The pressure, it is stated in the testimony, between the ball and its socket may, in the operation of such a machine, easily exceed 100,000 pounds to the square inch. The large stones are first caught between the upper portion of the flaring concave B in the figure and the crusherhead C. The crushing movement of the crusher-head is imparted by the gyration of the lower end of the shaft. This crushing movement is at the upper portion of the crusher-head very slight in extent. An abrasion, wear, or enlargement of one-fortieth of an inch in the surface of the socket and a like amount on the ball would, as is testified, reduce the usefulness of a No. 6 machine by one-half. In theory the structure of the patent would seem to be, and, in fact, as shown by the testimony, it is, in a high degree useful as giving permanent efficiency to the machine. The conception of the patent was to distribute the pressure and give it such direction that the bearingsurfaces would during the operation of the machine retain their consistency and integrity, while holding the upper end of the shaft so that the crushing angle is preserved. The difference in result between the efficiency of the ball-and-socket machine and that of the patent is one of degree; but the difference in structure, as already described, is a difference in kind-a difference in the application and play of mechanical forces. The claim in controversy is in words following: A gyrating crusher-shaft having the tapering journal c, in combination with a journal-bearing, whereby only a portion of said tapering journal stands parallel and in contact with the vertical surface of said bearing during the gyration of the shaft, substantially as described. Counsel argue that this combination is unpatentable because it expresses merely the law of the machine, meaning that if the lower end of the shaft is to gyrate and the upper end to be a journal that journal must have a bearing which will permit the gyratory motion. But is not its mode of operation the law of every combination? Prior to this construction, as said, the upper end of the gyrating shaft was a ball and its bearing was a socket. The new idea in connection with the gyratory crusher-shaft was the journal with the long vertical contact or pressure in each and every position against the journal-bearing, and this to overcome a specific difficulty with which the conception of journals and journal-bearings as distinguished from balls with socketbearings had not before been associated. The distribution of the pressure along the vertical line from bottom to top of the journal-bearing, said line of contact being exactly parallel in oue form and in another, but slightly inclined to the axis of the shaft, is functional in this device to avoid or retard disintegration of the contacting surfaces. The words— whereby only a portion of said tapering journal stands parallel and in contact with the vertical surface of said bearing during the gyration of the shaft, substantially as described indicate this function. I do not find the combination of claim 1 in the prior art. Certainly no use at all analogous is shown, nor is anything shown which would seem to involve the specific function and purpose of the combination as already explained. The defendant used the cylindrical journal with the conical journalbearing. The specification of the patent contains the statement: The taper which is imparted to the journal of the gyrating crusher-shaft may be imparted to the bearing-surface of the journal-bearing, while a cylindrical instead of a tapering form may be imparted to the journal. With this change in construction the operation and result of my invention will be substantially the same as with the special construction described and shown. While "the tapering journal c, in combination with a journal-bearing," is the language of the claim, yet obviously the cylindrical journal in combination with a tapering journal-bearing would be the same thing. It seems to me if the claim be valid the infringement is made out. Must I dismiss this bill because in a suit against other defendants (Gates Iron Works v. Birmingham Cement and Mfg. Co. et al., decided by the Court of Appeals April 28, 1896) pending in the Fifth Circuit while this suit has been pending here this patent was not sustained? The question whether or not a claim is invalid for want of novelty or utility depends on the evidence in the particular case. Counsel concede that the evidence here is not the same as that in the case in the fifth circuit. I think upon the showing in this record a decree should go in favor of complainant. [U.S. Circuit Court-Eastern Division of the Eastern Judicial District of Missouri.] 1. MONOPOLY-INJUNCTION. Decided May 22, 1897. 79 O. G., 2017. The monopoly under a patent does not commence until the patent issues. An inventor has no right to injunctive relief while his application for a patent is pending in the Patent Office. 