the court below that it is such a circuit within the patent meaning in which that term was used and defined in Tesla's specification which has been stated more at length in an earlier part of this opinion.

Moreover, whatever the true name of this circuit, it is in electrical and legal effect the same circuit produced in the same way, operated on the same principle by substantially the same means and producing the same result as Tesla's induced circuit. It is substantially the same thing electrically and mechanically. And it is no defense to a charge of infringement of a process, a machine, or a combination clearly described and claimed in a patent that it, or some part of it, was misnamed therein, or that the infringer has called it by a name different from that applied to it by the patentee. Patents protect new and useful processes, machines, and combinations, whatever their names, when they are clearly described and claimed in the specification. And the conclusion is that the defendant infringes the claims in suit because its motor operates upon the same principles, by the use of the same process and of mechanically equivalent means and produces the same result clearly described in the specifications and secured by the claims.

The decree below must accordingly be affirmed, and it is so ordered.

[U. S. Circuit Court of Appeals--Seventh Circuit.]

HORTON MFG. Co. v. WHITE LILY MFG. CO.

Decided November 19, 1913.

208 O. G., 655; 213 Fed. Rep., 471.

1. PATENTS-SCOPE-FEATURES NOT CLAIMED.

If the mechanism described in a patent in itself discloses the principal advantageous feature of the invention, it is not necessary that it should be claimed in specific terms.

2. SAME-ANTICIPATION-PENDING APPLICATIONS BY PATENTEE.

For the purposes of anticipation by another patent the date of issue controls, and a claim of the principal feature of the invention covered by a patent by the patentee in prior applications, which were still pending when such patent issued, does not constitute an anticipation.

3. SAME-VALIDITY AND INFRINGEMENT-GEARING FOR WASHING-MACHINE.

The Victor patent, No. 863,120, for gearing for washing-machines, the principal feature of which is the relieving of the tub cover of the load of the operating mechanism, and thus reducing its weight when raised to a negligible quantity, was not anticipated, and discloses patentable invention; also Held infringed by the device of the Van Wormer patent, No. 939,645. 4. SAME CONSTRUCTION-SCOPE.

The scope of a patent must be ascertained from the entire instrument, and although a claim cannot be enlarged by the language of the specification it may be illustrated thereby.

5. SAME-SUIT FOR INFRINGEMENT-MOTION TO STRIKE OUT EVIDENCE.

A motion in an infringement suit to strike out evidence not pertinent to the issues contested on final hearing, at complainant's costs, is addressed to the discretion of the trial court, and cannot be entertained by an appellate court.

APPEAL from the District Court of the United States for the District of Indiana; Albert B. Anderson, Judge.

STATEMENT OF THE CASE.

Appellee brought suit for infringement of its patent, No. 863,120, granted to A. F. Victor on August 13, 1907, on application filed May 29, 1907, for improvements in gearing for washing-machines. Validity and infringement were decreed by the district court.

The device of the patent employs the ordinary well-known means for obtaining oscillatory or rotary and reciprocal movement of the dolly or stirrer shaft. The patentee says:

The object of my invention is to utilize the momentum of a fly-wheel to assist in the operation of the lever by which said stirrer shaft mechanism is actuated. The patent in suit locates the lever, gear-wheel, and fly-wheel upon a supporting-plate at the side of the tub. On April 6, 1907, the same patentee had filed two applications, and on March 6, 1907, another application, all covering the same idea, wherein the fly and gear wheels were located under the tub. Patents were issued upon these on May 5, August 11, and 25, respectively, 1908. In all of them only the driving and stirrer shafts are carried upon the lid. The several devices thus provide means whereby the lid may be lifted without much effort and without interrupting the impetus of the flywheel. At the convenience of the operator the lid may be again lowered into meshing connection with the rack upon the lever, and thereby resume the connection with the fly-wheel's stored up momentum. All the elements of the device are old, even the location on the side of the tub, as in Shaffer patent, No. 657,838, of September 11, 1900, so that whatever of invention exists must be found in the combination and relative location of the parts to each other.

It was old to employ fly-wheels and speeding-up gears in connection with the operation of washtubs. Ruthven in 1900 and 1904, and Christensen in February, 1907, and others, had applied this wellknown means of supplying power to the washtub art. While the patentee claims invention in other details of his arrangement of the parts, he rests his claim to invention mainly upon the fact that the lid of the tub is relieved of the heavy load imposed upon it by the prior-art devices, and upon the provision for a so-called line of cleavage, brought about by the fact that the meshing of the spur on the outer end of the drive-shaft with the segmental rack upon the lever-handle is such that by the mere raising of the lid the two are

thrown out of mesh and again brought into mesh by the lowering of the lid. Thus all that the operator has to lift is the lid of the tub, the stirrer-shaft, and the horizontal driving-shaft. By this means the movement and momentum of the rest of the gearing, including that of the fly-wheel, is not suspended or the headway lost.

Concerning his device the patentee (lines 26 to 71 inclusive) says:

In the drawings A represents a circular or other suitably shaped tub, supported by legs, and having a cover B closing its top, that is hinged to the straight edge of a permanent strip b.

