Mr. Chas. E. Mitchell and Mr. Benj. F. Thurston for complainants. Mr. Charles F. Blake and Mr. John S. Beach for defendants.

SHIPMAN, J.:

This is a bill in equity, founded upon the alleged infringement by the defendants of reissued letters patent, dated May 13, 1873, and granted to the plaintiffs, as assignees of Horace K. Jones, for improvements in machinery for graduating carpenters' squares. The original patent to the plaintiffs, then known as "The Hart Manufacturing Company," was dated August 10, 1869.

The following were alleged to be the peculiar features of the invention: First. The cutting of the graduation marks or lines commenced at the measuring-edge, and from thence extended inward, instead of commencing at or near the center of the square, whereby a clear and not a ragged cut was made at the measuring-edge, and danger of deviation from the proper point at the edge was avoided. This peculiarity had been anticipated by the invention of Heman Whipple, which was patented March 17, 1857.

Second. The length of the lines graved were regulated by arresting the cutting action of the graver when in motion, and allowing it to continue its forward movement without cutting the square, making what is called a "flying cut." This peculiarity is thus further described in the specification:

The gravers

#

*

are operated in such manner by means of cams and springs, that the said gravers can be alternately thrown into and out of action during their stroke, and remain in action for a predetermined period of time to cut graduation-marks of varying lengths.

The advantages of this mode of operation are that the lines are made of uniform depths, and that the inner end of the mark terminates. abruptly, and that the chip is lifted from the line by the onward movement of the graver.

Third. The tool rests in the holder in a groove of the exact inclination of its sides, into which it fits, and is pressed into its position by a setThis insures the tool always being reinserted in the same position when removed from the machine for sharpening.

screw.

Fourth. A new clamping device is used which holds firmly squares of varying tapers. The device is thus described in the specification:

P is a fixed jaw for holding the square to be graduated. This jaw is rigidly secured to the frame of the machine so that its under face is parallel to the axis of the shaft D, or, in other words, parallel to that longitudinal line upon which the points of the series of gravers act. M is the movable jaw of the vice, which is held in place by screws passing through slots in the jaw M into the frame, so that said jaw is free to play up and down at either or both ends; and it is pressed up against the fixed jaw P (or against any object placed between said jaws) by means of the cam N, operated by the treadle O to bear upon the jaw M near the middle of its length.

The gravers of plaintiffs' machine are arranged in sets, mounted on horizontal bars supported by two vertical revolving disks. There is a separate graver and separate tool-holder for each mark, so that to grad

uate a square twenty-four inches long to sixteenths of an inch three hundred and twenty-three gravers and tool-holders are required. One machine of this kind was in use at the factory of the plaintiffs for about eighteen months. During this time, Charles S. Bement, a workman in their employ, undertook to make, and did make, for them an improved machine which had but one graver and one tool-holder, and in which the square passed under the tool by means of an intermittent feed. A patent for this machine, which the deponents are now using, was granted to Mr. Bement on June 14, 1870.

The plaintiffs claimed upon the trial the Bement machine infringed the 2d, 3d, 5th, and 6th claims of their patent. It is unnecessary to examine the question of infringement of the 2d claim, as it was conceded that it was anticipated by the Whipple invention. The three remaining claims are as follows:

3. The construction of the tool and socket so that the edge of the tool fits into a V-shaped recess, the angle of which is in line with the working-point of the tool, substantially as and for the purpose herein described.

5. In a machine for cutting graduations on squares, &c., the combination of the gravers I and their holders H with cams G and springs d, for throwing the gravers out of action at predetermined periods of time during the stroke of the same to cut graduation-marks of varying lengths, substantially as described.

6. The clamping device for holding squares of varying tapers to be graduated, consisting of the fixed jaw P, the rocking adjustable jaw M, and the cam N, in combination, substantially as described.

