This was a suggestion of the very thing which Greth did, and it was in connection with the otherwise complete combination use by Greth; but we think it only a suggestion. Neither drawing nor description told how to do it. Such matter as this must be either a full disclosure equivalent to a full anticipation, or else it is properly classifiable as a suggestion. Greth adapted and combined together the treatment and settlement tanks of De la Coux, the separableunit idea of the city water systems, and the cleaning by reverse flow idea found in other filters. To do this, he devised suitable forms and arrangement for the entire unitary structure, and for the filtering apparatus, gates, and inlet and outlet pipes necessary. All had to be adapted to the combination. The fact that De la Coux suggested it might be done is not enough. It was no more efficient than the suggestion which, in Herman v. Youngstown Co., (191 Fed. Rep., 579; 112 C. C. A., 185,) we thought not enough to negative invention. The defendant is using the structure of claim 11, as we interpret that claim. Its structure embodies, just as Greth's device does, a gate shutting the filter off from the settling-compartment, a discharge-pipe carrying away to the sewer the overflow from the top of the filter when it is washed, and the ordinary outlet-pipe from the bottom of the filter, usually carrying away clear water, but which, by suitable connection, could be made to receive the washing-water and force it up from the bottom of the filter-bed. That the only time when its operation was observed by witnesses, defendant was cleaning one filter at a time, cut out from the settling-tank, by washing the same with a hose instead of by water reversed through the discharge-pipe, and considering that the defendant had the complete device capable of use, just as contemplated, by turning a valve or adding the water connection, is not vital. We think it did not escape infringement if it did in fact use the device only in a less perfect and more awkward way. The claim does not specify nor necessarily imply the precise method of cleaning. The decree must be reversed and the record remanded, with instructions to enter the usual decree for injunction and accounting on claim 11, provided that, within thirty days after the filing of the mandate, complainant has made disclaimer under claim 10 according to the practice established in this circuit." The appellant will recover costs of this court, but not, up to this point, in the court below.12 11 Herman v. Youngstown, (C. C. A., 6; 191 Fed. Rep., 579; 112 C. C. A., 185.) [U. S. Circuit Court of Appeals-Seventh Circuit.] KRELL AUTO GRAND PIANO Co. OF AMERICA v. STORY & CLARK CO. et al. Decided April 15, 1913. 206 O. G., 313; 207 Fed. Rep., 946. 1. PATENTS-VALIDITY-DETERMINATION ON DEMURRER. A patent cannot be held invalid on demurrer to a bill for its infringement unless inevitably void either on its face or by reason of matters of such universal or common knowledge that the court may take judicial notice of them. A patent for a mechanism consisting of two or more elements is not necessarily invalid as an aggregation because there is no direct coaction between the elements where such coaction comes to produce a unitary result through the mediation of the operator or the operating force. 3. SAME-SAME-AUTOMATIC PIANO-PLAYER. The Welin patent, No. 825,784, for an automatic playing attachment for musical instruments, is not void on its face either for lack of patentable novelty or as an aggregation of old elements. 4. SAME " Aggregation" DEFINED. 66 In one sense (which, in the interest of accurate terminology, might well be taken as the exclusive sense) aggregation" in the law of patents means that the claims in and of themselves, independently of the prior art, show that the elements are incapable of coacting to produce a unitary result. APPEAL from the District Court of the United States for the District of Indiana; Albert B. Anderson, Judge. STATEMENT OF THE CASE. Appellant filed its bill, in the usual form, to hold appellees as infringers of the Welin patent, No. 825,784, issued July 10, 1906, on application filed July 20, 1904, for an "automatic playing attachment for musical instruments." Appellees demurred on the grounds (1) that no patentable novelty is disclosed in the specification and claims, and (2) that the claims are for aggregations of old elements which have not been brought into patentable combinations. Upon the demurrer's being sustained, the bill was dismissed for want of equity; and this appeal resulted. Drawings, description, and claims of the patent are as follows: This invention relates to that class of automatic playing attachments which are housed within the casing of the pianos to which they are applied. The especial object of this invention is to combine the levers which control the automatic playing with the piano casing in a strong, compact, and convenient arrangement which will permit said parts to be entirely inclosed when the piano is to be played manually and while at the same time said parts will occupy comparatively little room within the casing itself. To these ends this