is no requirement that they be overlapping or of any particular size or shape, save only that they be closed at the outer end, and open on the side toward the axis of the drum, which means nothing more than their tops shall be open. But the element of a central partition contacting with the tops of the blades is wanting in Cropp's as well as in Reed's other claims, except 2 and 11. We cannot hold that Cropp's diagonal blades, manifestly spaced apart to form pockets, and sufficiently far apart to permit material being forwarded between them, is the equivalent of the inner head of Reed's claim 1. The fact that a drum with a series of diagonal charging-blades may be revolved at a speed which will forward the material to be mixed, and while revolving prevent the mixed material from flowing back, is a result which might be accomplished with a single diagonal blade if the drum were revolved fast enough. To the extent that the inner contacting head may have utility in holding the material from overflowing the blades and running back, that element is found in the claim in interference, which is Reed's claim 1, and also in Reed's claims 2 and 11, but is not found in Reed's other claims in suit, nor in Cropp's claims 9 and 15.

It does not appear which of the Reed and Cropp original claims were deemed in the Patent Office to show the equivalent of Sanborn's claim 5, but probably it was those claims in each which described an inner head or partition, whether, as in Sanborn's claim 5, having its periphery contacting with the tops of the pocket walls, or, as in certain of the Reed and Cropp claims, with the periphery contacting with that of the drum. Claim 2 is like claim 1, save only that it shows the inner head as "centrally apertured." Claim 11 describes the blades, and an "apertured disk set in from the front end," and we find in both these claims the equivalent, variously expressed, of invention in claim 1, and therefore included in Cropp's disclaimer, and in the award to Reed of the issue in interference. But, as above indicated, we find that the others of the above enumerated claims of Reed, describing as they do an invention different from that of claim 1, were not so included or determined.

The second contention is predicated upon the general rule that— when the second suit is upon the same cause of action and between the same. parties as the first, the judgment in the former is conclusive in the latter as to every question which was or might have been presented in the first action.

Rule 109 of the rules of practice of the Patent Office, is cited to show how other claims common to any of the applicant's might be brought into the interference, and decisions of Commissioners of Patents and of the Court of Appeals of the District of Columbia are cited to show that under certain circumstances a second inter

ference will not be allowed in the Patent Office on claims which might have been included in the first. The rule provides that—

an applicant involved in an interference may, at any time within thirty days after the preliminary statements (referred to in Rule 110) of the parties have been received and approved, on motion duly made as provided by Rule 153, file an amendment to his application containing any claims which in his opinion should be made the basis of interference between himself and any of the other parties. Such motion must be accompanied by the proposed amendment, and when in proper form will be transmitted by the Examiner of Interferences to the Primary Examiner for his determination, etc.

If it be assumed that the rule has application to claims existing at the time the interference is declared, and is not limited, as its wording might indicate, to claims afterward first made by amendment, it would seem that neither the rule nor rulings apparently made under it would have application to a case such as this, where disclaimer was filed before time fixed for preliminary statements, in view of Rule 107, which is as follows:

An applicant involved in an interference may, with the written consent of the assignee, when there has been an assignment, before the date fixed for the filing of his preliminary statement (see Rule 110), in order to avoid the continuance of the interference, disclaim under his own signature, attested by two witnesses, the invention of the particular matter in issue, and upon such disclaimer and the cancelation of any claims involving such interfering matter judgment shall be rendered against him, and a copy of the disclaimer shall be embodied in and form part of his specification (see Rule 182).

This rule seems to contemplate that the disclaimer shall extend only to the particular claim or claims as to which the interference is declared. To avail of the rule the applicant must disclaim invention "of the particular matter in issue," and must cancel "any claims involving such interfering matter." By implication other claims, involving other interfering matter, remain unaffected, as though no interference had been declared.

Finding, as we do, that Reed's claim 1 does not include the invention shown by his other claims (except 2 and 11), of which infringement is charged, and concluding that these other claims, common as they were with claims of Cropp at the time the interference was declared, are not affected by the determination of the claim in interference, we must look to the evidence which the record discloses to determine whether or not the district court properly decided the question of priority as between Reed and Cropp, respecting the invention shown in these other claims of Reed, as well as in the claims of Cropp, and which are embodied in the Wahl machines, minus the inner contacting head or ring thereof.

(3) Cropp's application was filed August 8, 1908, and Reed's September 28, 1908. Cropp's patent was granted January 18, 1910, and Reed's January 10, 1911. Each has undertaken to carry back his

date of invention, but the evidence on that subject, aside from that afforded by the record in the Patent Office, is too indefinite, inconclusive, and unreliable to warrant the finding that either has shown a date of invention prior to that of the other, and the district court, which saw and heard the evidence, made fair estimate of the pro bative value of their testimony on that subject in saying in its opinion:

There is nothing worthy of attention in the testimony tending to show any date of the inventions earlier than the respective applications.

It might be said that the situation of the parties as disclosed by the record points more strongly to Cropp as the inventor. He was concerned with the devising and building of concrete-mixing machinery, and evidently satisfied Reed that he had ingenuity and ability along that line, else Reed would not have entered into the contract for financing Cropp. Until meeting Cropp, Reed had no experience with concrete machinery, save only that his company sold engines suitable to furnish power for operating mixers. Under the first contract Reed's company was to handle the mixers built and devised by Cropp, and under the second Cropp was to superintend construction, and the company was to manufacture and sell "Cropp mixers." The contracts were drawn by the company, and provided for its exclusive right, for practically the entire world, to manufacture and sell" Cropp's mixers" for the limited period of the contract, and Cropp agreed to protect it against actions for infringement in handling Cropp's "machine" or "devices." In making Cropp's "mixers," "machines," and "devices" the subject-matter of the contract, and conferring on the company exclusive rights in regard to them, the parties must have had in view something definite and distinctive, existent or prospective, as to which an exclusive grant by Cropp might mean something.

