a storage apparatus for covering all available space within the interior of a defined circle, had no difficulty in constructing the devices of the complainant's patents, and alleged to be infringed by defendant. In determining whether or not inventive skill, as contrasted with mere mechanical or engineering skill, has been displayed, we are to consider the art in which the work in question was done, the state of that art, and the results attained. Here we have no new result. Coal had been stored before, and just as well, and from a central point; but, it is said, not over so great an area. Possibly true. But all that was required was to make the elevated and pivotal part of the tower carrying the swinging arm describe a complete circle or make a complete revolution and the work was done the end attained.

In Atlantic Works v. Brady, 107 U. S. 192, at pages 199, 200, 2 Sup. Ct. 225, at page 231, 27 L. Ed. 438, Mr. Justice Bradley said: "The process of development in manufactures creates a constant demand for new appliances, which the skill of ordinary head workmen and engineers is generally adequate to devise, and which, indeed, are the natural and proper outgrowth of such development. Each step forward prepares the way for the next, and each is usually taken by spontaneous trials and attempts in a hundred different places. To grant to a single party a monopoly of every slight advance made, except where the exercise of invention, somewhat above ordinary mechanical or engineering skill, is distinctly shown, is unjust in principle, and injurious in its consequences."

In Pickering v. McCullough, 104 U. S. 310, 26 L. Ed. 749, it was held:

"A combination of old elements is not patentable unless they all so enter into it as that each qualifies every other. It must either form a new machine of distinct character and function, or produce a result which is not the mere aggregate of separate contributions, but is due to the joint and co-operating action of all the elements."

In the patents in suit we do not have a new machine of distinct character and functions. A pit under an open centered tower receives and holds coal. A fixed structure holds up a movable structure turning thereon. This, in its turn, supports an elevating and carrying device set in motion by a steam engine or some other power. The result is, coal or some other material is taken by the lifting and carrying device from one point to another. The two structures hold up the device that carries the coal. How is the element of the railroad track qualified in any degree by either of the other elements, saying nothing of all of them? How is the element of the track qualified by the revolving truss structure? How is the element of the pit qualified by the leg supporting the outer end of the swinging arm or truss? How do these coact?

In Pickering v. McCullough, supra, the court (pages 317, 318, of 104 U. S. [26 L. Ed. 749]) said:

"We are clearly of opinion that this is not patentable. It comes plainly within the rule, as stated by Mr. Justice Strong in Hailes v. Van Wormer, 20 Wall. 353, 368, 22 L. Ed. 241, where he said: 'All the devices of which the alleged combination is made are confessedly old. No claim is made for any one of them singly, as an independent invention. It must be conceded that a new combination, if it produces new and useful results, is patentable, though all the constituents of the combination were well known and in com

mon use before the combination was made. But the result must be a product of the combination, and not a mere aggregate of several results, each the complete product of one of the combined elements. Combined results are not necessarily a novel result, nor are they an old result obtained in a new and improved manner. Merely bringing old devices into juxtaposition, and there allowing each to work out its own effect, without the production of something novel, is not invention.' "The combination, to be patenable,' said Mr. Justice Hunt, in Reckendorfer v. Faber, 92 U. S. 347, 357, 23 L. Ed. 719, 'must produce a different force or effect or result in the combined forces or processes from that given by their separate parts. There must be a new result produced by their union. If not so, it is only an aggregation of separate elements.'"

In Hailes v. Van Wormer, 20 Wall. 353, the court, at page 368 (22 L. Ed. 241), said:

"It must be conceded that a new combination, if it produces new and useful results, is patentable, though all the constituents of the combination were well known and in common use before the combination was made. But the results must be a product of the combination, and not a mere aggregate of several results, each the complete product of one of the combined elements. Combined results are not necessarily a novel result, nor are they an old result obtained in a new and improved manner. Merely bringing old devices into juxtaposition, and there allowing each to work out its own effect without the production of something novel, is not invention. No one, by bringing together several old devices without producing a new and useful result, the joint product of the elements of the combination, and something more than an aggregate of old results, can acquire a right to prevent others from using the same devices, either singly or in other combinations, or, even if a new and useful result is obtained, can prevent others from using some of the devices, omitting others, in combination."

In the lead pencil case of Reckendorfer v. Faber, 92 U. S. 347, 23 L. Ed. 719, there was a combination of ordinary lead pencil for writing or figuring and of rubber for erasing the marks or letters made by the pencil. The writer desires to write and have his writing and figures correct when completed. As a part of this whole process he uses this pencil; lead at one end, erasing rubber at the other, the wood attached to and supporting the rubber. Held no invention in putting the lead and rubber into the wood in this combination. The wood held both the other elements in position, and all formed one instrument, but the pencil performed its old function of making marks on the paper, and the rubber its old function of erasing the marks. They did not coact, perform any joint function; the one element in no way qualified the other.

