John H. Miller and Dorr & Hadley, for complainant. HANFORD, District Judge (after stating the facts). I will proceed now to a consideration of the claims in their order, and the question whether either of them has been infringed by the defendants' machine. There are three elements in the first claim, viz., an endless traveling belt, a rigidly fixed stop-bar, and flexible spacing bars swinging over the belt. By this combination of devices the cans are introduced one by one into the heading machine. There is no originality in the devices nor in the combination. The sole merit of the claim consists in the adaptation of the combination to the work of bringing the cans in a vertical position, with the required rapidity and precision, within the influence of the other mechanism which places the caps upon them. In the defendants' machine we find the identical device of a carrying belt performing exactly the same work as the carrying belt in the Jensen machine, and operating in the same way, and flexible spacing bars, which, if not identical in form and mode of operation, certainly have the same office as similar devices in the Jensen machine, and they are so nearly alike in their construction and mode of operation as to be equivalents. Thus we find in the defendants' machine two of the three elements of this combination, but that is all. That the defendants' machine does not contain the stop-bar, E, of the Jensen machine, is admitted; but it is contended that in the operation of the defendants' machine the cans are stopped in their forward movement upon the traveling belt by a device which is equivalent to the bar, E. This contention is stoutly denied by the defendants, and the scientific experts who have testified in behalf of the complainant are, with respect to this point, flatly contradicted by the evidence for the defendants. It will be convenient now to refer to the accompanying drawings illustrating the different parts of the two machines in which the elements of the first claim are designated as follows: A traveling belt, A, the spacing bars by the letters j, j, and the stop-bar by the letter E. In the defendants' machine the traveling belt is numbered 59, the swinging spacing bars 79, and the secondary feeder, which removes the cans from the carrying belt and places them upon the plunger, is numbered 36. This feeder is a wheel, fixed upon a central axis, which rotates in a true circle above the carrying belt, the periphery of which, instead of being circular, is cut away so as to form four concave spaces or pockets, which, as the wheel rotates, partly encircle the cans, sweeping them off the belt upon a curved track slightly inclined, so as to carry them over the belt to the plungers, the cans being kept upon the curved track by a guard, designated 63. The periphery of the wheel, 36, between the four concavities is convex, and the mechanism is so adjusted that each can as it moves upon the belt comes first in contact with the convex portion of the wheel, and according to the testimony in behalf of the complainant the can is stopped in its forward movement when it first strikes the wheel before the concavity operates to change the direction of the can from the direct line of the traveling belt towards the curved track, so that the convex 119 F.-39 part of the wheel operates as a stop-bar, performing the same function as the bar, E, in the Jensen machine. This would be true if the periphery, instead of being convex, was cut away to form a straight edge, with an angular shoulder between the point where the can first comes in contact with it and the concavity, or if the speed of the belt in operation was faster than the speed of the wheel, so that the distance. which the belt moves before the can commences to move laterally were perceptibly greater than the vacuity between the round can and the swiftly moving convex part of the wheel; but it is my opinion that the evidence, including the exhibit of the defendants' machine in operation upon the hearing, demonstrates that in active operation the can does not make any perceptible stop, but moves continuously, just as a railway train continues onward when its course is changed from a tangent to a curve. The speed of the can is undoubtedly checked, but the rapidly revolving wheel with its curved periphery admits of a continuous onward movement of the round can without halting for any fraction of time whatever. It does not help the case for the complainant to say that the cans are arrested in their forward movement by coming in contact with 36, and kept in position to be caught by its concave pockets, because that effect is not produced by any distinct operation of 36. That member of the organization in the defendants' machine seizes the cans while moving upon the belt, and by one continuous circular movement deflects them from the tangent upon which the belt travels to the curve described by the track and the guard, 63, and places them upon the plungers, and it does not at any time act as a stop. My conclusion is that the stop-bar, E, is an element of claim 1 which is entirely dispensed with in the organization of the defendants' machine, and, being entirely eliminated, infringement of this claim has been avoided. One element of the combination comprised in claim 3 is the secondary feeder, F, which removes the cans from the carrying belt, and places them upon, and leaves them upon, the plunger, S, which is rigidly fixed in the central part of the machine, but moves vertically with regularity in time to push the cans upward into their caps, and descend after the caps are placed. By reason of its rigid location, S cannot actively assist in removing the cans from the grasp of the feeder, F, which, by its own movements, delivers the cans one at a time upon S, and removes them from it after they are capped. It is my opinion that infringement of this claim has been avoided by not reproducing in defendants' machine this feeder F, or substituting any equivalent for it. Therefore it is unnecessary to comment upon the other elements of claim 3. F is a straight-back with four arms or prongs, designated in the drawings by the letter H, projecting at right angles, so as to form three stalls or pockets. It is attached to three cranks which rotate, giving it an eccentric sweeping movement, which in operation pushes the cans laterally off the belt and longitudinally a step at a time. Each can, when in contact with E, is held stationary with the belt slipping under it, and in that position it first comes in contact with F between the first and second arms, H; that is to say, F, by its sweeping movement, comes against the can, and receives it into the first of the three stalls, and pushes it at right angles to the line. which the belt travels off the belt, and then moves it a short distance further into the machine towards S, and then recedes, leaving the can stationary upon the table until the next sweep, when it is received into the second stall,-that is, between the second and third arms,-and by that movement delivered upon the top of S, and F again recedes, leaving the can to be operated upon by S, in combination with other devices which put the cap upon it. Then by the next sweep F again receives the can after being capped in the third stall, that is, between the third and fourth arms, and moves it off the plunger, and again leaves it stationary upon the table, until by the next sweep the fourth arm, H, moves it a step further to a position within the influence of other devices which automatically deliver it to that part of the machine which crimps the flange of the cap tightly upon the can body. The feeder 36 in the defendants' machine necessarily acts in combination with the plungers, of which there are four in that organization, each of which is seated upon a projecting bracket or radial arm attached to a central revolving shaft, which causes the four brackets or radial arms to move continuously in a circle reverse to the continuous circular movement of 36. When a can, impelled by 36, and guided by the curved track and guard, 63, is brought into position upon the plunger seated upon the projecting extremity of one of the constantly turning radial arms, it is by that reverse circular movement released from the concavity, and it does not afterwards come in contact with any part of 36. The differences between F and 36 are radical, and not mere differences of shape and motion. I am not satisfied in my own mind that a true circular continuous movement of any device necessarily produces a fundamental difference from that produced by an eccentric and intermittent movement, but in this case the result produced by the differences in the movement of 36 from the movements of F is radical. 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. The word "equivalent" means equal in force and effect. 11 Am. & Eng. Enc. Law (2d Ed.) 252. Now, the feeder F, by its own movement, completes the delivery of the cans one at a time upon the plunger, S, and, after they are capped, removes them from it. The feeder 36 only places the cans upon the plungers. It cannot complete the delivery, because it cannot release them by its own movements; and it does not perform any part of the important function of removing the cans from the plungers, nor can it be adapted to perform both of these functions and work in combination with a rigidly located vertical moving plunger. Therefore I hold that 36 is not an equivalent for F. Nor can any combination of the devices in the defendants' machine which do perform all the functions of F be adapted to do the same work as F without entirely reorganizing the different combinations so as to make a different machine. Claim 5 covers an important part of Jensen's invention, but the question whether this claim is or is not infringed is not important in this particular lawsuit, and for the sake of brevity I will not undertake to make a detailed comparison of this part of the machine with any of the mechanism of the defendants' machine. I say that the question |