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the patent, and at the other end a pair which were functionally equiva

lent. 2. SAME-EVIDENCE OF INVENTION-COMMERCIAL SUCCESS OF DEVICE.

In all cases the great commercial success of a patented device, and the fact that it supplants or supersedes other devices of the same kind used for the same purpose, are evidence of patentable invention, novelty, and utility of no mean order or low degree, and such facts are in many cases persuasive evidence of a most valuable conception.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 38, Patents, $ 39,

Utility, extent of use, and commercial success as evidence of invention,

see note to Doig v. Morgan Mach. Co., 59 C. C. A. 620.] 3. SAME-CONSTRUCTION OF CLAIMS-EFFECT OF PROCEEDINGS IN PATENT OF

FICE.

While it is settled law that a patentee who has acquiesced in the rejection of a broad claim by substituting a narrower one cannot insist upon a construction of the latter to cover that which was rejected, yet such rule does not debar him from a liberal construction of the claim as granted, nor from the benefit of the doctrine of equivalents.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Patents, $ 244.) 4. SAME--AMENDMENT OF CLAIMS.

If there was no amendment narrowing a claim of a patent in respect to the essential feature of the invention disclosed therein, amendments made in reference to an incidental matter intended to perfect the claim or device impose no restriction on the rights of the patentee in respect to equivalents.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Patents, $ 244.) 5. SAJE-INFRINGEMENT—CAR SEATS.

The patentable invention disclosed by the Curwen patent, No. 784,383, for a car seat, relates to one thing, while that of the Aze and Gilfillan patent, No. 191,761, relates to an entirely different thing, which is not clained nor covered by the Curwen patent, and the fact that a structure conforins to that of the latter patent and contains the patentable feature thereof is not even presumptive proof that it does not also embody the invention of the Aze and Giltillan patent and infringe the same. In Equity. Suit for alleged infringement of claims 2, 3, 4, 5, 10, and 11 of United States letters patent for car seat to Aze and Gilfillan, No. 491,761, dated February 14, 1893, on application filed November 24, 1891.' The defendant is a user of the alleged infringing seat.

Samuel Owen Edmonds (J. Edgar Bull, of counsel), for complainant.

Gannon, Spencer & Michell (Melville Church and Francis Rawle, of counsel), for defendant.

RAY, District Judge. The patent in suit relates to "car seats," although the same may be used in any place where such a seat is desired, and was issued February 14, 1893, on application filed November 24, 1891, to Emile Aze and Essington N. Gilfillan, assignors to Harris A. Wheeler. The seat constructed under this patent has come to be known, generally, as the “Wheeler Seat,” and will be so referred to, and the patent will be referred to as the “Wheeler Patent." This seat belongs to the type known as "walk over," as distinguished from the "turn over.” In both types the back of the seat is carried from the one side thereof to the other, being pivoted to the frame near the center of the seat at both ends in some manner, but in the

latter type the back turns completely over, making a half revolution, so that what was the upper edge when on one side of the seat becomes the lower edge when on the other, and consequently the same side of the seat back is always presented to the back of the occupant and receives the wear. The "walk over” back does not revolve at all, but is carried over, being pivoted to the frame, or frame and arm of the seat in some manner, always retaining its upright position, and consequently the same side of the seat back is not always presented to the occupant and both sides have equal wear, and the upper edge when in one position is the upper edge when in the other. There are other alleged advantages in the "walk over" type, such as ease and rapidity and certainty of movement, etc., when a change of position is desired; but it is unnecessary to go into detail, as the utility of the patented device, and, to an extent, the superiority of this "walk over" type, is conceded. The proof shows that, in many cases at least, this type of seat has superseded, and is superseding, the "turn over,” and has met, and is meeting with large sales.' Complainant's seat is a commercial success; has had, and now has, large sales, In short, it is conceded that the patent in suit discloses some patentable novelty, but defendant contends that it is not for a pioneer invention and is to be quite narrowly construed and limited, and that so construed and limited as it must be, in view of the prior art and the proceedings in the Patent Office, disclosed by the file wrapper, the defendant does not infringe. The defendant also insists that the patentee's assignors were not the first inventors, but that one Emery B. Cushing was, and therefore the patent is void. It insists that, as early as 1888, Cushing made the complete invention of the entire subject matter of the claims in suit, completed a working model which was operative, and disclosed his invention to some of his friends and neighbors. This alleged model is in evidence, and shows substantially all that is disclosed by the patent in suit. But it is not identified by any person except Cushing, and I do not think the proof shows it was in existence at any date prior to the application for and the granting of the patent in suit. Cushing applied for a patent on the device embodied in his model some two years after the patent in suit had been issued and the structures in accordance therewith had been put in practical and public use. A somewhat lame excuse for this delay has been given, but I am not satisfied with it. Undoubtedly he was at work on a car seat; but, if he had completed the model in suit, it is incredible that he did not apply for a patent. He was not a novice nor ignorant of the patent laws. In short, I find that Cushing was not the inventor, but that Aze and Gilfillan were.