In Brinkerhoff v. Aloe, 146 U. S. 515, at page 516, 13 Sup. Ct. 221, at page 224, 36 L. Ed. 1068, the rule is clearly and concisely stated thus:

"To sustain a patent on a combination of old devices it is well settled that a new result must be obtained which is due to the joint and co-operating action of all the old elements. Either this must be accomplished, or a new machine of distinct character and function must be constructed. Pickering v. McCullough, 104 U. S. 310, 26 L. Ed. 749; Hailes v. Van Wormer, 20 Wall. 353, 22 L. Ed. 241; Tack Co. v. Manufacturing Co. (C. C.) 3 Fed. 26, 9 Bissell, 258; Wringing Machine Co. v. Young, 14 Blatchf. 46, Fed. Cas. No. 9,508. If several old devices are so put together as to produce even a better machine 'or instrument than was formerly in use, but each of the old devices does what it had formerly done in the instrument or machine from which it was borrowed and in the old way, without uniting with other old devices to perform any joint function, it seems that the combination is not patentabie."

In Richards v. Chase Elevator Co., 158 U. S. 299, 15 Sup. Ct. 831, 39 L. Ed. 991, the patent was for a device for taking grain from one car to another and weighing it during the process of transfer. There was a building with a grain elevator, two railroad tracks entering this building, and such arrangements that the grain within a car on one track was discharged into the foot of an elevator, and taken thence to a hopper, where it was weighed, and then forwarded through a discharge pipe into a car on the other track. The elements of this combination were all old. The court, at page 302 of 158 U. S., page 833 of 15 Sup. Ct. (39 L. Ed. 991), said:

"It is not claimed that there is any novelty in any one of the elements of the above combination. They are all perfectly well known, and, if not known in the combination described, they are known in combinations so analogous that the court is at liberty to judge for itself whether there be any invention in using them in the exact combination claimed. We do not feel compelled to shut our eyes to a fact so well known as that elevators have for many years been used for transferring grain from railway cars to vessels lying alongside, and that this method involves the use of a railway track entering a fixed or stationary building, an elevator apparatus, elevator hopper scales for weighing the grain, and a discharge spout for discharging the grain into the vessel. There is certainly no novelty in using two railway tracks instead of one, or in discharging the grain into a second car instead of a storage bin or a vessel. Unless the combination accomplishes some new result, the mere multiplicity of elements does not make it patentable. So long as each element performs some old and well-known function, the result is not a patentable combination, but an aggregation of elements. Indeed, the multiplicity of elements may go on indefinitely without creating a patentable combination, unless by their collocation a new result be produced. Thus nothing would have been added to the legal aspect of the combination in question by introducing as new elements the car from which the transfer was made, the engine that drew such car, the steam shovel, the engine that operated the shovel and the elevator, as well as the locomotive which drew the loaded car from the building, though these are all indispensable features; since each of them is an old and well-known device, and performs a well-understood duty."

This quotation, just given, is quite pertinent as applied to the claims of the second patent adding as elements the railroad tracks and pit. Many other cases might be cited and quoted from, all to the same effect, but it would add nothing to what has been said. In Palmer v. Corning, 156 U. S. 342, at pages 345, 346, 15 Sup. Ct. 381, at page 382, 39 L. Ed. 445, the court cites and quotes with approval from Hailes v. Van Wormer, 20 Wall. 353, 368, 22 L, Ed. 241; Reckendorfer v. Faber, 92 U. S. 347, 357, 23 L. Ed. 719; Pickering v. McCullough, 104 U. S. 310, 318, 26 L. Ed. 749; and Thatcher Heating Co. v. Burtis, 121 U. S. 286, 294, 7 Sup. Ct. 1034, 30 L. Ed. 942. Those cases remain unshaken.

If the letters patent in suit last granted are not void because they are for the same invention described and claimed in those in suit first granted-of which I have little doubt-they are void for want of novelty and patentable invention in view of the prior art and because for a mere aggregation of old elements. For the same reasons letters patent in suit first granted are also void.

The defendant is entitled to a decree dismissing the complaint, with costs.

YORK COUNTY SAV. BANK v. ABBOT.

(Circuit Court, D. Maine. July 31, 1905.)
No. 542.

1. JURISDICTION OF FEDERAL COURTS-LOCAL SUITS-APPEARANCE OF DEfend

ANT.

Where, in a suit in a Circuit Court of the United States against a nonresident defendant, in which jurisdiction is sought to be maintained under section 8 of Act March 3, 1875, c. 137, 18 Stat. 472 [U. S. Comp. St. 1901, p. 513], providing for local suits, no service is obtained on the defendant within the jurisdiction, it is settled that the entry of an appearance by such defendant "specially and solely for the purpose of objecting to the jurisdiction of the court," and the filing of a motion to dismiss, and, on its being overruled, of a demurrer, do not amount to a general appearance to give the court jurisdiction over the person of the defendant.

