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upright bearing, giving a free lateral motion to the body to be lifted. So far as appears from the evidence in this case, the lateral motion of the rear portion is only required in cultivators, and it would therefore seem to be clear that only in cultivators could the avoided difficulty arise, and only in such machines, therefore, could an anticipation of complainant's combination device be shown. It is quite true that there may be no patentable invention in taking from one art or class of machines a device, and applying it to another, where the difficulties to be overcome are substantially the same in the two arts or classes of machines; but I take it that in such a case the difficulties must be so nearly alike that the new application of the device would suggest itself to a skilled mechanic.

I am quite clear that there is nothing in either of the devices named which would suggest to an ordinary mechanic the useful combination hit upon by Brown in his cultivator. This would seem established by the fact to which Judge Blodgett alludes, that for five years after the date of the first Brown patent, which included both the spring-lifting and the lateral movement of the cultivator beam, no one applied a spring to the beam in front of the pipe box, although, when Brown did it, the usefulness of the change was at once recognized by general adoption and frequent infringement. But, whatever I might think of these three alleged anticipations, were it a case of first impression, Judge Blodgett passed on inventions claimed to be anticipations which involved substantially the same principle as the three patents which I have discussed. In the Smith horserake, an English patent of 1856, the tines or prongs of the rake were attached by a tubular bearing to a rock shaft, and were supported on either side of the tubular bearing by adjustable, counterbalancing weights, but Judge Blodgett did not see in this any anticipation of the complainant's patent. Again, in the Hollingsworth horserake of 1867, the prongs of the rake were attached to the body of the machine by what was really a tubular bearing, and were depressed by the force of a counterbalancing spring attached to this bearing on the side opposite to the prong. This, too, was before Judge Blodgett, and he saw nothing in it to invalidate the complainant's combination device. If these are not anticipations, certainly the three new devices now for the first time introduced in evidence are not. Following Judge Blodgett's decision in the Buford Case, therefore, the validity of the second claim of complainant's patent will be sustained. We come now to the question of infringement. The second claim of complainant's patent is as follows:

"The combination with the crank axle and the gangs or plows with the pipe box, having an arm, M, a spring, N, attached to the main frame or head, I, and the stirrup, G, or its equivalent, having brackets, H, and pivot bolt, B, and fastened to the pipe box, substantially as and for the purposes described."

The respondents' machine is, like that of the complainant's, a walking, straddle-row cultivator, having an arched axle and two wheels, so that the cultivator can straddle the row of growing plants. Attached to the axle, and adjacent to each wheel, are the two drag beams, carrying the shovels which are to operate upon the soil on either side of the row of plants. These beams are each provided with

plow-shaped handles, so that the attendant walking behind the machine can manipulate the drag beams properly in relation to the row of growing plants; and the machine is provided with a tongue, so that the team can be attached. The attachment of the drag beams to the axle is made by means of a pipe box, which is a long, pipeshaped box, embracing and surrounding the axle adjacent to the hubs of the wheels. It has fastened upon it, and secured by a set screw, an adjustable collar, having in it a vertical bearing. This is embraced by the jaws of a casting, which are bolted to the ends of the drag beam. The arrangement allows both a vertical and lateral movement of the beams. The pipe box has a projecting arm, which terminates in a jaw having three holes in it. A pin passes through

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one of these holes, and keeps in position the bottom of a rod, which at its top passes through a guide piece, also provided with three holes, bolted to the rigid arm of the machine above. A spiral spring surrounds the vertical rod, and at its top abuts against the guide piece, and at the bottom against a washer sustained by a pin passed through any one of four holes made in the vertical rod. The result of this is that the spring is operative as a counterbalance against the weight of the drag beams, and can also be so adjusted as to force the drag beams downward below a horizontal plane, if such action is desired in the machine.