The claims of the patent in suit which are in issue read as follows:

(2) In a reversible car seat, the combination with a frame and a back, of a pair of arms substantially equal in length, pivoted to each end of the back at their upper ends, and having their lower ends pivoted to the frame near the center thereof, the pivots connecting said arms to the back being arranged in a Jine extending at an angle to the plane of the back, substantially as set forth.

“(3) In a reversible car seat, the combination with a frame, and the back, of a pair of substantially parallel arms pivoted to said frame and to each side

of said back, and such latter pivots being in a line at right angles to the plane of the back, substantially as set forth.

"(4) In a reversible car seat, the combination with the frame and the back, of a pair of substantially parallel arms pivoted at their ends respectively to each side of the back and the frame, the pivots thereof at the upper end of the pair being arranged in a plane at right angles to the back and at the other end in a horizontal plane, substantially as set forth.

"(5) In a reversible car seat, the combination with a frame and a back, of a pair of substantially parallel supporting arms, pivoted to the lower edge of said back, and to the frame, at each side, and a stop for limiting the movement of said arms, the pivots connecting the arms to the back being arranged in a line extending at an angle to the plane of the back, and the pivots connecting the arms to the frame, being located near the center of the frame, substantially as set forth.”

****(10) In a reversible car seat, the combination with the frame of the back having heads rigidly fixed to both sides thereof, and arms pivoted to the said heads, and to both sides of the frame near the center thereof, the pivots connecting said arms to the said heads being normally arranged in a line extend ing at an angle to the plane of the back, substantially as set forth.

“(11) In a reversible car seat, the combination with the frame of the back having heads rigidly fixed thereto and projecting below the lower edge there. of, and arms pivoted to said heads, and to both sides of said frame near the center thereof, the pivots connecting said arms to the heads being arranged in a line extending at an angle to the plane of the back, substantially as set forth."

Claim 2 has in combination in a "reversible car seat” (1) a frame and a back; (2) “a pair of arms” substantially equal in length (a) pivoted to "each end" of the back at their (the arms) upper ends, and (b) having their (the arms) lower ends pivoted to the frame near the center thereof; and (3) the pivots connecting said arms to the back being arranged in a line extending at an angle (any angle?) to the plane of the back, substantially as set forth.

Claim 3 has in a "reversible car seat" the combination of (1) a frame; (2) a back; (3) a pair of substantially parallel arms (a) pivoted to said frame and (b) to each side (end) of said back; and (4) the pivots attaching the arms to the back being in a line at “right angles to the plane of the back.” Claim 3 differs from claim 2, in that the arms are “substantially parallel,” but not necessarily of substantially the same length, and the pivots connecting the arms with the back are in a line at “right angles” to the plane of the back, instead of extending at an angle to the plane of the back.

Claim 4 has, in a "reversible car seat,” the combination (1) with the frame and the back; (2) a pair of substantially parallel arms (a) pivoted at their ends respectively to each side (end) of the back and the frame, the pivots thereof (b) at the upper end of the pair being arranged in a plane at right angles to the back, and (c) at the other end in a horizontal plane. This claim mentions the manner in which the lower end of the pair is pivoted to the frame."

Claim 5 calls the arms “supporting arms,” which they are in fact in all the claims, pivots the upper end to the "lower edge of said back," intending evidently the lower position of the edge of the end, not the edge of the lower side, although this might be done, adds a "stop" for limiting the movement of the arms, but the pivots connecting the arms to the back are not necessarily arranged in a line extending at a right angle" to the plane of the back.

Without describing the other claims more in detail, the main idea present in each claim is a “pair of arms” pivoted at each end of the pair; the one end being pivoted to one end of the back of the seat; and the other end to the corresponding end of the frame of the seat. It is conceded by both parties that claims 3, 4, 5, 10, and 11 are to be read with "end" substituted for "side," where the pivoting of the pair of arms to the back is spoken of, and that each claim in suit calls for two “pair of arms," one pair at each end of the seat. Read as they do read, literally, this is not true, for in claims 3 and 4, for instance, only one pair of arms is mentioned, and this pair of arms (two arms make a pair of arms) is pivoted at one end thereof (not at each end of each arm) to each side of the back. This is possible and practicable, for the one arm of the pair could be pivoted to the front side of the back, and the other arm of the pair to the back side of the back. Claim 2 expressly states that a pair of arms is to be pivoted to each end of the back. Hence that claim calls for two pairs of arms. But a reference to the proceedings in the Patent Office demonstrates beyond all question that the claims were only allowed when changes were made which included two pairs of arms, one pair at each end of the seat, and complainant's expert testified "the words 'end' and 'side, while referring to the pivotal connection of the arms to the back and the seat frame, mean one and the same thing.".