invention consists of the piano casing and of the combinations of parts therein, as hereinafter described, and more particularly pointed out in the claims at the end of this specification. In the accompanying two sheets of drawings, Figure 1 is a sectional view of sufficient parts of a piano casing to illustrate the application of my invention thereto; and Fig. 2 is a perspective view of the controlling levers, showing the fall-board swung down into position to permit access to the levers. In equipping a piano case with controlling levers for the automatic playing I arrange them above the ledge of the keyboard, and the ends of the controlling levers extend out into a recess which is normally closed by a small fall-board or swinging cover and which fall-board when opened forms a ledge for guiding the hands of the user in the lateral movement of the levers. The piano casing, as usual, has a keyboard ledge or board L. The controlling levers are preferably arranged underneath the piano keys and are ordinarily concealed from view so that there will be no indication on the exterior of the piano that the piano is provided with automatic playing attachments. As shown in Fig. 1, the keys K are located above the ledge or board L. Below the keys are the controlling levers C, which extend forward so that their front ends are located in a hollow key slip or recess of the keyboard ledge. As shown most clearly in Fig. 1, this recess has an inner stationary member S and can be opened and closed by an outer member in the form of a pivoted or rockable cover or fall-board F. When the lower fall-board F is closed, as shown in Fig. 1, it constitutes, in effect, part of a continuous rail coöperating with the fall-board or key cover E, while when the small fall-board F is swung down or opened, as shown in Fig. 2, about its pivot, which is preferably lower than the ends of the levers, it forms, in effect, a supporting ledge for guiding the lateral movement of the hand of the operator when shifting the controlling levers. I am aware that changes may be made in applying my invention to piano cases of different styles and proportions. I do not wish, therefore, to be limited to the construction I have herein shown and described; but What I do claim, and desire to secure by Letters Patent of the United States, is: 1. The combination of a piano casing, controlling levers for automatic playing attachments with the ends of said levers below and in front of the piano keys, and a fall-board or swinging cover for concealing said levers mounted to swing on a pivot located lower than the ends of said levers. 2. The combination of a piano casing, controlling levers for automatic playing attachments, and a pivoted fall-board or rockable member which, when in normal position, conceals the controlling levers and forms part of the ledge or rail which coöperates with the key-cover and which when open, forms a ledge or support for the hand of the operator. 3. The combination of a piano casing, controlling levers for automatic playing attachments, located below the piano keys and having their ends extending forward into a recess or opening in the key rail or ledge of the casing, and a pivoted fall-board, which, when in normal position, conceals the controlling levers, and forms part of the ledge or rail which coöperates with the key cover and which, when open, forms a ledge or support for the hand of the operator. 4. In an automatic combination-piano, a recessed or hollow key-slip composed of an inner member and an outer movable member; in combination with the key-bed, manual keyboard, and expression manipulatory devices, having their terminals beneath said key-slip. 5. In an automatic combination-piano, a recessed or hollow key-slip comprising an outer rockable member in combination with the manual keyboard and expression-manipulatory devices having their terminals beneath said keyslip, said rockable member being adapted to swing outwardly under said manipulatory devices. Outside the record, which consists of bill, patent, demurrer, ruling, and decree, appellees call our attention to patents, articles on pianobuilding and cabinet-making in encyclopedias, photographs of old paintings, histories of musical art, and catalogues of museums and world expositions. Mr. Russell Wiles, Mr. P. C. Dyrenforth, Mr. Joseph A. Minturn, and Mr. Frank W. Woerner for the appellant. Mr. Frank F. Reed and Mr. Edward S. Rogers for the appellees. Before BAKER and KOHLSAAT, Circuit Judges, and WRIGHT, District Judge. BAKER, Cir. J., (after stating the facts as above): (1) I. Is the exhibited patent inevitably void by reason of facts within judicial notice? In Lange v. McGuin (177 Fed. Rep., 219; 101 C. C. A., 389) this court said: The office of a general demurrer to a bill is to test the legal sufficiency of the averments to state a good cause of action in equity. Of course, a demurrer may be addressed to a bill for infringement of a patent as well as to any other bill. And, though the bill be in due form and complete in all its parts, yet, if the exhibited patent be inevitably void either on its face or by reason of matters of universal knowledge, the