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pose through the same mode of application? But "mode of application" does not mean the mere contact of the band with the type, but the mode of action of the mechanical devices used to bring them together. Is the same law of co-operative action employed in both cases acting through substantially the same means?

In the claim in suit of the complainant's patent, this impression band is carried on two rollers, and must be movable longitudinally. This is the essence of this element of the claim and made so by express words. It is made so movable by two rollers on distinct shafts and arranged in the same horizontal plane which turn in unison and wind the band onto the one roller as it is unwound from the other. This longitudinal movement of the band is impossible in defendant's construction, and is not present. The law of its movement in defendant's construction is circumferential or rotary, and not longitudinal. In the one case the band is rotated with the roller as a whole to bring the required number to the type, and there is no winding and unwinding. The type and band are then brought together by raising the roller into contact with the type-wheel or by dropping the wheel into contact with the roller, and thus the printing is done; while in the other it is not rotated as a whole, but, as one part or end is unwound from one roller, it is carried longitudinally through space underneath the type on the printing wheels by the revolution of another roller, halted long enough to be pressed against such type by an independent platen and receive the impression, and then wound upon the other roller. It is the part suspended in space, away from both rollers, that is pressed against the type and receives the impression therefrom. It is so pressed against the type by independent means, a distinct element of the claim absolutely essential to its operativeness by the action of other laws, by the same force, but applied in a different way, and by different means.

I deem it immaterial that two elements of a claim of one patent are inserted in one element of the claim of an alleged infringing patent. Bundy Mfg. Co. v. Detroit Time Reg. Co., 94 Fed. 524, 538, 36 C. C. A. 375. Such union of the two elements does not avoid infringement, provided they both be there. But both must be found in the alleged composite element; that is, both must be found in the infringing device. It is no answer to say that both are unnecessary, and one may be dispensed with without impairing the claim or patented device. The patentee, by putting it in as an element of the combination, makes it essential. Take it out, and you no longer have the combination of the patent. If invention is involved in joining the two, then, within the cases cited, there is no equivalency. Here claim 2 of the patent in suit has as its second element "a band movable longitudinally in either direction," etc. These words "movable longitudinally" are not merely descriptive of the band, but show an essential mode of putting the band into the combination, attaching it to, or connecting it with, the other elements to make an operative device or apparatus. Unless so movable, the recorder is wholly inoperative. Such a band defendant does not use. If the two rollers, D, D', are not an essential part of the second element of claim 1 of the patent in suit, then we have simply a band in the combination designed to be put in, printed on and removed like. the sheet of paper in a typewriter, and it becomes a fugitive element,

not a proper element of a patentable claim. Morgan Envelope Co. v. Albany Co., 152 U. S. 425, 14 Sup. Ct. 627, 38 L. Ed. 500; Stearns v. Russell, 85 Fed. 218, 225, 29 C. C. A. 121.

Here claim 2 of the patent in suit has another element, "a platen actuated by said lever and pressing the band into contact with the time-printing wheels as set forth." Such a platen defendant does not have. It has one roller on which a band not movable longitudinally is wound, and there is no platen whatever in the sense of the patent, for the reason that in defendant's construction and mode of operation and printing a platen is wholly unnecessary. The roller carrying the band is all-sufficient. Defendant dispenses wholly with one roller, the platen, and much mechanism necessary for the operation of that platen. It substitutes nothing. Defendant requires no substitute, no equivalent. It, by changes of mechanical means and a different mode of operation, a change in the idea of means, makes one roller do the work of two rollers and a cumbersome and involved platen. Defendant may infringe the Dey patent, No. 522,784, if it be valid; but that question is not in this case. No such claim is made in the bill of complaint herein.

There is great doubt that John Dey invented the recorder of the patent in suit; but I cannot say it is established beyond a reasonable doubt that F. E. Cable, and not John Dey, was the inventor. The payment to Cable of $1 in addition to his wages on every machine made is an important circumstance; but he was quiet, and allowed Dey to take out the patent in his own name, and has been silent since. What others "understood" is hardly evidence that Cable was the inventor. But it is unnecessary to pursue that feature of the case. I have fully canvassed the prior art, which shows Dey to be but a mere improver in the art, and not entitled to a broad range of equivalents. This is emphasized by the fact his patent is for a mere combination, where the range of equivalents is much narrower than in other cases. 1 Robinson on Patents, §§ 254, 255; Carter M. Co. v. Hanes (C. C.) 70 Fed. 859; Duff Mfg. Co. v. Forgie, 59 Fed. 772, 8 C. C, A. 261.

Defendant does not infringe. There will be a decree dismissing the bill of complaint, with costs.

HEYWOOD BROS. & WAKEFIELD CO. v. SYRACUSE RAPID
TRANSIT RY. CO.

(Circuit Court, N. D. New York. March 27, 1907.)

1. PATENTS-VALIDITY AND INFRINGEMENT-CAR SEATS.

The Aze and Gilfillan (Wheeler, assignee) patent, No. 491,761, for a car seat having a reversible back of the "walk over" type, the essential feature of which is a pair of arms connecting the back to the seat frame, having the one end of the pair pivoted to the end of the frame near the center thereof by pivots arranged in a horizontal plane, and having the other or upper end of the pair pivoted to the end of the back by pivots arranged in a plane substantially at right angles to the plane of the back, in such method of pivoting discloses novelty and patentable invention, and is entitled to a broad range of equivalents. Also held valid as against the claim that the invention was made by another than the patentees and infringed by a seat having at one end a pair of arms exactly like those of

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

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. SAME-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. 491,761, relates to an entirely different thing, which is not claimed nor covered by the Curwen patent, and the fact that a structure conforms 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 Gilfillan 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 line 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 extending 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 thereof, 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.

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