relatively to the stamp. It has no movement in any direction. But the time stamp, etc., is adjustable with reference to or relatively to the card guide or receiver. The Cooper patent, on the other hand, has a card guide or receiver adjustable relatively to the stamp in one direction; that is, we move the card receiver by means of an independent lever or handle laterally from right to left at will, thus bringing any desired column of the card in front of the time stamp for the printing. There is no patentable novelty in this movement or in the mechanism or means for producing it. Nor is there any patentable novelty in defendant's movement or means for producing it. Any skilled mechanic would have made the desired arrangement and produced the necessary mechanisin in either case. To bring the two parts "by hand" into juxtaposition for printing the time on the card at any desired point was a simple matter; but the element is in the combination of claim 1, and it is made an essential element. Given a combination without it, and it is no longer the combination of claim 1 of the patent in suit.

Has Cooper, a mere improver, limited himself to "a card guide or receiver adjustable relatively to the stamp in one direction," in a combination with an actuating device for causing the stamp to mark a card in the receiver and "an abutment for limiting the movement of a card relatively to the stamp," and which abutment is independent of the stamp-actuating device and "adjustable in a direction at an angle to the before-described movement of the guide" or card receiver? The movement of the card receiver itself is twice emphasized. Evidently the inventor, Cooper, had no conception of a movement of the time stamp, etc., into proper juxtaposition with a stationary card receiver, and consequently with the card contained therein. Is the one movement and the means for producing it the fair and well-known equivalent of the other, and is complainant entitled to the benefit of the doctrine of equivalents? I think there can be no question that the one is the equivalent of the other in purpose and result. But the language of the claim is so emphatic, so precise, and definite, and the idea of a movable abutment so repeated, that we are almost compelled to the conclusion that the patentee has knowingly and designedly limited his claim to such a movement and mechanism for producing it. If this element itself imported into or embodied in the claim patentable novelty, was not old and simple, a well-known movement and mechanism, one suggested to any mechanic skilled in the art, and not emphasized and repeated in the language quoted, I should be disposed to hold that the complainant is entitled to the doctrine of equivalents. As it is, I do not think it is. The specifications, while not limiting the patentee as to mechanism for producing the movement of the guide, or receiver, do not suggest or imply any movement or mechanism for a movement other than that of the receiver, a movable card guide or receiver, one adjustable relatively to the stamp in one direction. A mechanism for moving and adjusting the time stamp and mechanism connected therewith relatively to some fixed object, as the card receiver, is quite different from a mechanism for moving and adjusting the simple card receiver itself relatively to the time stamp. It is well settled that an inventor, a mere improver, may so limit himself by the language of

his claims as to lose the benefit of a broad construction or interpretation of his claim, and so limit himself to a very narrow range of equivalents, and, as the Supreme Court of the United States has said in the recent case of Computing Scale Company of America v. Automatic Scale Company (decided February 25, 1907), 27 Sup. Ct. 307, 51 L. Ed. practically to the means shown by the inventor. See, also, Cimiotti Unhairing Co. v. American Refining Co., 198 U. S. 399, 406, 407, 25 Sup. Ct. 697, 49 L. Ed. 1100, and cases there cited. 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 theretotore 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."

It is conceded by complainant's counsel, as indeed, the evidence shows, that defendant's alleged infringing device is in some respects an improvement upon complainant's, and clearly it is differentiated. Complainant claims infringement of claim 1 of the patent in suit by defendant's exhibit, defendant's Time Recorder No. 2, only. I do not think the defendant's fixed card receiver and laterally movable time wheels and mechanism for doing the work a mere reversal of the fixed time stamp and laterally-movable card receiver of claim 1 of the patent in suit. By a reference to the prior art, Martin and MacCoy British patents, Parkes British patent, and the Dey patents, it will be seen that defendant has done only what the prior art, aside from the patent in suit, warranted and justified him in doing in his combination. That prior art was open to the world so far as complainant is concerned and as defendant has utilized it, and not complainant's combination, it does not infringe,

I find infringement of claim 4 of the patent in suit only, but not by defendant's weekly time recorder No. 2. There will be a decree accordingly.

DAVIS et al. v. GARRETT.

(Circuit Court, D. New Jersey. April 9, 1907.)

PATENTS-SUIT IN EQUITY TO OBTAIN PATENT-PROCEDURE ON DEFAULT.

