as to infringement of this claim is not important, because it has been proved by uncontradicted evidence that the defendants' machine can be operated successfully, rapidly, and economically without the set of linked fingers which act as stops upon the can heads while being conducted to the machine upon the traveling belt. Therefore an injunction to prohibit the manufacture and sale of machines having these spacing fingers to act upon the can heads will not hurt the defendants, and, if they dispense with the spacing fingers, infringement of this claim will be avoided, because there will then be no element in their machine to perform the functions of the stop designated by the letter P, which is operated to permit the caps to pass into the machine one at a time by contact of the cans with a trigger designated by the letters N and O. These members of the combination in claim 5, N, O, and P, perform an important function in the Jensen machine, so that the combination will be broken and infringement avoided by making a machine in which that function is not necessary.

The fundamental principle of Jensen's invention is the application of power to automatically receive sheet-metal filled cans in an upright position, and swiftly, accurately, and economically apply tight-fitting flanged covers over the top or open ends. The combination of devices which perform the important part of this operation are comprised in claims 9, 10, and 11 of the patent. These I consider to be the vital parts of the machine. The elements of claim 9 are a vertically moving plunger, designated by the letter S in the drawings; the conical or beveled hole situated above and in line with it; and two segments of a circle with mechanism to cause the two parts to join each other so as to form a complete circular opening smaller than the top of the beveled hole, and situated immediately above it, and to recede so as to enlarge the circular opening. The function of S is to receive the can and push it vertically into the conical guide until the top of the can receives the flanged cover, and then, acting in combination with the mechanism for actuating the movable segments which have supported the cover above the beveled hole, descends the moment the segments recede from each other, so as to release the headed can from the contracted circle. According to the undisputed evidence, this machine is the first one ever designed which in use has proved to be successful in applying tight-fitting covers upon filled cans, and its merits are such as to require liberality in construing these claims, so as to protect the owner of the patent from infringement by mere changes which any skilled mechanic might easily make in the devices which actuate the movable segments of the cap holder. The claim does not specifically mention any particular device for actuating the slides, although the specifications and drawings show the means which the inventor applied; but, giving a liberal construction to the claim, I do not consider that it should be restricted to the use of those particular devices. When this invention was perfected, there were numberless devices of arms, elbows, rings, wheels, levers, wedges, screws, springs, weights, cogs, and cams known to machinists which are adaptable to apply the force required to perform the function of contracting and expanding an open circle formed by movable segments. In the defendants' machine there are beveled holes above and in line with vertical moving plung

ers through which the open top ends of the cans are pushed into the tight-fitting flanged covers supported above the hole by segmental plates which are movable, and when actuated the parts join each other so as to form a central circular opening through which the top end of the can passes into the cover, and there are actuating devices which cause these plates to form a resting place for the covers, and to recede at the right moment, so as to expand the circular opening and release the cans after the heads have been applied. The function of these segmental movable plates is exactly the same as in the Jensen machine, and the same result is accomplished by exactly the same means. There is this difference: that in the defendants' machine the cap holders are divided into three segments instead of two, and there is some difference in the devices for actuating them, to which further reference is unnecessary. The conical guides or beveled holes in the defendants' machine are similar to the same devices in the Jensen machine, the only difference being that in the defendants' machine as organized there are four conical guides to work in combination with four plungers, instead of the one guide in the Jensen machine. The defendants and their solicitors have labored strenuously to show by evidence and argument a substantial difference between the plungers in the defendants' machine and the Jensen plunger, but it is my opinion that they are alike in form and mode of operation, and perform the same functions in both machines by the same means. It is said that the Letson and Burpee plungers have two motions,-vertical and horizontal; that is, a circular motion on a horizontal plane, and that the Jensen plunger has no other movement than the vertical. But I find that in the operation of the defendants' machine the plungers do not move at all, except as they are pushed upward by contact of the lower end of the piston, designated by the number 18, with the inclined surface of the cam, 46, as the radial arms which support the plungers revolve upon their central axis. The plungers are always in line with the conical guide into which they push the cans by the only movement which the plunger is capable of making. The lower end of 18 reaches the highest elevation of the inclined plane when the can has entered the can head, and then, as the radial arms continue to revolve, the headed can. descends vertically as the lower end of 18 moves downward upon the descending incline of the cam. The plunger itself is a distinct part of the defendants' machine, just as it is in the Jensen machine, and the bracket which supports it is a different thing, and has a distinct movement. It is true that the plungers are carried around and around by the rotation of the brackets, but the can-heading mechanism above, which acts in combination with them, is affected by the same rotary movement. The Jensen machine would not be changed if it were placed intact upon a car, and made to operate as the car travels upon a horizontal plane as a railway track, and yet, by being carried along horizontally, the plunger would have a horizontal movement,-that is to say, it would be moving horizontally as the car traveled, and that horizontal movement would be quite similar to the movement which affects the plungers in the defendants' machine by the rotary. action of their supporting brackets or radial arms.