In my opinion the respondents' machine contains the combination stated in the second claim of complainant's patent. The crank axle,

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the gangs and plows, the pipe box having a rigid arm, the spring attached to this arm which lifts the plow beam, the mechanism by which a vertical bearing is given between the beam end and the pipe box, are present in both combinations. Each respective part performs the same function in substantially the same way. It is true that, for the flat spring in the patent, respondents have substituted a spiral spring, surrounding a stiff rod. These were well-known equivalents before complainant's patent. It is also true that the pivot bolt, which in complainant's patent connects the two brackets of the pipe box, and gives the vertical bearing for the head, I, of the beam end, does not appear in exactly that form in respondents' patent. Instead of this, the parts are exactly reversed. The brackets or arms in which the pivot bolt is fixed are attached to the beam ends, and the head, I, is attached to the pipe box. But the bearing operates in exactly the same way in respondents' machine, and discharges exactly the same function. The use of the spiral spring in respondents' machine is so arranged as to permit the operator to use the spring also for depressing the beam or gang plows if the pipe box arm is pushed beyond the vertical line backwards. This is an added function of the spiral spring, but does not change the character of the combination of complainant's second claim in the respondents' machine. By reason of the added function, it may be a patentable improvement on complainant's combination, but complainant's combination is still present.

Another difference between the two machines, which counsel for respondents insist upon, is the device used to fasten the stirrup in complainant's patent to the pipe box. In complainant's patent, the stirrup is held to the pipe box by means of a loop, and is made to rigidly connect therewith by means of longitudinal ribs upon the stirrup, which engage with corresponding ribs upon the pipe box. The stirrup, instead of having a loop, may be constructed in the form of a sleeve, and made to embrace the pipe box, in which `case it is adjusted thereon by means of a screw bolt, whose inner end bears upon a roughened steel jib, which bites the pipe box, and prevents the sleeve from slipping. This device, by the engaging of the longitudinal ribs, serves to fix the stirrup firmly to the pipe box, and also permits a circumferential adjustment of the stirrup so as to regulate the tension of the spring. There are quite a number of these ribs in the complainant's pipe box, permitting a gradual adjustment. In the respondents' machine the pipe box has only two ribs,-one above, and one below, which engage with corresponding depressions in the surrounding stirrup. The omission of the additional ribs in respondents' pipe box was for the reason that no variation of the tension of the spiral spring by means of the circumferential adjustment of the pipe box was possible. Such a variation of the tension of the spiral spring is accomplished by the simple and well-known expedient of a washer and a pin inserted at the lower end of the spring in one of three or four holes. To my mind, the flat spring, with the adjustment of its tension by increased longitudinal ribs on the pipe box, finds its purely mechanical equivalent in the use of the spiral spring with its adjustment by pin and washer. The same function is per

formed in substantially the same way, only that the spiral spring pushes, while the flat spring pulls. For these reasons, the respondents' machine is an infringement of the second claim of complainant's patent.

The third claim of the patent is as follows:

"The pipe box, E, having longitudinal ribs, combined with the stirrup, G, having corresponding grooves and a clamping device, substantially as described."

The evidence does not satisfy me that there is any novelty in this particular combination. In respect to this claim, the evidence of respondents' expert seems apt and reasonable:

"The question is, is this invention, or mere selection and skill? It is quite common in machinery to have one part bolted and adjustible to another under conditions in which slipping would be very undesirable; and it has long been quite common, under such circumstances, to groove or rib the contracting surfaces to prevent such slipping. I have been personally familiar with such ribs and grooves long prior to the date of the patent in suit, both upon cylindrical surfaces and flat surfaces. And in agricultural implements the expedient is often employed. I cannot at present, without extended research, find an example of such ribs and grooves applied to circumferential surfaces, but I find in patent 183,610, in Fig. 5, the same system of ribs and grooves applied to flat surfaces bolted together. In the rotary tumblers of safe locks, the inner part of the tumbler adjusts rotarily to the outer part; and for twenty-five years, to my knowledge, the engaging surfaces, cylindrical in form, have been ribbed and grooved. Under this circumstance, I am strongly inclined to believe that the provision of Stover's pipe box and sleeves with ribs and grooves was not an invention of a novelty, but was a mere adaptation of a well-known mechanical equivalent."

