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the weight, H, is close up to the pulley, G, in the frame. The hook pawls, L, engage with the teeth of the rack, and thus hold the frame, I, in place. The tension is thus kept up, and the elongation of the cable is compensated without cutting it or having turns about a drum, and when the weight, H, has descended to the bottom of the pit, it is at once raised again by the block and tackle, without stopping or disturbing the cable.

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The claims of the patent read as follows:

(1) A tension and compensating apparatus for railway cables, consisting of the cable pulley, A, having its axis journaled upon the movable car, C, and the chains, F, and weight, H, in combination with the rails or timbers, E, upon which the car travels, mounted upon a frame, I, which moves upon a secondary track, J, substantially as and for the purpose herein described. (2) The car. C, moving upon the rails, E, and supporting the cable pulley, A, the weight, H, and chain, F. and the rails, E, moving upon a secondary tramway. J, in combination with the operating tackle and the holding racks and pawls, substantially as herein described. "

Wheaton, Kalloch & Kierce, for appellant.
W. F. Booth, for appellee.

Before MCKENNA, Circuit Judge, and ROSS and KNOWLES, District Judges.

MCKENNA, Circuit Judge. The plaintiff's patent is for a tension apparatus for cable railways. Cables by use stretch, and means must be provided to take up the slack. It was usually done by a 'weight suspended in a pit, and attached to the cable wheel. Manifestly the bottom of the pit was the limit of the tension. That reached, the cable either had to be shortened by removing a part or by taking one or more turns around a drum or pulley. As an improvement on this method, William Eppelsheimer, August 7, 1877, obtained a patent, (No. 193,939.) The object of his invention was to automatically keep the cable or rope at a certain tension. It was accomplished by the cable wheel being mounted on a car which moved on rails. This car also carried a shaft on which was keyed a drum and a ratchet wheel, which engaged in a rack on the rails on which the car moved. The weight is suspended in a pit as in the old method, and is attached to a drum passing over a fixed pulley. The operation is that, when the cable stretches by use, the weight pulls on the drum, which is prevented from revolving by a pawl, and the cable pulley car is moved in the opposite direction from the pull of the main cable. Should the stretching weight touch the floor of the pit by turning the shaft on which the drum is keyed, the stretching chain is shortened by winding around the drum. When the pull is by any cause by the main cable, the drum is made to revolve, to wind on it the stretching chain.

This was the state of the art when the patent sued on was granted, and it was hence contended that there is no invention in the latter. There are certainly similarities in it to the Eppelsheimer device, but there are differences also. In both the tension on the main cable is ultimately maintained by a weight, but the ways of raising it are not the same. In the Eppelsheimer patent it is raised by the operator winding the chain on the drum by means of a crank. In the plaintiff's patent it is raised by a car with a pulley moving backwards under the chain. There are other differences, and the testimony shows that they are more than formal. The result is a more automatic and compensating adjustment than obtained in the Eppelsheimer patent. The plaintiff's is a practical machine, but Mr. Bell, defendant's witness, and who devised its machine, hesitated to say that the Eppelsheimer device was a practical one, and admitted he would not have used its automatic devices. We must hold, therefore, and in this we are sustained besides by the presumptions which attach to the patent, that the plaintiff's patent is so far different in kind and degree to that which preceded it as to constitute an invention.

Has the defendant infringed it? The plaintiff claims the invention to be a cable pulley having its axis journaled upon a car which moves on rails or timbers, which again travel on a second track. It is called in the patent a "secondary track." In the defendant's device part of the rails and timbers which appear in plaintiff's device

are cut away, and the movable car which supports the cable pulley, and upon which it is journaled, as in plaintiff's patent, is let down so that the car which carries the cable wheel and the car (if it can be called a car,-in the plaintiff's patent the name is "rails or timbers") which carries the chain wheel moves on the same track. This change involved minor alterations, which are not necessary to detail. It is manifest there is an infringement. The purpose, principle, and operation of the machines are the same, and the defendant's escapes exact similitude of construction to the plaintiff's only by a few alterations. It is not a case of using the elements of a combination less than all. It is a case of using the same number of elements, and altering the form of one, and not materially altering the relation of any to the others. The objection of defendant to the question addressed to the witness Bell, as to the function of certain parts of the plaintiff's and defendant's devices, is treated by counsel as involved in the other assignments of error, and must be considered as disposed of by the decision on them. Besides, if error, it cannot be said to have been a prejudicial one. Judgment is affirmed.