The tenth claim comprises the plunger, S, the conical guide or bev

eled hole in combination with an upper plunger, which presses upon the can head, and follows it down by gravitation or other force so as to steady the can in its descent. There are similar upper plungers working in combination with the plungers, which push the cans upward into the can heads, in the defendants' machine, but it is contended that infringement of this claim has been avoided because the defendants' upper plungers are not required to steady the can, other means being provided to that end. It is not denied that the upper plunger may to some extent steady the cans in their downward movement, and the testimony shows that if a can for any reason sticks in the hole, so that it does not descend by gravity, the upper plunger acts as a positive force to push it down. It is my opinion, however, that the intention of the builder of an infringing machine has nothing to do with the question of infringement, because a device which is in fact the equivalent of another in force, and which produces the same effects by the same means, is an equivalent, notwithstanding any failure of its maker to comprehend in his design all the effects which it is capable of producing. I can find no substantial difference between the upper plungers in the two machines, either in form, effect produced, or the means by which the effect is produced.

It is unnecessary to discuss the eleventh claim any further than to say that among the devices making the combination of that claim there is included a part which I have heretofore referred to as the second feeder, F, which is not reproduced in the defendants' machine, as I have heretofore explained, and therefore the eleventh claim is not infringed by the defendants' machine.

By the final decree the court will award a perpetual injunction against the manufacture, sale, and use of machines embodying the combinations specified in claims 5, 9, and 10 of the Jensen patent, and will deny relief as to claims 1, 3, and II. The case will also be referred to a master, if necessary, to state an account, or ascertain the amount of damages which the complainant is entitled to recover.

CONSOLIDATED STORE-SERVICE CO. v. WINTERS et al. (Circuit Court, W. D. Arkansas, Texarkana Division. December 15, 1902.) 1. PATENTS-INFRINGEMENT-CASH CARRIERS.

The Osgood patent, No. 357,851, for a store-service apparatus, discloses a patentable invention which was not anticipated, and is valid. Also held infringed.

In Equity. Suit for infringement of letters patent, No. 357,851, for a store service apparatus, granted to Edwin P. Osgood February 15, 1887. On final hearing.

C. B. & Henry Moore and Guy Cunningham, for complainant.
Scott & Jones, for defendants.

ROGERS, District Judge. The validity of complainant's patent, No. 357,851, has been recognized in the following cases: Consolidated Store-Service Co. v. Siegel-Cooper Co. (C. C.) 103, Fed. 489;

Id., 46 C. C. A. 599, 107 Fed. 716; Same v. Herzog (C. C.) 100 Fed. 299, affirmed in 45 C. C. A. 159, 105 Fed. 985; Same v. Seybold, 45 C. C. A. 152, 105 Fed. 978. Relief was refused in all these cases, on the ground that there was no infringement. The same patent was also recognized in the following cases: Store-Service Co. v. Whipple (C. C.) 75 Fed. 27; Same v. Wilson (C. C.) 83 Fed. 201. Affirmative relief was granted in both these cases, the validity of the patent being recognized, and the defendants enjoined on the ground of infringement. In Wilson v. Store-Service Co., 31 C. C. A. 533, 88 Fed. 286, the circuit court of appeals for the First circuit dissolved a preliminary injunction, issued merely on affidavit, on the ground that the patent was too doubtful to justify it; but the court is informed that on final hearing, the defense having taken no testimony, the decree was entered for the plaintiff.