There is no question of infringement in regard to the 3d and 6th claims. The only question upon this part of the case is that of novelty. The defendants insist that the V-shaped recess of the third claim was anticipated by the patent of Millington and George, dated August 8, 1854, and by the patent of Horace K. Jones, of January 31, 1865, but in neither of these patents are the V-shaped grooves so arranged as, in the language of the plaintiffs' expert, to "take hold of the cutting-edge of the tool. They are not so arranged as to be invariably in the plane in which the tool makes its stroke." The essence of this claim is that the angle of the V is in line with the working-point of the tool. In the Millington and George patent the groove is on the upper side of the cutter, and in the Jones patent, of 1865, the tool was held by the back and one side. The result was that in these two machines the cutting edges were not necessarily placed accurately, and required frequent adjustment.

The defendants insist that the device which is mentioned in the 6th claim was anticipated by patents to Louis Filliers, dated April 16, 1861, and to Jeremy W. Bliss, dated November 30, 1852.

These were improved hand-vices, and have no relevancy to a clamp which shall uniformly hold in proper position an article to be graduated by machinery. Such a clamp must be so made that the square shall be necessarily placed in the position which is requisite to insure accuracy. In the plaintiffs' machine, the square was secured by a movable clamp from below the surface. This clamp pressed the square against a shelf,

so that the fall of the square was parallel to the plane of action of the graver.

The defendants deny both infringement of the fifth claim and its nov'elty.

The gist of the fifth claim is "the flying cut," as it is termed in the specification. This peculiarity is described in the claim to be the combination" for throwing the gravers out of action at predetermined periods of time during the stroke of the same to cut graduation-marks of varying lengths." The motion of the graver continues after cutting action has ceased.

The plaintiffs' machine contains an entire set of gravers. These revolve in a true circle, and the square remains stationary. The defendants' machine has but one graver, and the square is moved along by an intermittent feed. The graver returns to its work, after one mark has been made, in a flattened circle. The form of the two machines is necessarily very different, but the mode of operation by which the cutting of the graduating-marks is affected is the same. Each machine has a "flying cut." In each the cutting commences at the edge of the square, and the cutters are thrown out of their work during the stroke by the action of a spring and cam at a predetermined point, when cutting ceases and the forward motion of the cutters is continued. The differences in the mode of operation are formal and not substantial.

The defendants' machine is what it would naturally be from its early history. It was designed to be simply an improvement upon the plaintiffs' structure. It was made with the elder machine before the eye of the inventor. The leading features of the elder machine are retained, while a single graver was ingeniously substituted to do the work of a set of gravers.

Upon the question of novelty, the defendants rely upon the Whipple machine. It is only necessary to say that this machine does not have the flying cut. There is no progressive movement of the graver after it has ceased to cut. "The mark is terminated by arresting the forward motion of the carriage upon which the gravers are mounted." Differences of construction between the Whipple and the plaintiffs' machines are pointed out by the plaintiffs, which it is not necessary to examine. Let there be a decree for an injunction and an accounting in respect to the 3d, 5th, and 6th claims.

[United States Circuit Court-District of Connecticut.]

THE MILLER'S FALLS COMPANY v. IVES & Co., A CORPORATION.. (Two cases.)

(O. G., vol. xiv, p. 203.)

Decided March 23, 1877.

1. The scope of Reissue Letters Patent No. 4,187, granted Miller's Falls Company's as-signees, November 29, 1870 (original patent No. 35,856, J. M. Horton), for "improvement in auger-handle," defined.

2. The principle of the invention, the construction of the device by the same general mechanical means being retained by the defendants, infringement occurs, notwithstanding they may make a more perfect instrument.

3. The novelty of Letters Patent No. 73,279, granted C. H. Amidon, January 14, 1868; for "improvement in bit-stock," sustained.

4. The term "equivalents” in the claims being construed with reference to the essential characteristics of the invention set forth in the specification relieves the patent from the objection of lack of novelty. The prior devices accomplish the same result by different means, and are not "equivalents" under the limitation. 5. The patent of Amidon is not anticipated by that of Dexter M. Chamberlain, granted in 1854, for an awl-holder. The Chamberlain device is not only different in purpose, but is lacking in the peculiarities which distinguish the Amidon bit-stock. 6. A license to the defendauts to manufacture the article described in a certain patent held by them will not relieve from the charge of infringement where the device actually made differs somewhat from that set forth in the patent.

Mr. Charles E. Mitchell for plaintiff.

Mr. Benjamin F. Thurston for defendants.

