INFRINGEMENT-Continued. 7. IDENTITY-Mere change of proportion is not sufficient to avoid a charge of infringement, and is not, therefore, sufficient to establish difference of invention. *Thomson-Houston Electric Company v. Western Electric Company et al., 315. 8. SAME-MODE OF OPERATION-The omission of a part whose presence or absence does not affect essentially the mode of operation nor determine whether a particular apparatus exemplifies one patent or the other is of no significance. *Id. 9. PRIMA FACIE PROOF OF-PATENTED IMPROVEMENT-A contention that defendant's device being patented is prima facie proof that it does not infringe complainant's patent, and that therefore it is not competent for the court, upon inspection of the patents alone, to adjudge infringement, might be sustained in some cases; but it cannot be in this one, where the patent set up by defendants is manifestly for an alleged improvement upon complainant's invention, the use of which it necessarily involves. *Hardwick v. Masland et al., 323. 10. NOT INFRINGED-The patentee placed between the dies used in making his articles short sections of a smooth straight-sided tube. One effect of the dies is to change the thickness of metal of these sections by swaging or upsetting. This is not infringed by a process for making similar articles in which sections of a corrugated tube are used, in operating upon which the effect of the dies is to fold or unfold the corrugations without upsetting the metal or changing its thickness. * Jackson et al. v. Birmingham Brass Company et al., 352. 11. SIMILARITY-ESSENTIAL CHARACTERISTICS-The fact that defendant employs a paper impregnated with a wax having a melting point different from that of the wax used by complainant is not sufficient to avoid infringement when the essential characteristic of the wax employed in each case is its hardness, and the degree of hardness is the same in both. *A. B. Dick Company V. Henry, 377. 12. COMBINATION—OMITTING SUBORDINATE FEATURE-MERITORIOUS INVENTION— LIBERAL CONSTRUCTION OF-Where the true value of the invention lies in one element of a combination, and an infringer has appropriated that, he should not be permitted to escape upon the plea that he has omitted a subordinate and comparatively non-essential feature, unless it is clear that he has omitted it. To find an invention meritorious and then defeat it by an illiberal construction is as inconsistent as it is unfair. To decide that an inventor has conferred a benefit upon mankind and subsequently destroy his patent by a harsh construction is condemned both by the general principles of equity and by express authority. The court should be diligent to give him the rewards of his genius and labor and resolve doubtful points in favor of the patent. *Gould Coupler Company v. Pratt et al., 392. 13. ACQUIESCENCE-WAIVER OF RIGHT-A trespasser cannot acquire a legal right to the continuance in his wrongful acts without affirmative proof of some such act or omission to act on the part of him whose property rights are invaded as would make it inequitable to assert such rights. The inequity of permitting the enforcement of such claim is founded on knowledge of an opportunity to enforce rights, on the one hand, and on changes in the conditions or relations of the adverse party on the other. Imperial Chemical Manufacturing Company v. Stein et al., 402. 14. COMBINATION-ELEMENT OMITTED-It is a rule of universal application in construing "combination" claims that the omission in an alleged infringing device of one element of the combination embodied in any claim will repel the charge of infringement based on that claim. *Engle Sanitary and Cremation Company v. City of Elwood, 405. INFRINGEMENT-Continued. 15. AUTOMATIC MEANS-A claim which includes "means for automatically opening and retaining” is not infringed by a device which has means for performing but one of these functions. Browning's device does away with the presence of a trainman in coupling cars, since it is automatic in its character, and a claim for it is not infringed by a device which is without any automatic means for necessarily placing the device in position for coupling. Gould Coupler Company v. Trojan Car Coupler Company, 414. 