same is true of the one roller of defendant's recorder. Dey was but an improver, in no sense or degree a pioneer, and the range of allowable equivalents is so narrow, and the defendant's recorder, in respect to the very elements in question, is so plainly and distinctly differentiated from complainant's, that infringement is not made out. If I have any proper conception of the principle repeatedly declared by the Supreme Court of the United States and plainly and recently stated in Cimiotti Unhairing Co. v. American Fur Refining Co., 198 U. S. 399, 406, 407, 25 Sup. Ct. 697, 49 L. Ed. 1100, infringement is not established in this case. The syllabus of that case is as follows: "A greater degree of liberality and a wider range of equivalents are permitted where the patent is of a pioneer character than when the invention is simply an improvement, although the last and successful step, in the art theretofore partially developed by other inventors in the same field. "The patent involved in this case for the unhairing of seal and other skins, while entitled to protection as a valuable invention, cannot be said to be a pioneer patent. "In making his claim the inventor is at liberty to choose his own form of expression, and, while the courts may construe the same in view of the specifications and the state of the art, it may not add to or detract from the claim. "As the inventor is required to enumerate the elements of his claim, no one is the infringer of a combination claim, unless he uses all the elements thereof. "Where the patent does not embody a primary invention, but only an improvement on the prior art, the charge of infringement is not sustained, if defendant's machines can be differentiated." In the opinion, the court says: "In determining the construction to be given to the claim in suit, which is alleged to be infringed, it is necessary to have in mind the nature of this patent, its character as a pioneer invention or otherwise, and the state of the art at the time when the invention was made. It is well settled that a greater degree of liberality and a wider range of equivalents are permitted where the patent is of a pioneer character than when the invention is simply an improvement, may be the last and successful step. in the art theretofore partially developed by other inventors in the same field. Upon this subject it was said by this court, in Westinghouse v. Boyden Power Brake Co., 170 U. S. 537, 18 Sup. Ct. 707, 42 L. Ed. 1136, quoted with approval in Singer Co. v. Cramer, 192 U. S. 265, 24 Sup. Ct. 291, 48 L. Ed. 437: "To what liberality of construction these claims are entitled depends to a certain extent upon the character of the invention, and whether it is what is termed in ordinary parlance a "pioneer." This word, although used somewhat loosely, is commonly understood to denote a patent covering a function never before performed, a wholly novel device, or one of such novelty and importance as to mark a distinct step in the progress of the art, as distinguished from a mere improvement or perfection of what had gone before.' In making his claim, the inventor is at liberty to choose his own form of expression, and, while the courts may construe the same in view of the specifications and the state of the art, they may not add to or detract from the claim. And it is equally true that, as the inventor is required to enumerate the elements of his claim, no one is an infringer of a combination claim unless he uses all the elements thereof. Shepard v. Carrigan, 116 U. S. 593, 597, 6 Sup. Ct. 493, 29 L. Ed. 723; Sutter v. Robinson, 119 U. S. 530, 541, 7 Sup. Ct. 376, 30 L. Ed. 492; McClain v. Ortmayer, 141 U. S. 419, 425, 12 Sup. Ct. 76, 35 L. Ed. 800; Wright v. Yuengling, 155 U. S. 47, 15 Sup. Ct. 1, 39 L. Ed. 64; Black Diamond Co. v. Excelsior Co., 156 U. S. 611, 617, 15 Sup. Ct. 482, 39 L. Ed. 553; Walker on Patents, § 349." And in the recent case of Computing Scale Company of America v. Automatic Scale Company (decided by the Supreme Court February 25, 1907, not yet officially reported), 27 Sup. Ct. 307, 51 L. Ed., the court said: "Conceding that this spiral rod and its connections with the cylinder in the manner and for the purposes stated is a novel feature in the combination and entitled to protection, it is of that narrow character of invention which does not entitle the patentee to any considerable range of equivalents, but must be practically limited to the means shown by the inventor. The distinction between pioneer inventions permitting a wide range of equivalents, and those inventions of a narrow character, which are limited to the construction shown, has been frequently emphasized in the decisions of this court. Cimiotti Unhairing Co. v. American Fur Refining Co., 198 U. S. 399, 406, 25 Sup. Ct. 697, 49 L. Ed. 1100, and cases therein cited. Thus limiting the invention, we do not think the construction of the defendant amounts to an infringement." In view of a patent to said John Dey dated July 10, 1894, No. 522,784 (the patent in suit is dated August 7, 1894), and granted 27 days prior to the grant of the patent in suit, but applied for January 16, 1893, about two months after the filing of the application for the patent in suit (the patent in suit was applied for November 11, 1892), I do not see how it can be claimed that the single-roller construction, the roller carrying the band and doing the work of a platen, and used by defendant, is covered broadly, or otherwise, by claim 1 of the patent in suit. Having applied for the patent in suit November 11, 1893, and inserted claim 1 for the combination therein mentioned, including as a necessary and material element the specific platen described in the specifications, on the 16th day of January, 1893, 65 days later John Dey applied for another patent for workman's time recorder, consisting "more particularly in specific improvements of the construction and combination of the details of the apparatus as hereinafter fully described and set forth in the claims." He