CONSOLIDATED PIEDMONT CABLE CO. v. PACIFIC CABLE RY. CO. (Circuit Court of Appeals, Ninth Circuit. October 24, 1892.) No. 50.

1. PATENTS FOR INVENTIONS-Infringement-COMBINATION OF OLD ELEMENTS -EQUIVALENTS.

The third claim of letters patent No 189,204, issued April 3, 1877, to William Eppelsheimer, for an "improved clamp apparatus for tramways or street railways," which covers a combination of five old elements, one consisting of friction_rollers, is infringed by a device containing four of the same elements, and a fifth consisting of a bell crank or a toggle; for both of the latter are well-known devices, and the equivalents of the friction rollers. 2. SAME.

While a combination claim, composed of old elements, may not be infringed by using all but one of its elements, yet infringement results if an equivalent is substituted for the omitted element.1

Appeal from the Circuit Court of the United States for the Northern District of California.

In Equity. Bill by the Pacific Cable Railway Company against the Consolidated Piedmont Cable Company for infringements of letters patent No. 189,204, issued April 3, 1877, to William Eppelsheimer, for an "improved clamp apparatus for tramways or street railways." The circuit court entered a decree sustaining the validity of the third claim, finding infringement thereof by defendant, perpetually enjoining the same in future, and referring the cause to a master to take an account of profits and damages. From this decree, defendant appeals. Affirmed.

The patent contains seven claims, but at the trial the issues were confined to the third claim, which reads as follows:

"The combination with the shank, E, as described, of the hinged clamping jaws, e3, together with the operating slide, F, its crossbar, f2, and bearing rollers, f, as and for the purpose specified."

1 See note at end of case.

v.53F.no.3-25

In the specifications the gripping device is thus described:

"In an aperture extending longitudinally through the shank, E, is arranged the slide bar or rod, F. Upon the lower end of the shank, E, are hinged the jaws, e, between which, in suitable semicircular recesses or channels, b', on their inner faces, the cable is grasped. The outer faces of these jaws are inclined outwardly from the hinge joint to their lower edges, as shown at et, Fig. 3, and upon these faces are arranged to bear-friction rollers, f, which are mounted on axles, f', arranged above the jaws, and fixed in, and carried by, a crosspiece, f2, which is fixed on the lower end of the slide, F. e5 is a pin set in one of the eye pieces of the hinge joint of the jaws, and projecting above one of the said friction rollers, f.

Fig.2.

"G, G, are frames hinged to the lower end of the shank, E, and carrying upon one or both ends the guide rollers, g. each pair being arranged to engage between them the cable, D, and to support it and guide it to the jaws, e3. These frames are pressed downward, and their rollers thus held upon the cable by a spring, g', while an angle arm or stud, g2, fixed in one of them, as seen in Fig. 2, and extending up and over the crosspiece, f2, on the slide, f, operates to swing the frame, and, consequently, to part the rollers, g, when the slide is raised, and it is desired to disengage the gripping device from the cable. Two half rollers. H, (carried by spring arms, h, which extend downward from the shank, E. and pass under the friction rollers, f, carried by the slide, F, and which said rollers are brought side by side to form one roller to support and guide the cable to the jaws, e3, by the downward movement of the slide, the rollers, f. pressing upon the curves, h', in the arms, h.) may be employed, instead of the rollers, g, or they may be employed at one end of the jaws in connection with a single pair of the rollers, g. in frames, G, at the other end of the jaws, as shown in the drawings, (sheet 1.) The rollers, H, are operated to release the cable when the gripping device is disengaged therefrom by the raising of the slide, F, when, the spring arms, h, being relieved from pressure by the rollers, f, the two half rollers will separate from each other, and the cable may pass between them. The slide and its shank piece, E. may be conveniently raised or lowered by means of a lever, as shown at I, Figs. 4 and 5.