2. SAME-NATURE OF RELEF SOUGHT-INABILITY TO ENFORCE POSSIBLE DECREE. A suit in equity by a lessee against a nonresident lessor to enforce alleged rights under the terms of the lease by requiring the defendant to elect either to sell the land to, or to buy the building thereon from, complainant at an appraised value, or to have the court make such election and carry the same into effect through a master or trustee appointed for the purpose, is not within the jurisdiction of the Circuit Court of the United States for the district in which the property is situated, by virtue of section 8 of Act March 3, 1875, c. 137, 18 Stat. 472 [U. S. Comp. St. 1901, p. 513], where the defendant has not appeared.

In Equity. On demurrer to bill.

See 131 Fed. 980.

Eben Winthrop Freeman and Enoch W. Foster, for complainant. Brandeis, Dunbar & Nutter, and Bird & Bradley, for respondent.

PUTNAM, Circuit Judge. This bill in equity was brought by a corporation organized under the laws of Maine, now holding the title and possession of the original lessee under the lease hereinafter set out. Martha T. Abbot is a citizen of Massachusetts, domiciled in that state, and is the sole person named in the bill against whom either relief or process is prayed. No personal service has ever been made on her within the jurisdiction of this court, and jurisdiction is sought to be maintained solely under section 738 of the Revised Statutes, as re-enacted by section 8 of the act of March 3, 1875, c. 137, 18 Stat. 472, 473 [U. S. Comp. St. 1901, p. 513]. The essential portions of section 8 are as follows:

"When in any suit, commenced in any Circuit Court of the United States, to enforce any legal or equitable lien upon, or claim to, or to remove any incumbrance or lien or cloud upon the title to real or personal property within the district where such suit is brought, one or more of the defendants therein shall not be an inhabitant of, or found within, the said district, or shall not voluntarily appear thereto, it shall be lawful for the court to make an order directing such absent defendant or defendants to appear, plead, answer, or demur, by a day certain to be designated, which order shall be served on such absent defendant or defendants, if practicable, wherever found, and also upon the person or persons in possession or charge of said property, if any there be: or where such personal service upon such absent defendant or defendants is not practicable, such order shall be published in such manner as the court may direct, not less than once a week for six consecutive weeks; and in case such absent defendant shall not appear, plead, answer, or demur within the time

so limited, or within some further time, to be allowed by the court, in its discretion, and upon proof of the service or publication of said order, and of the performance of the directions contained in the same, it shall be lawful for the court to entertain jurisdiction, and proceed to the hearing and adjudication of such suit in the same manner as if such absent defendant had been served with process within the said district; but said adjudication shall, as regards said absent defendant or defendants without appearance, affect only the property which shall have been the subject of the suit and under the jurisdiction of the court therein, within such district."

This same cause was before us on a motion to dismiss the bill, which motion was disposed of in accordance with the opinion passed down on August 18, 1904. York County Sav. Bank v. Abbot (C. C.) 131 Fed. 980. The basis of that motion as shown in the opinion related mainly, if not entirely, to the merits of the case. The points made were that there was no obligation binding on Martha T. Abbot; that this court had no jurisdiction unless there was an obligation enforceable against the land; that, if there was an obligation, it was not one enforceable against the land; and that, if there was an obligation in any respect enforceable against the land, it was not enforceable in this court. In disposing of that motion we observed that, whatever disposition might then be apprehended, we were confident some form of relief would be found, although it was not then prudent to forecast its particular character, nor could we then do so with certainty. It is important to understand and explain the position thus assumed on the previous hearing.

After the motion to dismiss was disposed of, Martha T. Abbot filed a general demurrer. On that demurrer new propositions bearing on the question of jurisdiction have been specifically brought to our attention and urged upon us. Among the rest is that we have no jurisdiction to enforce a personal contract, so that, if Martha T. Abbot should see fit to declare an election to purchase when the complainant calls upon her to act, we would be powerless to enforce any obligation in that direction. It is to be regretted that in this way the order of this case has been in a certain sense reversed, and that, on the motion to dismiss, propositions relating to the merits were called to our attention, while this proposition, which bears directly and solely on the question of jurisdiction, was delayed until brought here on demurrer. We must add, however, that in one way there may be an advantage arising from this fact, because the proposition now urged upon us might not have been fairly understood by us until we were forced to give attention to the merits of the controversy and to the actual detailed relations of the parties. with reference to the terms of the lease.

The complainant has relied on the fact that we have heretofore refused to dismiss the bill for want of jurisdiction, and especially on some observations made in our former opinion in reference thereto; but it is the duty of this court always to take under consideration questions of jurisdiction, and to dismiss a suit at any stage of the proceeding when it is apparent that it is coram non judice. In addition to that, we may well observe that it would be a misfortune if we take jurisdiction, involving apparently protracted and costly. litigation, all to prove of no avail in the end for want of authority