adulterate the beverage sold as Coca-Cola without any right in the appellant to prevent it.

The greatest value of a trade-mark is the reputation established by the excellence of the article, and the knowledge and appreciation of that fact by the consuming public. An article without any merit can derive no benefit from a trade-mark, and only a temporary benefit from the most extensive advertisement. It is like the value of a "good will" in an established going concern. It depends upon the successful operation of the business. Without that there is no value to it. Who would pay for the good will of a business conducted at a loss? (Coca-Cola Co. v. Butler & Sons, supra.)

The cases of Russia Cement Co. v. Frauenhar (133 Fed. Rep., 518; 66 C. C. A., 500) and Apollinaris Co. v. Scherer, (C. C., 27 Fed. Rep., 18) are cited as sustaining the position of counsel for defendants; but an examination of these cases shows that in the Cement Case the same cement without any addition or subtraction was resold under the trade-mark name. If the defendants in this case had simply resold the syrup, it would be within the reasoning of the case cited; but they did not do that. They changed the syrup into a beverage, and they say that they changed it in the same manner that the appellant authorized other persons to do. But the trouble with this argument is that it destroys appellant's exclusive right to its trademark, and the resulting right to say who may use it. In the Apollinaris Case the same water, without subtraction or addition, was sold under its true name. Without prolonging the discussion further, we do not think the defendants have the right to manufacture and sell Coca-Cola under the trade-mark name of appellant without its consent.

(3) Counsel for defendants further urge that the contracts which appellant has made with the Tennessee corporations, and which the Tennessee corporations have made with appellant's consent with local persons and corporations, are in violation of the Sherman law. The trial court seems to have based its ruling in dismissing the complaint partly upon this proposition, it appearing to that court that this suit was one to enforce these contracts. We do not think the validity of the contracts are in any wise brought into question on this record. The appellant simply claims that the defendants have no right to manufacture and sell Coca-Cola under appellant's trademark without its consent, and our decision in this case goes no further than to hold that the claim of appellant is well founded. We do not decide that the whole or any part of the contracts made by appellant with the bottling companies are valid. The granting of the consent of appellant to the defendants to manufacture and sell the product Coca-Cola under its trade-mark could be manifested without the contracts mentioned in the evidence. It will be time enough to decide as to the validity of the contracts when a suit arises

in which their validity is involved, and when some person is sued who has a contract. Manifestly, if the consent and authority of appellant is necessary in order to manufacture and sell Coca-Cola under its trade-mark, then appellant has the right to impose any such reasonable condition to the granting of such consent as will protect the integrity of the trade-mark.

It results from what we have said that the judgment dismissing the complaint should be reversed, and the case remanded, with instructions to the trial court to grant the injunction prayed for.

The question of damages was not considered in the lower court, and that question will be left open to be dealt with as law and justice may require.

ADAMS, Circuit Judge, concurred in the decision of this case, but deceased before the opinion was prepared.

[U. S. Circuit Court of Appeals-Sixth Circuit.]

CLIPPER BELT LACER Co. v. E-W. Co. et al.

Decided November 14, 1916.

239 O. G., 323; 237 Fed. Rep., 602.

1. PATENTS-CONSTRUCTION-MEANING OF TERMS USED" INTEGRAL." The word "integral as used in a patent claim in describing two parts of a device as integral is not necessarily used in its narrowest sense as meaning that they are structurally integral and constitute a single piece; but it may mean that they are permanently held together and are operatively or functionally integral.

2. SAME VALIDITY AND INFRINGEMENT-BELT-STAPLING TOOL.

The Mitchell and Gunn patent, No. 806,556, for a belt-stapling tool, claim 1 construed and in the light of the proceedings in the Patent Office, which indicate its scope, Held infringed.

3. SAME CONSTRUCTION-MEANING OF WORDS USED.

The meaning of a word as used in patent claims may vary with the context and with the circumstances.

In comparing the rule that a claim limitation must be given effect and the rule that the use of an equivalent does not escape infringement the question is how far the patentee intended to restrict the range of equivalents.

APPEAL from the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, judge.

SUIT in equity by the Clipper Belt Lacer Company against the E-W Company and others. Decree for defendants, and complainant appeals. Reversed.

STATEMENT OF THE CASE.

The appellant brought suit below, alleging infringement of Patent No. 806,556, dated December 5, 1905, issued to Mitchell and Gunn, for a belt-stapling tool. The first claim of the patent is:

A tool or appliance for the purposes referred to, comprising a bracket formed with a stepped portion integral with the bracket, and having a series of slits formed in it adapted to receive jointing staples, and also having a hole formed transversely through the intermediate portions of the bracket between the slits, and a pin adapted to be passed through said hole substantially as and for the purposes described.

Illustrations prepared by complainant, showing the patent in suit and the defendants' goods, are here reproduced.