*

*

"The operation of my invention is as follows: * The shank is lowered until the rollers or pulleys, e2, rest upon the cable, and the rollers or wheels, e, rest on the track or rail, c' The slide, F, is now forced downward in the shank, E. and, by means of the pressure of the rollers, f, on the outer faces of the jaws, e3, the jaws are closed upon the cable, and grip it tightly, while the rollers, g, or, H, support and guide the cable to the jaws. The truck or car is thus set in motion, and, as the gripping device moves along with the cable, it encounters in its progress the lower pulleys, d, and the upper pulleys, d'."

Wheaton, Kalloch & Kierce, for appellant.

W. F. Booth, for appellee.

Before MCKENNA, Circuit Judge, and ROSS and KNOWLES, District Judges.

MCKENNA, Circuit Judge. The device alleged to be infringed by defendant is a clamp or grip for endless rope or cable railways. The patentee calls it in his specifications an "improved clamp apparatus for

tramways or street railways," which may be construed as conceding the existence of a predecessor of some kind for like purpose, the entire form and comparative utility of which is not shown. The patent, therefore, is a combination of old elements, and consists of seven claims, the third of which is alleged to be infringed. It is a combination of five elements. The infringing device is also a combination of five elements, and four of them, it is conceded, resemble four elements of the plaintiff's combination. In the plaintiff's machine, the pressure which secures the grip of the cable is exerted through friction rollers; in the defendant's machine, through what was called in argument a "bell crank." In the testimony it was assimilated by an expert witness to a toggle joint. If it is either, it is an equivalent. A bell crank is a well-known mechanical device, and a toggle joint was held an equivalent to exert pressure of friction rollers by Judge Washington in Gray v. James, 1 Pet. C. C. 399.

It is urged by defendant's counsel that a combination claim composed of old elements is not infringed by using one of its elements less than all. But the qualification must be added that no equivalent be substituted for the omitted element. This is established by cases cited by defendant, and which are unnecessary to repeat. The distinction between a primary and a secondary patent is not overlooked, but, whether there is a strict or broad construction of equivalents, the defendant infringes. The axles and rollers are the crosspiece of the operating slide of plaintiff's machine. Their counterparts in defendant's machine are the circular arms of its operating slide and the pins connecting them with the gripping jaws. Extend the pin described in the specifications as "e5," which is set in one of the eye pieces of the hinge joint of the gripping jaws of plaintiff's machine around the roller, embracing them tightly, so that the jaws and rollers are one, there is revealed the defendant's device. The defendant's device manifestly escapes exact imitation of plaintiff's by only formal differences. It has the same number of elements in the same relations, and performs the same results in substantially the same way.

Judgment is affirmed.

In this case and No. 55 petitions for rehearing were filed but the court postponed action on them until the supreme court shall decide the question of jurisdiction raised in Columbus Watch Co. v. Robbins.

NOTE.

CIRCUIT COURT OF APPEALS-JURISDICTION-INTERLOCUTORY DECREE IN PATENT CASES.

It will be noted that in this, as well as in the preceding, case, (53 Fed. Rep. 382,) the court goes fully into the merits of the cause, makes an apparently final decision on the questions of validity and infringement, and aflirms the judgment below in toto. The appeal in each case was under section 7 of the act creating the circuit court of appeals, which allows an appeal from "an interloc utory decree granting or continuing" an injunction. Apparently no question was raised as to the extent of the review which the court is authorized to make on such an appeal. This question, however has been under consideration in some of the other circuits, and has given rise to a conflict of decisions.

In Dudley E. Jones Co. v Munger Manuf'g. etc., Co., 2 U. S. App. 55, 1 C. C. A 158, 49 Fed. Rep. 61, decided in the fifth circuit. the court, as here, considered the case on the merits. held that there was no infringement, and remanded the cause, with orders to dismiss the bill. Afterwards the complainant applied for a rebearing, and at the same time moved the court to vacate all its proceedings therein, and dismiss the appeal for want of jurisdiction, claiming that the decreo

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