To show that Reed had mechanical and inventive genius, a number of earlier patents to him were shown in evidence, all of them in regard to improvements in weighing devices. It does not appear, however, that Cropp had any prior experience in the matter of securing patents, and such was the situation of the parties that, had Reed been so disposed, his far larger experience in such matters would have been helpful in appropriating ideas and developments of Cropp manifested before or during the existence of the contract.

At any rate, a review of the record does not satisfy the inquiring mind that the invention involved in these other claims is that of Reed rather than of Cropp, whose application was first filed and patent first granted; and compelled as we are to look to the filing dates of the respective applications as the most reliable evidence showing priority of invention, we find priority in Cropp as to any invention

shown in claims 7, 12, 13, 17, 18, 19, 20, and 21 of the patent in suit, so far as they are readable on the Wahl mixers.

We conclude that both appellees, in making and selling the Wahl mixers, incorporating the inner head or ring D, contacting with the tops of the charging blades or pockets, infringed claims 1, 2, and 11 of the Reed patent, and that as to Reed's claims 7, 12, 13, 17, 18, 19, 20, and 21, in so far as they are readable on the Wahl mixers, as between Cropp and Reed, Cropp is the first inventor of any patentable novelty therein shown.

The decree of the district court is reversed, and the cause remanded, with direction to the district court to enter a decree in accordance with the views herein expressed.

[U. S. Circuit Court of Appeals-Sixth Circuit.] AMERICAN BALL BEARING Co. v. FINCH. Decided February 16, 1917.

241 O. G., 1158; 239 Fed. Rep., 885.

1. PATENTS-VALIDITY AND INFRINGEMENT ANTIFRICTION-BEARING.

The Baker patent, No. 753,820, for an antifriction-bearing for mounting and turning the front wheels of an automobile, claim 1 Held valid and infringed.

2. SAME-INVENTION-"NEW RESULT."

An invention achieves a new result where a function which had been performed by other means was performed to an efficient degree by an association of means never before combined, though all of them were old and some of the changes seemed to be only in degree.

APPEAL from the District Court of the United States for the Northern District of Ohio; John H. Clarke, judge.

Suit by the American Ball Bearing Company against Edward B. Finch for infringement of patent. Decree for defendant, and complainant appeals.

Reversed and remanded, with instructions to enter a decree for complainant.

Mr. Livingston Gifford for the appellant.

Mr. F. P. Fish for the appellee.

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

DENISON, Cir. J.:

This suit was brought in the district court by the Ball Bearing Company for infringement of Baker Patent No. 753,820, issued March 1, 1904, upon application filed February 24, 1902, for an antifriction-bearing; and plaintiff below appeals from a decree holding

the patent void for lack of invention. The patent has to do solely with the means for mounting and turning the front or steering wheels of an automobile. According to the now familiar practice, the front axle does not turn upon a central pivot, but is rigid; and each axle end, which forms a spindle for the hub, is practically hinged to the main axle. At or adjacent to its inner end the hub-spindle carries, rigidly attached thereto, a vertical pintle, and the upper and lower ends of this pintle are pivotally mounted in brackets projected up and down from the axle, or are in some other form made to constitute a hinged joint between the axle and hub-spindle. This is known as the steering-knuckle, and from the knuckle structure an angle-arm projects horizontally and rearwardly. Obviously, pushing or pulling on this angle-arm will turn the hinged wheel one way or the other. The rear ends of the two angle-arms are operatively connected with the steering-wheel of the machine.

The three claims in suit are in the footnote,1 and, with the foregoing explanation, their meaning will be quite clear when applied to the single figure of the drawing here reproduced.

(1) The substantial question involved in the case is-invention or not? Anticipation, in the accurate use of that term, is not claimed. It is conceded, not only that each element of the claim is old, but that each element is found in earlier associations more or less analogous to those which it occupies in this patent; and the question whether more than mechanical skill was involved in that readjustment and rearrangement of the elements which Baker first made is close and difficult. From an inspection of claim 1, it is to be seen that Baker's

11. In combination with the spindle and the hub, two sets of balls interposed between said spindle and hub adjacent the ends thereof, said balls being of different sizes, the larger of said balls being located in line with the traction and tread of the wheel, and a steering knuckle carried by said spindle in juxtaposition to the larger balls.

2. In combination with the spindle formed adjacent its inner end with a collar, a loose cone abutting said collar, a cone on the outer end of the shaft, a hub, races for different sizes of balls in the ends of said hub, balls arranged in said races and engaging the cones, the larger balls being located in line with the tread of the wheel, and a steering knuckle carried on the collar of said spindle in juxtaposition to the large balls.

3. In combination with the spindle, a collar carried adjacent the inner end thereof, and the steering knuckle formed integral with said collar, a hub provided at its inner end with spoke flanges, cones mounted on said spindle the inner end of which engages said collar, balls carried in the ends of the last hub and engaging the cones, said balls being of different sizes, the larger being in alinement with the spoke flanges of the hub, and means carried by the spindle for adjusting the outer cone,