demurrer should be sustained. Bills in patent causes and demurrers thereto are not so unique that they are exempt from the general principles and rules of equity pleading. And therein it is not the province of a demurrer to speak of matters beyond the bill. Of course, every bill is written against the background of common knowledge; and in that view a demurrer may be said to invite the chancellor to take judicial notice of the background. But if a bill, in and by its own averments, states a prima facie case, that case cannot properly be overthrown by the chancellor merely on the ground that he judicially knows of facts that would support an answer. His judicial knowledge must go farther, and be so broad and all-embracing that he can properly hold that no facts exist that would tend to controvert the supposed answer and support a replication and the bill. This is so because, if such facts exist, the complainant is entitled to a hearing where he can present and argue the facts, and such a hearing cannot be had on demurrer to the bill.' As a general formula it is said that courts will treat as evidence "facts of universal notoriety," "facts that may be regarded as forming a part of the common knowledge of every person of ordinary understanding and intelligence;" and that for the purpose of "refreshing the memory" reference may be made to "standard publications." Public libraries and museums are open to all. But is every book a standard publication? Is everything in a standard publication true? If true statements were somehow marked for immediate identification, would all of them be known to the person of ordinary understanding and intelligence? Is there nothing in accessible records and memorials that is rare, curious, not commonly known? But we find it unnecessary to inquire how far, if at all, appellees have been flattering the common knowledge, for, if every item be accepted as evidentiary, we are nevertheless unable to draw therefrom the finding of ultimate fact which, under the rule stated in Lange v. McGuin, would be necessary to defeat the patent. Two classes of matters are brought forward, general publications and patents. All that we learn from the words and pictures of the publications is that in ancient desks, cabinets, and casings of musical instruments 1 Brown v. Piper, (C. D., 1876, 464; 10 O. G., 417; 91 U. S., 37; 23 L. Ed., 200;) Slawson v. Grand St. R. Co., (C. D., 1883, 313; 22 O. G., 99; 107 U. S., 652; 2 Sup. Ct., 663; 27 L. Ed., 576;) Richards v. Chase Elevator Co., (C. D., 1895, 392; 71 O. G., 1456; 158 U. S., 299; 15 Sup. Ct., 831; 39 L. Ed., 991;) Risdon Locomotive Works v. Medart, (C. D., 1895, 330; 71 O. G., 751; 158 U. S., 68; 15 Sup. Ct., 745; 39 L. Ed., 899;) Kaolatype Engraving Co v. Hoke, (C. C., 30 Fed. Rep., 444;) N. Y. Belting & P. Co. v. N. J. Car-Spring & Rubber Co., (C. D., 1893, 172; 62 O. G., 589; C. C., 30 Fed. Rep., 785;) West v. Rae, (C. C., 33 Fed. Rep., 45;) Eclipse Mfg. Co. v. Adkins, (C. C., 36 Fed. Rep., 554 ;) Buckingham v. Iron Co., (C. C., 51 Fed. Rep., 236;) Wall v. Leck, (C. D., 1894, 457; 68 O. G., 1273; C. C., 61 Fed. Rep., 291;) American Fiber-Chamois Co. v. Buckskin Fiber Co., (C. D., 1896, 357; 75 O. G., 833; 72 Fed. Rep., 508; 18 C. C. A., 662;) Caldwell v. Powell, (C. D., 1896, 625; 77 O. G., 1272; 73 Fed. Rep., 488; 19 C. C. A., 592;) Strom Mfg. Co. v. Weir Frog Co., (C. D., 1896, 618; 77 O. G., 1125; C. C., 75 Fed. Rep., 279, and Id., 83 Fed. Rep., 170; 27 C. C. A., 502;) Conley v. Marum, (C. C., 83 Fed. Rep., 309, and Id., 84 Fed. Rep., 990; 29 C. C. A., 680;) Lappin Brake Shoe Co. v. Corning Brake-Shoe Co., (C. C., 94 Fed. Rep., 162, and Id., 99 Fed. Rep., 1004; 40 C. C. A., 215;) Higgin Mfg. Co. v. Scherer, (100 Fed. Rep., 459; 40 C. C. A., 491;) Beer v. Walbridge, (100 Fed. Rep., 465; 40 C. C. A., 496;) Richards v. Michigan Cent. R. Co., (102 Fed. Rep., 508; 42 C. C. A., 484;) Fowler v. City of New York, (C. C., 110 Fed. Rep., 749;) Milner Seating Co. v. Yesbera, (111 Fed. Rep., 386; 49 C. C. A., 397;) Mahler v. Animarium Co., (111 Fed. Rep., 530; 49 C. C. A., 431;) Chinnock v. Patterson Tel. Co., (112 Fed. Rep., 531; 50 C. C. A., 384;) Hocke v. New York Central R. Co., (C. C., 117 Fed. Rep., 320;) Drake Castle Pressed Steel Co. v. Brownell, (123 Fed. Rep., 86; 59 C. C. A., 216;) American Sales Book Co. v. Carter-Crume Co., (C. C., 125 Fed. Rep., 499;) Brunswick-Balke-Collender Co. v. Klumpp, (C. C., 126 Fed. Rep., 765;) General Electric Co. v. Campbell, (C. C., 137 Fed. Rep., 600;) American Type Founders Co. v. Damon & Peets, (C. C., 140 Fed. Rep., 715;) Kuhn v. Lock Stub Check Co., (C. C., 157 Fed. Rep., 235, and Id., 165 Fed. Rep., 445; 91 C. C. A., 389;) Southern Plow Co. v. Atlanta Agricultural Works, (C. C., 165 Fed. Rep., 214;) Victor Co. v. Hawthorne, (C. C., 168 Fed. Rep., 554, and Id., C. D., 1910, 435; 157 O. G., 1002; 178 Fed. Rep., 455; 101 C. C. A., 439;) Neidich v. Edwards, (C. C., 169 Fed. Rep., 424;) Westrumite Co. v. Commissioners, (174 Fed. Rep., 144; 98 C. C. A., 178;) Charles Boldt Co. v. Nivison, (194 Fed. Rep., 871; 114 C. C. A., 617;) International Mausoleum Co. v. Sievert, (D. C., 197 Fed. Rep., 936.) |