then mentions the clock mechanism, the time-printing wheels, and then says: "Beneath the minute-wheel, C, and hour-wheel, C', is the impression roller, R, mounted longitudinally movable on a shaft, a''', which is parallel with the shaft of the said minute-wheel and journaled in vertically movable props. P, P, by which the roller, R, is lifted to cause the types of the wheels, C, C'. to make their impressions on the band of paper secured to the periphery of the roller. This paper has printed upon it consecutive numerals arranged in a row extending lengthwise of the paper, and I preferably wind one end thereof upon a spool, R', mounted on the shaft, a''', inside of the roller, R, which latter is formed hollow and provided with a transverse slot in its periphery, through which slot the paper band passes and thence around the external periphery of the roller and back through the aforesaid slot and is clamped or otherwise suitably fastened to the inner periphery of the roller, as illustrated in Fig. 3 of the drawings. At the end of each working day the portion of paper containing the records is removed from the roller, R, and torn from the roll, and another section of paper is drawn out and applied to the exterior of the roller, R, in the manner as before described. The successive sections of the roll of paper are numbered alike." To produce the impressions of the minute-wheel, C, and hourwheel, C', upon the paper band mounted on the roller, R, the ink ribbon, 1, is interposed between said wheels and paper. * * In order to allow the recordings during different periods of the day to be made distinctly on the band of paper, I make the latter and its carrying roller, R, of sufficient width to allow the different times of recording to be printed in rows opposite the respective numbers marked on the paper, and to allow the roller to be shifted laterally and thus permit the printing to be done at different points in the width of the paper I mount said roller loosely on its shaft, a''', and connect it thereto by a spline in the hub of the wheel entering a longitudinal groove, s, in the shaft." He then claims: "(1) In combination with the time-printing wheel and a revoluble impression roller, a lever turning said roller, a rock-shaft moving said roller toward the printing wheel and a plunger operated by the lever and actuating said rock-shaft, as set forth." This roller carries on its periphery the impression band of the patent in suit. It carries this band into contact with the time-printing wheels, and it must perform every function of the platen of the patent in suit, operating in substantially the same way to produce precisely the same result, if the single roller of defendant's recorder is the equivalent of and takes the place of the platen specifically described in the patent in suit. In short, if claim 1 of the patent in suit is broad enough to include the single roller carrying the impression band, and does, then we have a case of double patenting. To my mind the fact that the same patentee, two months after applying for the patent in suit, applied for a patent for this single roller carrying on its periphery the impression band and doing the printing by being brought into contact with the time-printing wheels, demonstrates that he had no conception, idea, thought, or intent that the said single roller, carrying the band, was the equivalent of the platen he had described in his application. for the patent in suit. It shows conclusively that the patentee himself so differentiated them that it cannot be contended the single roller construction and operation is covered by claim 1 of the patent in suit. If it is so covered, then claim 1 of the patent in suit is void. It is in this element that complainant says his invention resides. As he had. a patent for it July 10, 1894, in combination with other old elements, working in a given old way, to produce an old result, how could he have another valid patent for the same element in combination with other old elements, operating in the old way, to produce the old result? The complainant's expert repeatedly admits that defendant's recorder does not have the specific form or embodiment of parts or mechanism shown and described in claim 1 of the patent in suit, and that it is only by reading into such claim elements not referred to that an operative recorder is found, or that the claim covers or can be applied to defendant's structure. In short, according to this expert, we must change the reading of claim 1, and strike out the words "a platen actuated by said lever and pressing the band into contact with the timeprinting wheels as set forth," and substitute the words "means for effecting impressions of the printing mechanism on the record sheet." He thinks complainant entitled to a construction so broad that defendant's single roller is both the support and guide of the impression band, "band movable longitudinally in either direction," etc., and the "platen actuated by said lever and pressing the band," attached to and supported by and, in part, extended between two rollers without support, except as held "taut" by the mechanism described, "into contact with the time-printing wheels as set forth." I think such a construction is not warranted, in view of the language of the claim, the specifications, the fact that this is merely an improvement, and the decisions referred to. 152 F.