might entitle complainant to letters patent on the machine, or mechanical invention. But not the product. This, however, the court is not now attempting to decide.

For the reasons stated the court is, therefore, constrained to adjudge the East patent, No. 429,021, invalid.

But for a full determination of the cause, and admitting, for this purpose only, the validity of complainant's patent, or the East patent assigned to complainant, the court further finds, as a fact and conclusion of law, the said letters patent have not been infringed by defendant corporation, the Spruks Manufacturing Company. The defendants' barrel (Canfield barrel, February 1, 1901) is made from a sheet of veneer. The latter is cut to form two barrels, the central dividing line showing the line of cutting the sheet into two parts, from which two barrels are made. The blank for each barrel is a flat sheet having at each end a series of gores of V-shaped openings or slots, and intermediate the opposite gores, between the end hoops and the center bilge, a series of parallel cuts, partially through the wood. Barrels having a series of longitudinally arranged slots provided as ventilating openings were old (Roberts' patent). It is evident that both complainant and defendants have each merely improved upon the prior art; that neither is the originator of the three basic principles involved in each,-ventilating openings, a veneer barrel, and a bilged or curved veneer barrel. In such case, "if the advance towards the thing desired is gradual, and proceeds step by step so no one can claim the complete whole, then each is entitled only to the specific form of device which he has produced." Railroad Co. v. Sayles, 97 U. S. 554, 24 L. Ed. 1053.

Th complainant's patentee, East, was not the first to make a ventilating barrel, nor was he the first to make a veneer barrel, or the first to make a bilged veneer barrel. In view of which, the fact that defendants' barrel is a ventilating barrel, that it is a veneer barrel, and that it is a bilge veneer barrel, does not determine or aid in determining its identity with complainant's barrel. That both are designed to effect the same purpose is not of importance in such inquiry. Results are not patentable, only the means to effect results. Case v Brown, 2 Wall. 320, 17 L. Ed. 817; Corning v. Burden, 15 How. 252, 14 L. Ed. 683. Complainant and defendants started with the disclosures of the Georgia and Roberts patents as the foundation. of their respective devices. With the early Georgia patent before a cooper or barrel maker, it certainly did not involve invention to cut a series of parallel ventilating slots or slits in the periphery of the Roberts bilged veneer barrel, more especially as that had been common with stave barrels. But East did not so alter the Roberts barrel, but, starting anew with Roberts' sheet of veneer, and avoiding Roberts' method of making a bilge barrel by contracting the chine ends, he did three things, which differentiate his method and the product of it,-three steps which are sequential, the order of which is essential,-and all so dependent on each other that none may be omitted without destroying or at least failing to obtain the resultant finished product,-the ventilating bilge barrel of veneer de

scribed in the patent. Instead of cutting out edge gores as Roberts did, East substituted parallel slits or cuts arranged transversely to the length of the blank (parallel with the finished barrel), and extending only through the middle portion of the blank, uncut and continuous or integral, for the purpose of forming the chine ends of the barrel. Following Roberts, he rolled the sheets in cylindrical form and bilged or curved it, not, as Roberts did, by slotting or goring the end edges contracting the cylinder at the ends and bilging it at the center by surface slits, not through, thus causing ventilating spaces. In short, defendants obtained ventilation by means of the slotted ends, and complainant through the expanded center slits. But having taken these two steps, he, East, had a radical series of bent bows or staves, connected at the top and bottom, and under powerful tension, creating a natural and continuing tendency to split the opened slits out to the end; hence he supplied an absolutely essential means to prevent this splitting, by fixedly holding the barrel in the bilged or curved form which such middle expansion gave it, these holding means being "hoops placed inside the barrel to hold the sides of the barrel to its expanded form." And thus he accomplished what complainant now makes and sells, i. e., a ventilating veneer barrel, in which all of these features are required to be present.

Defendants, on the other hand, in the production of their barrel, began with the same Roberts veneer sheet. They preferred Roberts' method of giving the bilge or curve to the barrel, hence gored or notched the end edges, as he did, but cut the gores wider and deeper, so that, after forming a cylinder and when contracting its chine ends (still following Roberts), the widened gore edges would not be brought together, but leave deep ventilating spaces, and put on the usual outside quarter hoops,-and none inside, for none were needed there,— and supplied ventilation near the head or chine ends rather than altogether in the central portion of the barrel. The defendants' barrel is thus shown to be evolved from the Roberts barrel, and not from East's. Defendants widened the end gores or notches by a series of surface cuts on the veneer sheet. Complainant claims these are the slits of his patent. Hence this suit. Aside from the fact that the patented device is in the nature of, and described and claimed as, a combination of old elements, and hence to be compared as an entirety; and aside from the fact that the defendants' device wholly lacks two essential elements of the patented device-middle expansion, and integral chine ends without which it cannot be legally identified with that of the patent. This contention, therefore, cannot be sustained.