2. PROOF OF INFRINGEMENT. The fact that a defendant made and sold a patented article before the patent issued does not prove or tend to prove infringement. 3. EVIDENCE. The fact that a defendant was using an article four or six months before a patent on the article issued, and the further fact that the defendant did not respond to a notice advising him of the issue of the patent, is not sufficient to prove infringement or an intent to infringe. 4. PRESUMPTIVE EVIDENCE. It is not presumptive evidence of infringement when a defendant offers no proof in support of his answer of intention not to infringe. The burden of showing infringement rests on complainant, and the law and well-settled practice forbids this burden being shifted upon the defendant. Mr. Francis Rawle for the complainant. Mr. Geo. H. Knight for the defendants. ADAMS, J.: The bill charges that the complainant is the owner of several Letters Patent of the United States numbered, respectively, 373,639, dated November 22, 1887; 418,438, dated December 31, 1889; 425,653, dated April 15, 1890; 428,068, dated May 20, 1890, and 430,418, dated June 17, 1890, all for certain new and useful improvements in car-trucks, railway-cars, and motor-trucks for cars, and that the defendants had prior to the institution of this suit infringed the same by the conjoint use thereof in manufacturing cars and also by selling cars so manufactured. The bill further charges that the defendants give out and threaten that they will continue such infringement. On these alleged facts the complainant prays for an accounting and perpetual injunction restraining such threatened infringement. The defendants' answer puts in issue the validity of the patents and the alleged infringement thereof by the defendants. At the hearing the complainant withdrew from the consideration of the court the patents aforesaid numbered 373,639 and 418,438 and disavowed any right of recovery thereon. The case, therefore, stands submitted to the court on patents numbered 425,653, 428,068, and 430,418. These three patents, as already seen, are dated, respectively, April 15, May 20, and June 17, 1890. Much proof was taken bearing on the issue of patentable invention, and the same has been critically and ably analyzed and presented in argument; but, inasmuch as I am not able to find satisfactory proof of infringement, I do not consider it advisable to state my conclusions on this issue. The bill was filed August 15, 1890, four months after the date of the oldest patent and less than two months after the date of the youngest patent in suit. Complainant's counsel does not claim to have shown by direct proof any acts of infringement occurring after the date of any of the patents, but strenuously contends that the court should indulge such presumption and draw such inferences from acts done by the defendant four and six months before the dates of the patents as will establish an intention on the part of the defendants to infringe subsequent to such dates. On the assumption that complainant's patents are valid his monopoly under any of them commenced with their respective dates. An inventor has no exclusive right to his invention at common law, but derives all such exclusive right from the grant of the Government, subject to the provisions of the statutes conferring the right. These statutes (section 4884) limit the monopoly to the term of seventeen years from the date of the grant as evidenced by the patent. Mauifestly, therefore, there can be no invasion of the patentee's rights by any manufacture or use of the device the subject-matter of the expected patent prior to the date of the patent. On this subject Chief Justice Taney, in the case of Gayler v. Wilder (10 How., 477) observes as follows: The inventor of a new and useful improvement certainly has no exclusive right to it until he obtains a patent. The right is created by the patent and no suit can be maintained by the inventor against any one for using it before the patent is issued. The inchoate right existing in an inventor after making an application for a patent and while the same is undergoing an examination in the Patent Office does not entitle him to injunctive relief against an infringer of such right. (Rein v. Clayton et al., 37 Fed. Rep., 354; Lyon v. Donaldson, 34 Fed. Rep., 789.) From the foregoing it must follow that any acts done by defendants, either in the way of accomplished use of complainant's invention or of threats to make use of the same prior to April 15, 1890, the date of complainant's oldest patent, cannot in and of themselves be any such evidence of infringement as to entitle complainant to a decree in this case. If, however, such use or threats to make use of such invention are of such character as to fairly justify the inference that defendants intended to continue the use thereof after patents