-29 It should be noted that the following elements of claim 1 of the said patent to Dey of July 10, 1894, No. 522,784, are found in claim 1 of the patent in suit, viz.: Elements: (1) Each, time-printing wheel; (2) "revoluble" impression roller which includes band having the numbers, in the one patent, and “a band movable longitudinally," etc., in the other, being made movable by two rollers; (3) "rock-shaft moving said roller," etc., in the one and "platen * * * pressing the band into contact with the time-printing wheels" in the other, the pressing being done by the rock-shaft; (4) "plunger operated by the lever and actuating the rock-shaft" in the one end and "plunger" operating with the lever and rock-shaft to press "the band into contact with the time-printing wheels, as set forth," in the other. The plunger and rock shaft are both "set forth" and fully described in the description of the elements of claim 1 of the patent in suit. The functions are substantially the same in both patents. And then claim 1 of the patent in suit has the additional element of the "platen," which, as stated, is wholly omitted from defendant's recorder, as well as from patent No. 522,784, to Dey. In patent 522,784, "lever" is designated I; in patent No. 524,102, as g." "Plunger" as g in the one; as i in the other. Rock-shaft as e in the one, and as L in the other. In the patent in suit, we have "movable platen, C, which is attached to the free end of a spring-arm, c', fastened to a rock-shaft, d, pivoted to the plate, A," and "the platen receives its vertical oscillatory motion toward and from the type-wheel by means of a plunger, i, extending through * * * affixed to the rock-shaft, d, the outer end of the plunger bears," etc., and "in pushing the free end of the lever the plunger is forced inward and throws the platen towards the type-wheel." In the patent of July 10, 1894, No. 522,784, we have "the shaft is hollow and in the interior thereof is the longitudinally movable plunger, g, which is forced outward and caused to abut against the lever, F, by means of the spring, gʻ, pressing against the inner end of the plunger. On the exterior of the shaft * * * is a * * * collar, F, which is connected to the plunger, g, by * "" The result is that by pressing the free end of the lever, I, towards the case, A, the plunger, g, is pushed inward and carries with it the collar, F. This movement of the collar causes the finger, e', to turn the rock-shaft, e, which, and this action of the shaft causes * * * to lift the roller, R," etc. Again: "The shaft, l', receives its rocking motion. projecting from the rock-shaft, e, which is actuated by the plunger, g." And again: "Then by pushing the lever towards the case, A, the plunger, g, is actuated to arrest the movement of the minute-wheel, C, and lift the impression roller, R, to print the time upon the paper mounted on said roller." .* * * * * * * * * * * * * * * * * The complainant claims invention in this single roller construction and combination used by the defendant, and, such being the case, I do not understand how it can be claimed as the equivalent of the platen of claim 1 of the patent in suit. An equivalent must not vary in any manner the idea of means, or affect it in any degree. It is quite true that the equivalent may perform some new or additional function in the invention, and still be an equivalent; but it must perform all the functions of the element for which it is a substitute in substantially the same way, and I do not think that it is material that the element for which another is substituted has more parts or less parts. The substitution of an equivalent is, however, a mere change of parts and form involving no inventive skill, but suggested by the invention itself to every person skilled in the particular art. If the alleged equivalent not only performs the function of the element for which substituted, and perhaps more, but introduces into the combination a new idea, or new ideas, or a much more extended development of the idea of means, then we do not have the substitution of an equivalent, but a patentable improvement-something different in principle and function. In combination claims this is especially true. 1 Rob. on Patents, 254; Wells v. Curtis, 66 Fed. 318, 13 C. C. A. 494; 20 Eng. Pat. Cas. Am. Notes, 271. When we have in combination certain elements working together and co-operating to produce a given result, they work in accordance with and in obedience to some law of co-operative action. When we change one element which works and operates differently from the one for which it is a substitute we necessarily change the action of all, and then the combination operates according to and in obedience to another co-operative law, and we have a new combination working in a different way to produce a result, and it may be the same result; but it is not obtained in the same way by the co-operation of the same elements or their equivalents. Such, in my judgment and opinion, is this case. It is not enough that the two elements, one of which is alleged to be the equivalent of the other, perform the same function when in the same place; but they must perform that function by applying the same force to the same object, through the same mode of application. Goodyear Dental Vulcanite Co. v. Davis, 102 U. S. 222, 26 L. Ed. 149, which was a patent for a process; Burr v. Duryee, 1 Wall. 531, 572, 17 L. Ed. 650, 660, 661; Westinghouse v. Power Brake Co., 170 U. S. 568, 569, 18 Sup. Ct. 707, 42 L. Ed. 1136; Curtis on Patents (4th Ed.) § 310; Machine Co. v. Murphy, 97 U. S. 125, 24 L. Ed. 935; Carter Machine Co. v. Hanes (C. C.) 70 Fed. 859, 865; Duff Mfg. Co. v. Forgie, 59 Fed. 772, 775, 8 C. C. A. 261, citing and approving 1 Rob. on Pats. § 247. The object or purpose of the patent in suit is to print on the band or time slip, by means of the type, and by bringing the two in contact, the hour and minute of the workman's arrival and departure. The object and purpose of defendant's device is the same. The force employed is applied to the same object, viz., the band, through the medium of certain mechanism. If that force is the hand of the workman manipulating and pushing the lever, we have the same force. If it be the platen in the one case, and the roller in the other, each of which presses the band against the type because of the force applied by the workman, we do not have the same identical "force," but an equivalent "force," clearly. Hence we have the same force applied to the same object, to accomplish the same purpose or result. The question remains: Is this force applied to this object and to accomplish the pur |