Claim 2 now in suit was an additional claim (5) presented June 17, 1892, and read as follows:

"In a reversible car seat, the combination with a frame and a back, of a pair of arms substantially equal in length, pivoted to each end of the back and to the frame, the pivots connecting said arms to the back being arranged in a line extending at an angle to the plane of the back, substantially as set forth."

This took the place of original claim 5, which became claim 7. This additional claim was objected to July 19, 1892, as follows:

"Claims 5, 7, 9, and 10 are each rejected as expressed on the patent to Stanley, reversible seat, . No. 186,505, January 23, 1877 (Car Seats). These claims should each set forth the arms at each side of the back."

This meant each end of the back; that is, the aisle end and the end next the side of the car. September 17, 1892, the applicants amended this claim, then 5, now 2, as follows:

"Claim 5, line 3, cancel 'and to the frame' and insert ‘at the upper ends, and having their lower ends pivoted to the frame near the center thereof.'”

This was done, and the additional claim 5, substituted for original claim 5, which had become claim y by amendments, etc., of June 17th, became claim 2 of the patent in suit.

The history of claim 3 of the patent in suit is as follows: Original claim 4 read:

"In a reversible car seat, the combination with the ick, of a pair of substantially parallel arms pivoted to said back and such pivots being in a line at right angles to the frame of the back."

January 23, 1892, this was objected to as follows:

"Claims 3, 4, 7, and 8 are objectionable in form for the reasons urged against claim 1, and are rejected on the reference cited therefor."

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The objections and reference as to original claim 1 were:

"Claim 1 is indefinite and incomplete. The supporting frame and the pivoted connection of the arms thereto should be included. It is rejected on patent to Norcross, No. 436,313, September 9, 1890.”

June 17, 1892, the applicants said by way of amendments:

"Claim 4, line 1, after 'with' insert ‘a frame.' Line 2, after 'said' insert 'frame and to.' Line 4, change 'frame' to 'plane. Same line, after 'back' insert 'substantially as set forth.' Also change numerals of claims 2, 3, 4, to 3, 4, 6,

respectively, and insert the following additional claims."

Claim 4 then became claim 6; a new claim, later claim 2, coming in as claim 5. In reference to the claims as thus presented, the applicants said:

"Claims 5, 6, 7, and 8: The reference does not show pivots at the upper ends of the arms arranged in a line at rigbt angles to the back, nor are the arms substantially equal in length. By such construction, the plicants gain all of the advantages of the references, and none of the disadvantages, and with applicants' construction, the armis need not project above the bottom cushion, and yet they produce the maximum length of throw."

July 19, 1892, the Patent Office said, “Claim 6 when amended to include a pair of arms at each side of the back may be allowed.” The words “each side (end) of said," before “back,” in line 4 of claim 3 in the patent, and the word "and,” after “frame," line 1, were then inserted, and by cancellation of claims and change of numerals claim 6, original claim 4, became claim 3 of the patent in suit.

It is evident, therefore, that while this claim was originally rejected on Norcross, No. 436,313, this was not persisted in in face of the protest and statement of June 17th, already quoted, calling attention to the arrangement of the arms in a line at right angles to the back and their pivoting to the back in that form and to their equal length. The Patent Office acquiesced in the equity of that contention, and requirea the addition merely of another pair of arms at the other end of the seat.

Norcross, No. 436,313, September 9, 1890, shows a pair of arms (levers) at the end of the seat; each arm having a short right angle arm at the lower end, which short arms are crossed upon each other, said levers (arms) lying edge to edge in the same vertical plane when the back is in position, and are pivoted to the seat frame at their lower ends on the same horizontal line, and to the back at their upper ends "as set forth.” As set forth, “Plates, G, are attached to the ends of the back and the levers (arms), FF', are pivoted to it in such a position as to be relatively reversed as to points of attachment with reference to their lower ends,” and so as to bring the one or the other of then under a spring bolt shown when the back is in position for occupancy. While these levers or arms are pivoted to the seat frame "on the same horizontal line," they may or may not be pivoted to the end of the back of the seat by pivots arranged in a line extending at an angle to the plane of the back, or by pivots "being in a line at right angles to the plane of the back.” Norcross is not only silent on the subject, but shows a pivoting of the arms to the back of the seat that is entirely and radically different from the conception of the patent in suit. On this point, the patent in suit says:

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