should be issued to complainant, then complainant is entitled to a decree enjoining the defendants from carrying out their threats. An examination of the proof on this subject is therefore necessary. The application for Patent No. 425,653 was filed June 25, 1888, for Patent No. 428,068 was filed March 15, 1888, and for Patent No. 430,418 was filed October 2, 1888. The patentee made a brass model consisting of trucks and wheels embodying the invention of these patents and exhibited it at a convention of the American Railway Association at Washington, D. C., in October, 1888. Defendant Kling, who is also the president of the defendant corporation, was present at the convention and had an opportunity of seeing this model there. In April, 1889, the Sprague Electric Company purchased of complainant a full-sized truck embodying the inventions of these patents and shipped it to the defendant corporation, which received it on April 29, 1889. The defendant soon after this constructed nine closed cars with trucks like those received from the Sprague Electric Company, embodying the complainant's device, for the Wyatt Park Railway Company at St. Joseph, Mo., and shipped them to the last-named company in the following month of August. The proof further shows that while complainant Brill was on the stand on June 26, 1891, the following questions were put to him and the following answers made by him, namely: Question. Please look at the brass model which I show you and state what it is and how it is connected with the defendants in this case. (Said brass model is offered in evidence marked "Complainant's Exhibit, Truck Model No. 4.") Answer. The brass model is the model of our truck No. 4, as we call it in our business; and it is practically an exact copy of a truck that the St. Louis Car Company have been furnishing to different parties and the same I have seen in St. Louis and other places. Q. State when you saw trucks manufactured by defendants in St. Louis and where and what you saw. A. I first saw them in December of 1889 on cars operated by the Lindell Railway Company of St. Louis. Q. Did you examine these cars carefully at the time?-A. I did. In fact, the trucks on them are so much like our trucks that when I first saw them I thought it was one of our make and it was only upon the closest examination that I discovered that it was made by the St. Louis Car Company. It is exactly like our truck with the exception of one small detail. Q. Had you previously shipped any car-trucks similar to the one you speak of to the defendants, and when?-A. Several, during 1889, were sent to the defendants' shop to be placed on car-bodies that they were building. The proof further shows that while defendant Kling was on the stand on November 17, 1891, the following questions were put to him and the following answers made by him thereto, namely: Q. Did your company build the motor-cars for the Lindell road in this city I—A. Yes, they did. Q. And I understand that your company is sued by Brill in this case for building those cars?-A. Yes. Q. Please state whether or not in the cars made for the Lindell Railroad Company for which you are sued in this cause there is a bar corresponding to the bar c of complainant's patent, No. 430,418.-A. No, sir; it is not used. Q. Does it (referring to a drawing exhibited to the witness) or not represent the truck made for the Lindell Railroad by your company and for which you are sued by Mr. Brill-A. It does. In addition to the foregoing testimony of the witnesses relied upon by complainant's counsel as proving infringement by defendants attention is called to the language of defendants' counsel in offering Kling as a witness, as follows: Counsel for defendant states that at this time he desires to call Mr. Kling to testify to the exact construction of the truck-frames built for which the complainant brings action, before Mr. Smith proceeds any further with his testimony. On this issue of information complainant's counsel calls attention also to a letter written to defendant corporation of date January 6, 1890, which is as follows: PHILADELPHIA, Jany. 6, 1890. The St. Louis Car Company, P. M. Kling, Esq., Manager, St. Louis, Mo. DEAR SIR: Your favor of the 3d to hand and contents noted carefully. Our recourse in the case of an infringement is against the railroad company operating the patented device, and they are the people against whom we open suit, and usually their suit is defended by the party furnishing said patented device. From a legal point it is our place to warn the parties against whom we propose to enter suit. As we said in ours of the 12/26/89, we practically control the patented independent rigid trucks for electric-motor cars, and it is a question of but a short time when we will assert our rights, in which case it is necessary for us to proceed against manufacturer and user. Yours truly, JAMES RAWLE, Secy. |