SHIPMAN, J.:

These are two bills in equity, each of which is brought to restrain the defendant corporation from an alleged infringement of letters patent granted to James M. Horton on July 8, 1862, and reissued for the second time to the Miller's Falls Manufacturing Company on November 29, 1870, and also from an infringement of letters patent granted to Charles H. Amidon on the 14th day of January, 1868. Each patent is now owned by the plaintiffs. The Horton patent was for an improvement in instruments for operating tools, such as augers, bits, &c., the shanks of which are of variable sizes. The Amidon patent was for an improvement in bit-stocks. The infringement complained of in the first suit was the making and selling by the defendants of bit-braces, known in the market as the "Ives" brace and the "Ives novelty;" the second suit was brought to restrain the defendants from making the "Centennial" and the "Centennial novelty" braces, the manufacture of which last-named tools was commenced after the first suit had been brought. The two bills of complaint may be treated as substantially one action. The principal defense as against the Horton patent is non-infringement, and as against the Amidon patent is want of novelty.

The Horton device was an auger-handle provided with a metal band, called in the patent a barrel, around its center, the lower portion of which barrel is formed into a projecting cylinder or socket, recessed or slotted upon its opposite sides. The recesses receive two jaws, the ends of which are curved so as to lie loosely in the recesses and act as hinges upon which the jaws swing. Along the center axis of the cylinder there is a rectangular tapering bore, large enough to receive the shank of the boring-tool. A revolving nut, which forces the jaws together, is fitted upon the screw-threads which are cut upon the periphery of the cylindrical portion of the cylinder. When the nut is near the handle, the lower part of the jaws swing upon their hinge parts so as to receive

the shank of the tool to be used. When the nut is screwed up, the curved ends of the jaws inclose the shoulder of the auger-shank. The claims are:

1. The combination of the barrel A, provided with a socket, C, jaws B and D, and nut N, working on a screw for holding a boring-tool, substantially in the manner described and specified.

2. The socket C of the barrel A, having cavities b b, in combination with the jaws B D, having curved ends to fit therein, to allow the necessary lateral movement in the socket without falling out, substantially as described and specified.

The Amidon brace consists, as described in the patent

First, in the construction and use of two jaws, which conform to the taper of the bit-shank, and are forced equally upon said shank at both ends by a screw-nut or other device; second, in the special construction of the end of the bit-stock to hold said jaws and retain them always in place; third, in the formation of the groove in the edge of each jaw so that the shoulders of the bit-shank are inclosed, and the accidental withdrawal of the bit prevented; and, fourth, in a particular not material to the present case.

The bit-stock has at one end the ordinary swiveled head, and at the other the clamping mechanism which is the subject of the invention. The end of the stock which receives the shank, and is called the foot, is cylindrical, and has a male-screw thread cut upon its outer surface. A slot is cut vertically through the foot, and within this slot rest the jaws which seize and hold the shank. At the bottom of the slot is bored a cylindrical cavity with an enlarging orifice. A thimble or nut is constructed with a female-screw thread corresponding at its lower portion with the thread on the foot, while the upper part is protuberant and contracted toward the mouth at the upper end. This nut screws upon the foot and forces the jaws upon the shank. These jaws are in thickness suitable to fill loosely the slot. Their lower ends are attached to each other by a curved wire, which is rigidly set in one part and projects loosely through the other part. The upper and lower ends of the jaws are beveled so that they may be forced together by the inclined surfaces of the nut and the cavity at the bottom of the slot, when the nut is screwed upon the foot. In the opposing surfaces of the jaws are formed grooves, which, when the jaws are in position, form a recess of square section. This recess is made tapering, so as to correspond with the taper of the bit-shank, and is largest at the outer end, so that the shoulders of the bit-shank may be inclosed within the jaws and the removal of the bit prevented except by relaxing the pressure of the jaws. As the jaws are loosely connected at the lower ends by the wire, they may either move apart, as on a pivot at that end, or they may be moved bodily away from each other so as to accommodate a bit-shank of any size or taper.

The three claims which are material to this case are:

1. In combination with the jaws G G, or their equivalents, constructed to move away from or toward each other in the manner described, so that they may conform to the taper of the bit-shank, the screw-thimble F, or its equivalent, to force the said jaws upon said shank, as and for the purpose set forth.