16. DETAILS-A claim for a torpedo, a detachable clip, and means for attaching the clip to the torpedo, is infringed by a device which has the same elements, although differing in details. * Bennett et al. v. Schooley, 455. 17. REVERSAL OF PARTS-A mere transposition or reversal of parts is not a material departure from a patented invention and will not avoid a charge of infringement. * Société Anonyme Usine J. Cléret v. Rehfuss et al., 459. 18. NON-INFRINGEMENT-ABSENCE OF ELEMENT-A claim which includes as a persistent, express, and pronounced feature an air chamber is not infringed by a device some particular part of which may be a "compartment" or "inclosure," but which never contained a volume of air. * Scarborough et al. v. Neff et al., 463. 19. SAME-SAME—“SUBSTANTIALLY AS DESCRIBED”—A construction which might perform the functions of a complainant's device to some extent, but which lacks a communication between two parts substantially as described in complainant's specification, does not infringe a claim in which such communication is claimed "substantially as described." * Id. 20. BURDEN OF PROOF-CONTRIBUTORY INFRINGEMENT—In a suit for preliminary injunction the burden of proof is on complainant to show an intention on the part of defendants to infringe. Making and putting upon the market an article which of necessity and to their knowledge is to be used to infringe complainant's patent is contributory infringement on the part of the defendants. *Thomson-Houston Electric Company v. Kelsey Electric Railway Specialty Company, 474. 21. CONTRIBUTORY INFRINGEMEnt-Lawful USE-The fact that the infringing part is capable of a lawful as well as an unlawful use, by way of reparation or restoration of a patented device, does not raise the presumption that the lawful use is the one for which it is alone intended. *Id. 22. SAME-Claims 6, 7, 8, 12, and 16 of Letters Patent No. 495,443, granted April 11, 1893, to the administrators of Charles J. Van Depoele, for a traveling contact for electric railways, which cover the combination consisting generally of an electric railway having an overhead conductor and a car for said railway provided with a "trolley-stand" carrying a trailing arm which is pressed into engagement with the underside of the conductor, are not contributory infringed by defendant, who makes and sells only the "trolley-stand" of the combination. Thomson-Houston Electric Company v. Kelsey Electric Railway Specialty Company et al., 508. 23. DIFFERENCES IN FORM-Mere differences in form are not sufficient to avoid infringement. *Taylor et al. v. Sawyer Spindle Company, 546. 24. PLEADING-NOTICE-WAIVER-After alleging the invention and grant of the patent and the assignment the pleader averred that the defendants, knowing the premises, infringed. This is not an averment that they had notice or knew that their machines infringed. The allegation in regard to infringement was traversed, but nothing was said below upon the subject of notice. It is too late to raise for the first time, in an appellate court, technical questions of pleading or proof which are not jurisdictional in their character. * Tuttle, trustee, etc., v. Claflin et al., 602. 25. CONSTRUCTION OF INVENTION-Devices which effect a distinctly simultaneous separation of pairs of carbons of a lamp do not infringe a patent in which INFRINGEMENT-Continued. there is claimed a device for securing a dissimultaneous separation of such pairs of carbons. *Brush Electric Company v. Western Electric Company, 628. 26. SAME-The contention that, since it is physically impossible for two sets of carbons to be separated at one and the same electrical instant, the defendant's devices must infringe is manifestly fallacious. *Id. 27. SUBSTITUTION OF EQUIVALENTS-PRIOR LITIGATION-WORDING OF CLAIMS— The substitution of a horizontally moving roller presser and cutter for a vertically moving direct plunger and cutter will not suffice to avoid infringement in the case of a defendant who was also an unsuccessful defendant in a long course of prior litigations, even though the structure complained of evades the wording of the claims in suit. *Beach v. Inman et al., 635. 