The sole other contention of complainant, on which he bases identity of defendants' structure with his, is that defendants' surface cuts, between the outside quarter hoops, are the same as, or the equivalent of, East's "slits."

In the depositions and the argument much expert testimony and learning are devoted to drawing a distinction between slits and slots,the slots in the Roberts barrel and the slits in the East barrel. Expert testimony is sometimes valuable and frequently interesting, but

seldom controlling,-never when directed to matters capable of ocular demonstration, unscientific matters. That a slot is when a part of the veneer or wood or other material is cut out and removed, and a slit simply when it is cut through, does not require expert testimony or argument to determine. Both are understood as applicable to wood by every hammer and saw carpenter. Neither are per se patentable. Complainant uses a slit as described in the application for the East letters patent for the identical purpose for which Roberts used a slot,-ventilation. But giving to complainant all that is claimed in the argument, defendants do not and have not used for ventilation the slit in complainant's claim or device. Defendants obtain ventilation by means of slots at different places on their barrel from the slits on complainant's barrel, and only use gashes or slits, partially through the veneer, to obtain pliability or bilge. They are not the same, but are they equivalents? It is not controlling if they are, but they are not. "One thing, to be the equivalent of the other, must perform the same function as that other." Rowell v. Lindsay, 113 U. S. 103, 5 Sup. Ct. 507, 28 L. Ed. 906. But even this is not conclusive of identity, for "function must be performed in substantially the same way by an alleged equivalent, in order to constitute it such." Burr v. Duryee, I Wall. 573, 17 L. Ed. 650; Dryfoos v. Wiese, 124 U. S. 37, 8 Sup. Ct. 354, 31 L. Ed. 362. An infringement involves substantial identity. The argument used to show infringement assumes every combination of devices in a machine which is used to produce the same effect is necessarily an equivalent for any other combination used for the same purpose.

It is therefore ordered, adjudged, and decreed:

1. That the East patent, No. 429,021, is invalid for the reasons stated.

2. That there is no infringement of the East patent by defendants. 3. That the bill herein be dismissed.

4. That the defendants recover of the complainant their costs and disbursements, to be taxed by the clerk of this court. A formal decree will be drawn accordingly.

ALASKA PACKERS' ASS'N v. LETSON et al.

(Circuit Court, D. Washington, N. D. December 16, 1902.)

No. 911.

1. PATENTS-Infringement—EQUIVALENTS.

A mechanical equivalent must be adaptable to use as a substitute for something else, and competent to perform the functions of a particular device for which it may be substituted.

2 SAME-CAN-HEADING MACHINES.

The Jensen patent, No. 376,804, for a can crimping and capping machine, covers an invention of such merit and utility as to entitle its claims to a liberal construction. As so construed, claims 5, 9, and 10 are infringed by the machine of the Letson & Burpee patent, No. 629,574; claims 1, 3, and 11 held not infringed.

In Equity.

This is a suit in equity, commenced and prosecuted by the Alaska Packers' Association, a corporation, of the state of California, against J. M. K. Letson and F. W. Burpee, a firm engaged in the manufacture of machinery at Fairhaven, in the state of Washington. The complainant sues as the assignee and owner of United States letters patent No. 376,804, issued January 24, 1888, to Mathias Jensen, of Astoria, Or., for a can crimper and capper, a machine which has been extensively used in the business of canning salmon on the Pacific coast since the date of the patent. The bill of complaint charges infringement of said letters patent on the part of the defendants by making and selling without license other machines embodying the invention protected by said patent, and the prayer of the bill is for an injunction to restrain the continuance of such infringement, and for an accounting. This can crimping and capping machine and other inventions of Mathias Jensen have figured extensively during the past 10 years in litigation under the patent laws in the courts of the Ninth circuit, in which Jensen or his assignees were required to defend against similar charges of infringement. At first it was decided that his can crimping and capping machine was an infringement of older patents. See Norton v. Jensen, 1 C. C. A. 452, 49 Fed. 859, in which case the circuit court of appeals affirmed the decision of the United States circuit court for the district of Oregon, by Judge Sawyer. The circuit court of appeals, in the case referred to, commended the Jensen machine as being a valuable improvement, and successful in operation; but, giving a broad and liberal construction to one of the patents sued on in that case, which, from the evidence submitted, appeared to be a patent covering an invention of an original or pioneer character for automatically and rapidly placing the caps or end pieces upon can bodies, the court decided the Jensen machine to be an infringer. In cases which were subsequently considered, however, upon additional evidence, the court took a different view of the merits of the Norton inventions, and denied that they were infringed by an improved Jensen machine, built according to the specifications and drawings of United States letters patent No. 443,445. See Wheaton v. Norton, 17 C. C. A. 447, 70 Fed. 833; Norton v. Jensen, 33 C. C. A. 141, 90 Fed. 415.

