grain. Its functions, where the grain stands erect, are to divide it into two portions, one of which is borne inwards by the inner side of the wedge-formed implement within the range of the cutting apparatus and of the reel, in case the machine is fitted with a reel; the other portion of the grain is borne outwards by the outer side of the divider, so as to be passed by that portion of the machine which lies behind the cutting apparatus. When grain is inclined outwards, the function of the divider is not only merely to divide the grain into portions, but also to raise up the inclined stalks of the grain, below which the divider passes. When the grain inclines inwards, the function of the divider is not only to divide the mass, but also to raise up the inclined stalks of grain beneath which the divider passes, and to bear them outwards without the range of the reel, if the machine has a reel, and of the cutting apparatus. When grain, in addition to being inclined, is also entangled, the divider not only separates and raises the stalks, but also tends to disentangle them. The lower face of a divider also performs the function of a shoe or runner, to prevent the cutting apparatus from digging into the earth when, by any accidental movement of the machine, it would otherwise do so. The divider also performs the fune

Opinion of the court.

tion of limiting or regulating the width of the swath, by raising up and turning inwards those stalks of grain which, from their inclination outwards, would otherwise escape the action of the cutter; and by raising up and turning outwards those stalks of grain which, from their inclination inwards, would otherwise be within the range of the cutter. All dividers perform these functions in a greater or less degree. The English patent of Dobbs, in 1814, had dividers of wood or metal. The outer diverging rod rose as it extended back, and diverged laterally from the point, to raise the stalks of grain inclining inwards, and to turn them off from the other parts of the machine. The patent of Charles Phillips, of 1841, had a divider, shaped like a wedge, performing the same function, turning the grain aside on both sides of the machine, and raising it up. Ambler's machine had a triangular divider performing the same functions, as also the machines of Hussey, Schnebly, and that of McCormick, patented in 1834, which is now public property. The present claim is for the combination of this bow with a dividing-iron of a certain form, and for nothing more. This dividing-iron is but a new form or substitutefor that side of the triangle or wedge which in other machines performed the function of separating the inside grain and raising it to the cutters.

It is described in the patent as having these peculiarities to distinguish it from those that preceded it:

1. It rises at an angle of about thirty degrees till it reaches the reel.

2. It is curved under the reel.

3. It is made adjustable by means of a slot, so as to suit the different heights of the reel.

Its function is to raise and support the grain along the inner edge of the divider, at the maximum elevation consistent with the employment of the reel. As a form or combination of devices it is new, and no doubt an improvement, and therefore the proper subject of a patent. But as a claim for a combination of mechanical devices or parts, it is not infringed by one who uses a part of the combination. Nor can it challenge other improvements of the same machine, different in form or combination, as infringements, because they perform the same functions as well or better, by calling them equivalents. The machine constructed under defendants' patent has a wooden projection, somewhat in the form of a wedge, extended beyond the cutting-sickles some three feet, and which, from the point in front, rises as it approaches the cutting apparatus, with a small curve, (not approaching to an angle of thirty degrees,) so as to raise the leaning

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