28. PREVIOUS ADJUDICATION-A court of equity will not be overzealous in behalf of a defendant who persists in producing an old article which concededly contains all the elements save one of a combination uniformly forbidden him in previous suits. *Id. 29. TESTIMONY-Testimony on behalf of complainant that there was no arrangement between complainant and defendant whereby the latter should procure articles from the former to be used at a particular place is very far from a denial that the particular articles in dispute could be purchased in the open market and does not amount to a charge of infringement. *Edison Electric Light Company v. Kaelber, 643. 30. AGENT Defendant-QuiA TIMET ACTION-The expression "was awarded to the Western Electric Company through its agent, Mr. Kaelber" is not sufficient to establish the character of Mr. Kaelber's agency or to justify an apprehension of infringement from him. A quia timet action will not lie unless there is something to fear. *Id. 31. LIABILITY-A series of guesses will not suffice to inculpate a defendant. Neither will the fact that he received a bid for alleged infringing devices in behalf of another party, in the absence of any threat on his part and in the absence of any showing of profit resulting to him, render him liable. *Id. 32. INFRINGEMENT OF PRIOR PATENnt-Grant oF SUBSEQUENT PATENT-PRESUMPTION Created Thereby-The grant of Letters Patent by the United States Patent Office creates a presumption of non-infringement of a prior patent claiming a similar device. (Ney Manufacturing Co. v. Superior Drill Co., C. D., 1893, 475; 64 O. G., 1133; 56 Fed. Rep., 152, cited and approved.) *F. E. Kohler & Company v. George Worthington Company et al., 654. 33. CONSTRUCTION OF PATENT-A claim for "applying coating material evenly" and for "causing the paper to emerge from the level surface" is not infringed by a process in which the coating emulsion is kept stirred by an agitator. *Eastman Company v. Gelz & Hoover, 655. 34. RIGHT TO REPAIR-Where a patent covers the combination of a drawhead, a knuckle, a pivot-pin, and a locking-pin, it is not infringed by a defendant who furnishes the knuckles to replace broken ones. Shickle, Harrison & Howard Iron Company v. St. Louis Car Coupler Company, 667. INFRINGEMENT BY A GOVERNMENT OFFICIAL. See Suits for Infringement Against the United States, 2, 3, 4, 5. INJUNCTION. See Appeal to the Circuit Court of Appeals, 3; Infringement, 20; Marking Articles "Patented;" Particular Patents, 68, 83; Parties to Suit, 2; Prior Decisions; Trade- Marks, 17, 18, 19. 1. MORSE-HOLT-DUST-Collector - INFRINGEMENT - PRELIMINARY INJUNCTION-Infringement of claims 1, 2, and 3 of Letters Patent No. 403,362, claims 1 and 2 of No. 403,363, and claim 4 of No 403,770, to Orville M. Morse, and claim 4 of Letters Patent No. 409,465, to Noah W. Holt, for improvements in dust-collectors, being proved, the preliminary injunction asked for is INJUNCTION-Continued. granted. *Allington v. Curtis Manufacturing Company et al. v. Lynch et al., 224. 2. VALIDITY OF PATENT ATTACKED-Where the validity of a patent is attacked and there is not a clear preponderance in its favor, injunction pendente lite should not issue. *Fenton Metallic Manufacturing Company v. Chase et al., 471. 3. DECISION OF SUPREME Court of THE DISTRICT OF COLUMBIA-A decision of the Supreme Court of the District of Columbia in which no opinion was expressed may have been intended to express the conclusion that for some reason particular defendants should be enjoined, while at the same time it may have been intended to avoid giving the patentee a supporting adjudication. *Id. 4. PRELIMINARY INJUNCTION-SUBSTANTIAL IDENTITY OF STRUCTURE-PRIOR ADJUDICATION—A motion for a preliminary injunction will be granted when it appears that the defendant's structure is the same as the complainant's in all respects save one, and that one, though differing in a narrow technical sense, is the same in principle, and when it further appears that the complainant's patent has been uniformly upheld during years of arduous litigation with the present defendant. * Beach v. Inman et al., 635. INJUNCTION RESTRAINING USE BY THE GOVERNMENT. See Suits for Infringement Against the United States. INOPERATIVE DEVICES. See Construction of Specifications and Patents, 9. ANTICIPATION-Failure to PaTENT-Inoperative devices are frequently set up as anticipations; but they are usually such as have proven to be so far failures that the inventor has not taken out patents for them, and are resuscitated for the purpose of showing that other machines similar to the one patented have been invented before. * Dashiell v. Grosvenor et al., 176. INTERFERENCE. See Appeal to the Secretary of the Interior; Assignments, 4; Death of Applicant for Patent, 2; Designs, 7; New Matter; Partnership; Priority of Invention, 1; Reduction to Practice, 1, 6; Rehearing; Technical Terms; Testimony, 4. 