The finding of the court will be that the first and third claims of complainant's patent are void, that the second claim is valid, and that respondents infringe the second claim; and the decree will be for an injunction and accounting, with the usual order of reference.

ADAMS & WESTLAKE MANUF'G CO. v. WESTLAKE.

(Circuit Court, E. D. New York. December 16, 1892.)

1. PATENTS FOR INVENTIONS-LICENSE-INJUNCTION.

A bill by the licensee under a patent to enjoin the licensor from manufacturing the goods contrary to his agreement cannot be maintained when it appears that the licensee himself has ceased to manufacture any goods under the license.

2. SAME.

Where the owner of a patent has executed a license to a corporation, agreeing not himself to manufacture or allow the use of his name in the manufacture of goods which will come in competition with those made by the licensee, the latter cannot enjoin him from manufacturing or allowing the use of his name in the manufacture of goods which come in competition with those made by another corporation, to which the licensee has executed a license, when such other corporation is not a party to the proceedings, and when plaintiff does not allege that it is damaged by reason of the competition with its licensee.

8. CONTRACTS-OPTION TO EXTEND-EXERCISE OF OPTION.

In a contract, whereby the owner of a patent licensed a corporation to manufacture thereunder, it was stipulated that upon the request of the said corporation (naming it) the agreement might be extended for the term of five additional years "from and after January 1, 1891," upon the same

terms. Before the expiration of the original term of the contract the licensor received a letter, signed by a person describing himself as the attorney for the licensee and for another corporation, in which notice was given "that my clients elect to extend for the period of five years from December 31, 1891, their contracts with you, dated February 2, 1886." Held, that this notice was not a valid exercise of the option to extend, for it was given in behalf of an additional party, who was no party to the contract, and provided for an extension of six years, while the contract only allowed an extension for five years.

In Equity. Bill by the Adams & Westlake Manufacturing Company against William Westlake to enjoin alleged violations of a contract granting a license to manufacture under a patent owned by him. Injunction denied.

Wetmore & Jenner, for complainant.

Wing, Shoudy & Putnam, for defendant.

BENEDICT, District Judge. The original bill filed in this case by the Adams & Westlake Manufacturing Company is based upon certain license agreements between the complainant and the defendant, whereby the complainant was given the sole and exclusive license to manufacture and sell articles to be made under certain patents issued to the defendant, which agreements, by their terms, were to expire on the 1st day of January, 1891. There seems to be some mistake in the bill respecting the incorporation of the complainant. Not only the bill, but also the supplemental bill, describes the complainant as a corporation organized under the laws of the state of Illinois, whereas the contracts set forth in the bill describe the corporation as organized under the laws of the state of Michigan. This mistake is noticeable, because there is a corporation which was organized under the laws of the state of Illinois, and named the Adams & Westlake Company. But that corporation is not alluded to in the original bill, and neither the original nor the amended bill prays for any protection of that corporation by way of injunction. With that corporation the defendant has made no contract, and he swears that he did not know of the existence of such a corporation until he saw the supplemental bill herein, and never consented to the use of his name by any such named corporation. A temporary injunction was granted ex parte upon the filing of the original bill, which protected the Adams & Westlake Company, but this no doubt arose out of the curious similarity in the names adopted for these two corporations. The temporary injunction was accompanied by an order, returnable on October 25, 1889, to show cause why the injunction should not be continued during the pendency of the action. The hearing of that motion was by consent delayed until November, 1891, and was then brought on by the defendant. As the case then stood, the injunction must necessarily have been denied, for the reason that the contracts set out in the bill as the foundation of the action had at that time expired by their terms.

The complainant, however, asserting that an option given by the contracts to extend them to January 1, 1896, had been exercised, and thereby the contracts continued in force, leave was granted to file a supplemental bill. Thereupon a supplemental bill was filed, which

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