A vertical stirrer shaft C is journaled in the center of the cover, having its lower portion, extending into the tub, provided with a suitable stirrer-head (shown in dotted lines in Fig. 2 of the drawings,) and the portion above the cover provided with beveled pinion c, that is engaged by a beveled gear d on the adjacent end of a horizontally disposed drive-shaft D, which latter is journaled in standards secured to and arising from the screw-plate of the supporting-frame a. Shaft D extends beyond the edge of the cover a short distance, and is provided with a spur-gear E, the lowest segment of which, when the cover is down, is engaged by a segmental-rack e, that is secured to and made integral with a vertically disposed lever F. Lever F is fulcrumed at its lower end, near the bottom edge of the tub, to a vertically elongated supportingplate G, which latter, preferably, just below its center of height, is provided with an outwardly projecting bearing-stud g, on which is journaled a fly-wheel H of sufficient diameter, substantially as shown. The inner end of the boss of this fly-wheel is elongated and provided with a pinion h, which is, preferably, integral therewith. Between the top of the tub and said stud g, supportingplate G is provided with another outwardly projecting bearing-stud j, upon which a large gear J is journaled. This gear is actuated by the lever F, and is adapted to engage the pinion h and revolve the fly-wheel at a comparatively high speed. In order to enable said lever to actuate gear J, I provide the lever with a vertically elongated slot k, and provide gear J with a wrist-pin K, which projects outwardly from one of its arms, through the said slot k. The slot k is of a length corresponding to the diameter of the perimeter of the wrist-pin, and as said lever is moved back and forth it, through the medium of said wrist-pin, revolves the gear J. In order to avoid interference with pinion h, I provide the lever, below said slot, with a transversely elongated open frame M. The longitudinal sides of this frame are, preferably, struck from the center of the fulcrum of the lever, and are sufficiently far apart to clear the said pinion h as the lever is moved back and forth.

Figure 2 of the drawings is as follows, viz.:

The four claims of the patent here in suit read as follows:

1. In a mechanical movement for washing machines, a vertical rotary reciprocal stirrer-shaft, a rotary reciprocal drive-shaft the axis of which is at an angle thereto, and a pinion at the end thereof opposite said stirrer-shaft, in combination with a vertically disposed lever of the second class, a segmentalrack carried thereby and engaging said pinion, a fly-wheel the axle of which is parallel to that of said drive-shaft and means for transmitting the motion of said lever to said fly-wheel.

2. In a mechanical movement for washing machines, a vertically rotary stirrer-shaft, and a horizontally disposed drive-shaft connected to the same, in combination with a vertically disposed lever of the second class actuating said drive-shaft, a fly-wheel the axis of which is parallel to that of said drive-shaft, and means for transmitting the motion of said lever to said fly-wheel.

3. In a mechanical movement for washing machines, a vertical rotary reciprocal stirrer-shaft, a rotary reciprocal drive-shaft, the axis of which is at an angle thereto, and a pinion at the end thereof opposite said stirrer-shaft, in combination with a vertically disposed lever of the second class, a segmentalrack carried thereby and engaging said pinion, a fly-wheel the axis of which is parallel to that of said drive-shaft, and a gear the axis of which is parallel to that of said fly-wheel for transmitting the motion of said lever to said flywheel.

4. In a mechanical movement for washing machines, a vertical rotary stirrershaft, and a horizontally disposed drive-shaft connected to the same, in combination with a vertically disposed lever of the second class actuating said driveshaft, a fly-wheel the axis of which is parallel to that of said drive-shaft, a gear the axis of which is parallel to that of said fly-wheel for transmitting the motion of said lever to said fly-wheel.

It will be noted that the patentee nowhere enumerates the "line · of cleavage," so-called, as one of the advantages, and the chief one, which his device in suit presents. He lays particular stress upon the service of the fly-wheel in the specification. It was only in his rebuttal that appellee's expert developed the theory or feature of the line of cleavage. In his Patent No. 887,022, granted May 5, 1908, the operation of lifting out of and restoring the driving-shaft gear to mesh with the rack or segmental gear upon the lever is described at lines 61 to 62, col. 1, p. 2. In a letter written May 18, 1907, by the patentee to appellee he refers to his device as—

the only washing machine in the world that will open or close with the mechanism running at full speed.

This was prior to the filing of the application for the patent in suit. Sometime during January, 1907, the patentee disclosed the device to the secretary of appellee, who directed him to proceed to manufacture a washtub device in accordance with the sketches. The exhibit "white flyer," later termed "white washer," made sometime in January or February, 1907, wherein the fly-wheel is located under the tub, was the result.

It is appellant's contention that, not having specifically described or claimed this line of cleavage feature in the patent sued on, the

patentee may not rely upon the means for effecting that result as a part of his invention. As will be seen from claims 1 and 3 of the patent, the patentee produced a mechanical arrangement which in itself disclosed the line of cleavage. No prior patent for a leveroperated device covered it, although patentee had filed an application prior to that for the present patent which did in terms disclose it as above set out.

Appellee made little use of this device of the patent in suit in the exact form shown in the patent. It was found advantageous to substitute a link and crank for the slot and crank-pin used by the patentee in driving the fly-wheel. Plagman, appellee's foreman, took out Patent No. 895,585 on August 11, 1908, which covered the use of the link and crank, which device was thereafter used by appellee. Counsel for appellee says of this change:

The Victor slot has to be made by a milling operation, and this must be done by skilled mechanics on a milling machine, whereas the link construction of Plagman calls only for a drilling operation, and this can be done by boys. Fig. 2 of this patent is here reproduced:

It will be noticed that Plagman locates his fly-wheel under the tub. Appellant manufactures what it calls its spinner-machine, under Patent No. 939,645, granted to A. Van Wormer on November 9, 1909, for gearing for washing-machines. Its lever is operated by an up-and-down pumping movement instead of the backward-andforward movement of the patent in suit. It employs a somewhat different and less effective arrangement of the lever. Appellant lays stress upon the claim that it does not employ the lever of the second class exclusively, which appellee, so appellant avers, is limited to under the claims in suit, but does employ for the operation of its flywheel a lever of the first class, and for its drive-shaft part of the time a lever of the second class and part of the time a lever of the first class. Its fly-wheel and speeding-gear are attached to and car

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