1. PRIORITY-The decision of the Commissioner of Patents awarding priority of invention to Bernardin reversed (Northall v. Painter v. Bernardin, C. D., 1895, 10; 71 O. G.,1159.) Northall v. Bernardin, 183. 2. ABANDONED APPLICATION-CONCEPTION-PRIORITY-Carty filed an application April 20, 1885, which became abandoned October 21, 1887. He filed another original application November 17, 1887 Kellogg filed an original application July 30, 1887. Held that Carty's abandoned application is only evidence of conception; that, his excuse for want of diligence in prosecuting his claim being weak, Kellogg, who first constructively reduced to practice by filing an application, is entitled to award of priority. *Carty v. Kellogg, 188. 3. OBJECT OF-RES ADJUDICATA-OTHER QUESTIONS THAN PRIORITY—The object of an interference proceeding in the Patent Office is to determine priority, not patentability; and while the decision in such proceedings may be res adjudicata as to this question, it does not preclude a defendant in an equity proceeding from raising other questions not in issue in said proceedings. * National Machine Company v. Wheeler & Wilson Manufacturing Company, 259. 4. REDUCTION TO PRACTICE-DILIGENCE-Huson, being the first to conceive the invention, and was using reasonable diligence in adapting and perfecting the same at the time of Yates's conception, must prevail as against Yates, although Huson failed to reduce to practice until after Yates had filed his application for patent. "Yates v. Huson, 278. 5. DILIGENCE-CONSTRUCTION OF STATUTE-The words of the law, "was using reasonable diligence," refer to the very time of the second conception. The INTERFERENCE-Continued. prior conceiver to show that his diligence only began with the time of the 6. SAME-CIRCUMSTANCES GOVERNING-While it is required that the first con- 7. SAME-REDUCTION BEFORE APPLICATION-SECTION 4920, REVISED STATUTES- 9. PATENTEE AND APPLICANT-PRIORITY-Chase having failed to prove conception 11. WIRE FENCE-PRIORITY—Shellaberger having proved reduction to practice in the spring of 1888 is awarded priority of invention over Sommer, whose earliest conception is September, 1888, and reduction to practice 1890. *Shellaberger v. Sommer et al., 292. 12. Failure to Produce SKETCHES, ETC.—While the failure to produce the original sketches, specimens of the device made, or the machine upon which it was made is always the subject of adverse criticism, yet it may be so explained that priority may be awarded to the party who does not produce such evidence to show reduction to practice. *Id. 13. ACCESS TO FILES AND PAPERS-After the preliminary statements have been received and approved each party may have free access to the files and papers of the other; but if an application contains a description and claims of one or more inventions not related to the one in issue in such a manner as to affect its scope or meaning the opposing party should not be allowed to inspect this part of the application. Zwietusch v. Wittemann, 8. 14. PRIORITY—Foreign PateNT—Appert, having patented the invention in France before Parker's first proved conception, is held to be the prior inventor. *Parker v. Appert, 371. 15. AMENDING Preliminary STATEMENT—It is always a suspicious circumstance in a case of interference that after the claim of one of the parties has been fully disclosed and fixed as a specified date the other party should then seek, by amendment of his preliminary statement, to show a date of invention prior to that of his original statement and prior to that of his opponent. *Id. 16. SAME-SKEtches-Dates OF-Appellant's statement that he made the sketches upon which he relies for proof of his earlier date at said date, but mislaid |