In view of these decisions, the court is of opinion that the validity of the patent in controversy ought to be considered as established; and, independent of that, determines for itself that patent 357,851 discloses a patentable invention which was not anticipated, and is valid; although, as said by Judge Shipman in Consolidated Store-Service Co. v. Siegel-Cooper Co., supra, it is entitled to a narrow construction.

It is not necessary, for the purposes of this case, to pass upon the validity of patent 293,192, in regard to the validity of which there seems to be some conflict in the decisions of the courts. My mind inclines to the view, however, that patent 293,192 also involves a patentable invention.

If the court is correct in holding that patent No. 357,851 is valid, and embraces a valid and patentable invention, then the only remaining question is as to whether or not there was an infringement in this case. The defense has taken no testimony whatever, and the only evidence bearing upon the question of infringement grows out of the testimony of P. G. Roquemore, which, by stipulation, is taken as his deposition, and wherein it appears that the defendants, after the 1st day of January, 1897, used a system of store-service apparatus consisting of four cash carriers, branded "Standard," in their store in Texarkana, Ark., and that the same were used up to within 18 months before the filing of the bill of complaint in this suit; and that the cut on opposite side of a sheet of paper attached to his deposition is a fair representation of the four cash carriers branded "Standard," now in the basement of the store formerly occupied by Joe Winter & Co., the differences. "being more of an artistic than of a mechanical nature." On the opposite side of the paper referred to is a cut of the four cash carriers branded "Standard." A careful comparison of this "Standard" apparatus with the invention of the complainant leads me to the conclusion that the principles involved in both are precisely the same. There are some differences as to the methods of staying the same to the ceiling and walls of the building, but this is no part of the patentable apparatus, nor does it involve anything that is patentable. But the taut wire, the method of keeping it taut, the construction of the car, and the method of operating the car, as well as stopping it, are precisely the same as those covered by the Osgood patent, which is patent No. 357,851, owned by the complainant. True, in the "Standard" ap

paratus the car, instead of being pushed by hand, is operated by a lever; but the lever and pulley used for that purpose are neither novel nor patentable, and involve no new principle whatever.

I conclude, therefore, that the "Standard" cash carrier used by the defendants was an infringement upon the Osgood patent. In this case it was conceded that the damages sustained were nominal, and counsel waived the reference of the case to a master. The decree of the court, therefore, is for the complainant for a permanent injunction. It is so ordered.

BURROWS et al. v. GOWER.

(District Court, D. Massachusetts. December 26, 1902.)

No. 1,257.

1. COLLISION-FOG SIGNALS-SAILING VESSEL LYING TO.

A sailing vessel lying to in a fog, but having some of her sails up, is "under way," and is governed by article 15, cl. "c," of the international navigation rules, and where the wind is on her starboard bow she is on the starboard tack, and the proper fog signal is one blast.

In Admiralty. Suit for collision.

Wm. A. Pew, Jr., for libelants.
Carver & Blodgett, for respondent.

LOWELL, District Judge (after finding the Gower at fault). The Story I hold to blame for not sounding her fog horn until it was too late. Counsel for the libelee also contended that the signal she gave, one blast, was incorrect, as she was not "sailing," in the ordinary sense of the word, but was rather lying to. I have therefore to consider what signal is required by the international rules' from a vessel lying to in a fog. The question calls for an examination of the rules in some detail.

The Story was under way, within the definition of the international rules. Mars. Mar. Coll. 405, 431; The Columbian, 100 Fed. '991, 41 C. C. A. 150. The Alfredo (D. C.) 30 Fed. 842, affirmed in (C. C.) 32 Fed. 240, was decided under the rules of 1885, which did not contain the existing definition. Act 1885, c. 354; 23 Stat. 438. If a vessel under way, with the wind on her starboard bow, is necessarily on the starboard tack, then the Story should have given one blast on her horn, whether she was making any headway or not. Apart from article 15, cl. "e," the above is the correct construction of the international rules. This appears from a comparison of clauses “a," "b," and "c." Clause "a" deals with a steam vessel "having way upon her," a phrase carefully distinguished from the phrase "under way." Clause "b" deals with a steam vessel "under way, but stopped, and having no way upon her," a phrase which indicates that a vessel "stopped and having no way upon her" is yet deemed to be "under way," within the purview of article 15. Clause "c" deals with a sail

11. Signals of meeting vessels, see note to The New York, 30 C. C. A. 630.