In the patented device, the part a is shown as a base or anvil, evidently intended to rest upon any suitable support. Part of this plate is thicker than the remainder, leaving a square flange or shoulder, as shown. The upper face of the anvil therefore may be said to be stepped. In the raised portion are cut, side by side, a series of slots indicated by d. The portions not cut away remain to form partition walls between the slots. Transversely through these walls are bored holes indicated by g and g'. When the device is used, prepared staples of the form shown by e have their closed ends inserted in these slots with their bottoms resting on the stepped down part of the anvil. In this way, a series or gang of these staples is held upright and in position to have a belt end inserted between the prongs. When the series of staples has been so placed, a pin is inserted laterally through the series of holes, g, holding the staples against backward motion, and another pin through the series of holes, g', holding them against forward motion. Then, after the belt end is in position, a suitable pressure or blow from above drives both prongs of the staple into the belt from above and from below and leaves the bend of the staple projecting free from the belt end. Another belt end having been similarly treated and each being thus provided with a series of projecting loops, these loops on the respective ends are overlaid and a pin passed through all of them, whereby the two ends become fastened together with a pivoted joint.

Defendants use pivoted jaws, both upper and lower jaws having the face portion pivoted so as to permit slight rocking and insure parallelism in the final pressure in spite of some variation of the belt thickness. Pivoted to the lower jaw-or, rather, carried by the same pivot which carries both jaws-is a forwardly projecting block practically rectangular and marked d, the front portion of which is provided with a series of vertical slots having partition walls left between them and pierced transversely by a hole for the reception of the provided pin, g'. This block may swing slightly up and down, and it results that when a larger size of staple is used, the bending point of which should be a little higher from the lower jaw, this block and the pin which it carries may rise somewhat, and there comes a feature of adjustability, not found in the patent.

The district court thought the patent was not infringed and this appeal was taken.

Mr. Cyrus W. Rice and Mr. Luther V. Moulton for the appellant. (Mr. Lewis E. Flanders of counsel.)

Mr. W. J. Belknap for the appellee.

Before WARRINGTON and DENISON, Circuit Judges, and SATER, District Judge.

DENISON, Cir. J., (after stating the facts as above:)

The patented device is very simple. If only one staple is considered the device is seen to be a mere driving-guide of suitable shape, and its patentability would be, at least, doubtful; but the invention consists in providing a series of these, side by side, so that several staples can be driven at once and will be held and driven in that precise position necessary to bring all the extended loops in lateral alinement so that when the two belt ends are united and a pivot-pin inserted, every loop will bear on the pin. This might have been done by inserting in the slots and from the front a gang of formers all moving into position simultaneously and over which the staples could have been bent, but the insertion and withdrawing of such formers would have been difficult. Perhaps other means could be devised, but the idea of accomplishing this by a laterally-sliding pin, easily inserted after the staples were in place, and easily withdrawn after the staples were driven, was entirely new with the patentees and seems to have been a happy-thought solution. So far as this record indicates, no pins or other resisting means had ever been placed in the inner bend of the partly-formed staple to serve during the remainder of the forming and during all the driving process, first as a forminganvil, and then as a holding means, and there had never been any device for holding, alining, forming, and driving a series of staples

of this class. We know nothing about the earlier clamping-tools to which the patent refers; they may well have been for a single staple. The use of a pin inserted laterally through a series of apertures was known in a device for weaving a continuous wire belt-lacing, which, after manufacture, was removed from the forming device and fastened to the belt end by some independent means. This hardly even suggested the use of a pin with a series of separate staples during the driving process.

This case is an appropriate one for giving some force to public use in determining whether the new step taken by the patentees was so simple and obvious that it cannot be called patentable invention. Fastening belt ends together by staples of this kind was known, but there was no tool of this class for doing the work. The patent was followed by a considerable sale, in the exact patented form, and if the invention was of the scope we have supposed, it is embodied in the later forms, which had a very large sale. We conclude that Mitchell and Gunn were entitled to a patent covering the use of this retaining-pin in this situation, whereby the series of otherwise independent slots were united into one combination for the purpose and with the result of getting perfect alinement; and the patent which they secured is entitled, so far as the language of its claim will permit, to a range of equivalents accomplishing this measure of monopoly.

The dissimilarity which we observe when such a plate or base as the patent shows is compared with a pair of pivoted jaws is only superficial. Not only is the lower or anvil member of a pair of jaws the plain equivalent of a separate plate having the same resisting and forming functions; but this very pivoted-jaw construction was proposed by the patentees as one form of using their invention. When they filed their application, they said that the necessary closing of the staples could be accomplished by hammering from above, or by applying a suitable pressure-plate, or by uniting their forming-plate with such a pressure-plate in the form of pivoted jaws; they say the separate base plate, used alone, is the "simplest form" of their invention. Although they struck out this part of the description in supposed compliance with Patent Office objections, the original application serves to illustrate that the equivalency of a pivoted upper jaw and other means for pressing the staples home was apparent then as now.

(1) It is plain, also, that the defendants have adopted the substance of the invention, as above analyzed. We come, therefore, to the question whether, when we have invention of considerable merit, and adoption by the defendant of everything that was patentably new therein, the language of the claim has been so limited that the