In a suit in a Circuit Court under Rev. St. § 4915 [U. S. Comp. St. 1901, p. 33921, to obtain a patent, application for which has been refused by the Patent Office and the appellate tribunal, the complainant is not entitled to a decree adjudging his right to a patent as a matter of course on default by the defendant, but must establish such right, including the patentability of his alleged invention by proofs, and where the defendant

has entered an appearance, although in default for want of pleading, he is entitled to notice before final decree is entered.

[Ed. Note. For cases in point, see Cent. Dig. vol. 38, Patents, § 166.]

In Equity. On application for final decree.

Melville Church, for complainants.

LANNING, District Judge. The bill of complaint in this cause is filed under the provisions of section 4915 of the Revised Statutes [U. S. Comp. St. 1901, p. 3392]. The defendant has entered appearance, but has not answered the bill. On December 26, 1906, an order that the bill be taken pro confesso was entered under the provisions of equity rule No. 18. Application is now made by the complainants for a final decree. Section 4915 is as follows:

"Whenever a patent on application is refused, either by the Commissioner of Patents or by the Supreme Court of the District of Columbia upon appeal from the Commissioner, the applicant may have remedy by bill in equity; and the court having cognizance thereof, on notice to adverse parties and other due proceedings had, may adjudge that such applicant is entitled, according to law, to receive a patent for his invention, as specified in his claim, or for any part thereof, as the facts in the case may appear. And such adjudication, if it be in favor of the right of the applicant, shall authorize the Commissioner to issue such patent on the applicant filing in the Patent Office a copy of the adjudication, and otherwise complying with the requirements of law. In all cases, where there is no opposing party, a copy of the bill shall be served on the Commissioner; and all the expense of the proceeding shall be paid by the applicant, whether the final decision is in his favor or not."

The question now presented for consideration relates to the practice that should be observed where no answer has been filed to such a bill. The court is asked, as the designated agent of the government, to grant to the complainants a monopoly of an invention by authorizing the Commissioner of Patents to issue a patent for the invention described in the bill of complaint. The case is therefore not like an ordinary suit in equity between private parties. The government itself has an interest in the suit, and it is the duty of the court to pass upon the merits of the application, and not to give to the complainants, as a mere matter of course, the decree for which they pray. That this is so seems clear from the reasoning of the Supreme Court in the case of Hill v. Wooster, 132 U. S. 694, 10 Sup. Ct. 228, 33 L. Ed. 502. In that case issue was joined, voluminous proofs were taken, and the complainant received a decree in his faver adjudging that he was entitled to receive a patent for the invention described in his application, notwithstanding the contrary conclusions reached in interference proceedings before the examiner of interferences, the examiners in chief. and the Commissioner of Patents. It seems that the only question considered by the Circuit Court related to priority of invention as between the parties to the interference proceedings, but the Supreme Court said:

"The provision of section 4915 is that the Circuit Court may adjudge that the applicant is entitled, according to law, to receive a patent for his invention, as specified in his claim, or for any part thereof, as the facts in the case may appear,' and that, if the adjudication is in favor of the right of the applicant, it shall authorize the Commissioner to issue the patent. It necessarily follows that no adjudication can be made in favor of the applicant unless the al

leged invention for which a patent is sought is a patentable invention. The litigation between the parties on this bill cannot be concluded by solely determining an issue as to which of them in fact first made a cabinet creamery. A determination of that issue alone in favor of the applicant, carrying with it, as it does, authority to the Commissioner to issue a patent to him for the claims in interference, would necessarily give the sanction of the court to the patentability of the invention involved. The parties to the present suit appear to have been willing to ignore the question as to patentability in the present case, and to have litigated merely the question of priority of invention, on the assumption that the invention was patentable. But neither the circuit court nor this court can overlook the question of patentability."

The court then examined the claims set forth in the complainant's bill and adjudged that the decree of the Circuit Court should be reversed on the ground that there was no patentable invention in what the complainant had set up in his bill. Gandy v. Marble, 122 U. S. 432, 7 Sup. Ct. 1290, 30 L. Ed. 1223, is also a case in which a bill was filed under section 4915. The defendants were the Secretary of the Interior and the Commissioner of Patents. Neither of the defendants appeared. Their default was entered, and full proofs, including a copy of the proceedings in the Patent Office, were thereafter taken. This seems to indicate the correct practice, for, as was said in that case, although "the proceeding by bill in equity, under section 4915, on the refusal to grant an application for a patent, intends a suit according to the ordinary course of equity practice and procedure, and is not a technical appeal from the Patent Office, nor confined to the case as made in the record of that office, but is prepared and heard upon all competent evidence adduced and upon the whole merits, yet the proceeding is, in fact, and necessarily, a part of the application for the patent." And in Morgan v. Daniels, 153 U. S. 124, 14 Sup. Ct. 772, 38 L. Ed. 657, in a proceeding brought under section 4915, it was further said:

"But this is something more than a mere appeal. It is an application to the court to set aside the action of one of the executive departments of the government. The one charged with the administration of the patent system had finished its investigations and made its determination with respect to the question of priority of invention. That determination gave to the defendant the exclusive rights of a patentee. A new proceeding is instituted in the courtsa proceeding to set aside the conclusions reached by the administrative department, and to give to the plaintiff the rights there awarded to the defendant. It is something in the nature of a suit to set aside a judgment, and as such is not to be sustained by a mere preponderance of evidence. Butler v. Shaw (C. C.) 21 Fed. 321, 327. It is a controversy between two individuals over a question of fact which has once been settled by a special tribunal, intrusted with full power in the premises. As such it might be well argued, were it not for the terms of this statute, that the decision of the Patent Office was a finality upon every matter of fact. Upon principle and authority, therefore, it must be laid down as a rule that, where the question decided in the Patent Office is one between contesting parties as to priority of invention, the decision there made must be accepted as controlling upon that question of fact in any subsequent suit between the same parties, unless the contrary is established by testimony which in character and amount carries thorough conviction."

*

These authorities make it clear, I think, that before granting a final decree I should have before me a copy of the proceedings in the interference cases, with any other competent evidence the complainants may

wish to offer. And after the proofs shall have been taken and the complainants are ready to apply for a final decree the defendant, since he has entered appearance, will be entitled to not ce for the reason that he is entitled to be heard concerning the form of the decree. Southern Pacific R. Co. v. Temple (C. C.) 59 Fed. 17.

An order will be made referring the cause to a master to take proofs.

CILLEY v. UNITED SHOE MACH. CO. (Circuit Court, D. Massachusetts.

No. 27.

February 13, 1907.)

MONOPOLIES-ACTION FOR DAMAGES UNDER ANTI-TRUST LAW-PLEADING. In an action under section 7, Anti-Trust Act July 2, 1890, c. 647, 26 Stat. 209 [U. S. Comp. St. 1901, p. 3202], to recover damages for injury alleged to have been caused to plaintiff by reason of contracts made by defendant in restraint of trade or commerce among the several states or with foreign nations, and an attempt by defendant to monopolize such trade or commerce, or a part thereof, in violation of said act, it is not sufficient to frame the declaration in the language of the statute, but the nature and substance of the contracts relied upon, and the substantial facts alleged to constitute an attempt at monopoly must be pleaded to enable the court to determine whether they are in violation of the statute, and to enable the defense to properly prepare to meet the charge.

At Law. On demurrer to declaration.

Merritt & Merritt, for complainant.

Wm. H. Coolidge and C. A. Hight, for defendant.

COLT, Circuit Judge. This is a suit brought under the provisions of Act Cong. July 2, 1890, 26 Stat. 209, c. 647 [U. S. Comp. St. 1901, p. 3202], in which the defendant is charged with making contracts in restraint of trade or commerce among the several states or with foreign nations, and with an attempt to monopolize such trade or commerce, whereby the plaintiff has been injured in his business and property. Section 7 of the act provides as follows:

"Any person who shall be injured in his business or property by any other person or corporation by reason of anything forbidden or declared to be unlawful by this act, may sue therefor in any circuit court of the United States in the district in which the defendant resides or is found, without respect to the amount in controversy, and shall recover three-fold the damages by him sustained, and the costs of suit, including a reasonable attorney's fee."

* * *

Among the things forbidden or declared unlawful by the act are "every contract in restraint of trade or commerce among the several states or with foreign nations," and every "attempt to monopolize" such trade or commerce.

The case was heard on demurrer to the amended declaration. The grounds of demurrer on which the defendant relies are the following:

"(2) The declaration is insufficient in that it is too uncertain, vague, and indefinite to enable the defendant to know of what it is accused, of what damage the plaintiff has suffered, and to what it should direct its defense.

"(3) The declaration fails to set forth with substantial certainty the substantive facts necessary to show that the defendant has been guilty of anything forbidden or declared to be unlawful by the anti-trust act."