Mr. L. W. Seely, one of the witnesses for complainant, gives a perspicuous general description of the Jensen crimping and capping machine, as follows: "The machine shown in the Jensen patent is one for placing heads upon cans, and is intended more particularly for heading cans which have already been filled. Consequently, one of its chief characteristics is that the can enters the machine in a vertical position, and remains in that position while being headed, this in order to prevent the contents of the can from being spilled. The machine comprises, in the first place, a table, which supports the canheading mechanism, which I will refer to hereafter. An automatic feeding device is provided, comprising a belt, lettered A in the drawing, which belt has automatically operated spacing mechanism to insure the feeding of only one can at a time. The cans entering the machine upon this belt in a perpendicular position are received by a feeding or transferring device which changes the direction of their motion, and transfers them to the header. When so transferred, each can rests upon a can support or plunger, which is situated in a vertical line with an upper plunger. Between the two plungers is a conical guide or opening, in which the heading takes place. The heads or caps are also automatically fed into the machine, and, when they reach their final destination, are in line with the can, and rest upon movable slides provided with countersinks or ledges which hold them in position. When the parts are in the position I have just stated, the lower can support or plunger is raised, lifting the can, and forcing it through the conical guide, and into the cap as it rests in the countersink. The upper plunger forms a backing or abutment for the cap during the heading operation. As soon as the can is introduced into its head, the slides are withdrawn, and the lower plunger descends, being followed down by the upper plunger, until the can reaches the level at which it entered the header, after which, in its headed form, it is delivered. In the passage of the can to the header it operates a

mechanism which controls the delivery of heads from their feeding device, the can striking a lever, which, through a connected mechanism, withdraws a stop from the can-head feed, and permits one head to be delivered. After the heading of the can in the Jensen machine, it is transferred from there to a crimping device, where the head is secured in place, and is then discharged from the machine."

The answer makes an issue as to the validity of the patent sued upon, but Mr. Wheaton, solicitor for the defendants, in his oral argument upon the hearing of the case fairly admitted the validity of the patent, and its merit as a useful improvement in machinery for automatically putting the head pieces or caps on filled cans, and conceded the invention to be of such degree of merit that the courts would apply a liberal rule in construing the patent to cover the actual combinations specified and claimed and all combinations of equivalent elements. It is also an undisputed fact in the case that the defendants are engaged in manufacturing and furnishing for fish canneries machines for automatically putting the head pieces or caps on cans already filled with fish, doing exactly the same kind of work as the Jensen crimping and capping machine, except crimping the flanges of the can heads, which is a part of the can-heading operation not performed by the alleged infringing machine.

The defendants are the inventors of a can-capping machine described in specifications and drawings in a patent therefor issued to them July 25, 1899, being United States letters patent No. 629,574, and the machines which they are manufacturing and offering for sale are built according to said specifications and drawings with certain modifications and improvements found to be useful since the date of their patent. As I have stated, the defendants' machine is designed to automatically place the caps on filled cans, and does that part of the work in a manner similar to the operation of the Jensen machine. Both machines comprise combinations of similar devices having the same functions, and the principal elements common to both, admitted by the testimony of the defendant Burpee upon his cross-examination, are as follows: There is in both machines a conical guide; that is, a beveled or funnel-shaped hole, which acts to round up and size and guide centrally the can into the can head or cap, which is held in place above the can by a ledge or countersunk space above the conical guide. In both machines there is an endless traveling belt, which carries the cans to a second feeding mechanism, which receives them one by one. In both machines similar means are provided for checking the cans in their passage upon the traveling belt, and spacing them so that each can must, with precision, come in contact with the second feeder, designed to move it to the proper position for capping. In both machines the cans are swept off the carrier belt by the second feeder. In both machines the transferring feeders are geared to move continuously when the machine is in operation. In both machines each can in its forward movement, by contact with a device in the nature of a trigger, withdraws temporarily a stop in the path of the can heads so as to admit of but one head at a time being conveyed to the machine. In both machines the can heads are carried automatically in a continuous line until brought in contact with mechanism for placing them one at a time in a position above and in line with the conical guide. In both machines the feeder places the cans one at a time on a rising and falling plunger or can support which moves each can upward into the conical guide. Both machines have, in connection with the conical guide, sliding plates having their inner edges shaped as arcs of a circle, and operate to close up, so as to form a complete circle, and to recede, so as to expand after each can has received its cap, and to admit of the can with the cap upon it being depressed downward and discharged from the conical guide. Both machines have an upper plunger above the cap when in position to receive the can, which rests upon the cap to resist the upward movement of the can, and follows the can downward after it has received its cap; and in both machines each can is automatically carried away from the plunger or can support after being capped.

If the Jensen machine, in its entirety, might be considered as the patented Invention, and if another machine doing its work automatically by the opera