sion of the spiral spring being regulated by raising or lowering the washer and pin at its lower end by means of several holes in the rod; for these two springs, and their corresponding means of adjustment, are simple mechanical equivalents.

8. SAME-NOVELTY.

The third claim of the Brown patent, covering the pipe box, having the longitudinal ribs, combined with the stirrup, having corresponding grooves and a clamping device, is void for want of novelty.

In Equity. Bill by the Brown Manufacturing Company against P. P. Mast & Co. for infringement of letters patent No. 190,816, issued May 15, 1877, to William P. Brown, for a cultivator. The alleged infringing machine was made under letters patent No. 260,447, issued July 4, 1882, to D. Berlew and M. L. Kissel. Decree for complain

ant.

Geo. H. Christy, for complainant.

Wood & Boyd and H. A. Toulmin, for respondents.

TAFT, Circuit Judge. This is a suit in equity, brought for the infringement of letters patent No. 190,816, granted to William P. Brown, and duly assigned to the complainant herein, the Brown Manufacturing Company. The defenses set up in the answer are want of novelty, absence of patentable invention in the patented device, and noninfringement. The patent sued on is for an improvement in the couplings of corn cultivators. These machines are for the purpose of loosening and keeping free from weeds the soil between the rows of growing corn. Their general form has long been known. They consist of an arched or crank axle, arched high enough to pass over the row of corn, connected with a tongue, and mounted on a single pair of wheels. To the axle, inside the wheels, are attached-one on each side-the forward ends of two beams or bars which carry the cultivators. These are very small, light plows, arranged in gangs of two. The attachment of the beam to the axle is usually made by a tubular bearing or pipe box, loosely, embracing the axle, and securing free vertical motion of the beam, while between the pipe box and the beam end proper, and connecting them, is generally arranged a head having a bearing at right angles to the pipe box, by which lateral or horizontal motion is also given to the beam. Both vertical and lateral movements of the cultivators are necessary to successful corn cultivation. The plow beams are manipulated by hand; the operator walking behind, as with the ordinary plow, giving a hand to the handle on each beam. and hanging the reins about his neck or body. This was the general description of the Stover machine, patented in 1870, and referred to in the patent sued on.

To relieve the operator as much as possible from the labor of lifting the heavy cultivator beams, Brown, in a patent of 1872, applied a lifting spring to each of them, at a point halfway back from the axle, securing the other end of the spring to the fixed frame of the machine above. The obvious difficulty in the operation of such a derice was that the constant lateral motion of the beams out of the vertical, recuired in practical tilling, would be resisted by the lifting force of the spring. In the patent in suit, this difficulty is entirely

cured by applying the spring to a rigid arm of the tubular bearing in front of the vertical pivot, on which the beam swings laterally. In this way the pulling and lifting power of the spring never interferes with the lateral motion of the beam. They co-operate, but do not conflict. This is what counsel for complainant contends is Brown's invention and real improvement. Brown suggested that, instead of spring power, counterbalancing weights, or a portion of the draught of the horses, might be also applied to the pipe box arm; and he shows a projection from the pipe box in his drawings and specifications by which the draught may be utilized to lift or depress the plow beams. The alleged infringement here, however, is only the use of spring power. The patentee described the application of the spring as follows:

"To render the manipulation of the plows or cultivators easy, I provide an arrangement whereby either springs, weights, or the draught power may be utilized in sustaining a part of the weight of the said cultivators when they are lifted from the ground to be hung up or shifted laterally. In accomplishing this, I construct the pipe box with a hooked arm, M, and arrange a stiff spring, N, of metal or rubber, upon the main frame above, so as to engage, by means of a loop, with the end of the arm, M, to rock the pipe box; and as the cultivator beam in the rear is rigidly attached to the pipe box by the stirrup or the sleeve, and its screw bolt, the spring has the tendency to rock the pipe box, and assist the driver to lift the cultivators."

M

The three claims of the patent are as follows:

"(1) The pipe box, provided with a projection adapted to co-operate with a spring, weight, or the draught to rock the said pipe box against or with the weight of the rear cultivators or plows, substantially as and for the purpose described. (2) The combination, with the crank axle and the gangs or plows, of the pipe box, having arm, M, the spring, N, attached to the main frame, the head, I, and the stirrup, G, or its equivalent, having brackets, H, and pivot bolt, A, and fastened to the pipe box, substantially as and for the purpose described. (3) The pipe box, E, having longitudinal ribs, combined with the stirrup, G, having corresponding grooves and a clamping device, substantially as described."

The validity of this patent, and of the several claims under it, was fully considered by Judge Blodgett, in the seventh circuit, in the cases of Manufacturing Co. v. Deere, 21 Fed. Rep. 709, and Same v. Buford, Id. 714. Judge Blodgett, in the Deere Case, in 1884, held that the first claim of the patent was substantially for a combination, the new and patentable feature of which consisted in the application of a spring to the arm of the pipe box so as to assist the operator in lifting the gang plows, and at the same time not interfere with the lateral motion of the gang plows on the upright bearing just back of the pipe box. In the case of Manufacturing Co. v. Deere, only the first claim of the patent was involved and considered. In the case of Manufacturing Co. v. Buford, 21 Fed. Rep. 714, the first and the second claims of the patent were involved, and passed upon, and in that case Judge Blodgett sustained the second claim for a combination as valid, and granted an injunction and an account. The first claim of the patent again came before the same judge in the case of Brown Manuf'g Co. v. Bradley Manuf'g Co., (in June, 1892,) 51 Fed. Rep. 226. The argument in that case, and the reconsideration of the first claim, led the judge to order a rehearing in the Deere Case, and to reverse the former decision. 51 Fed. Rep. 229. In these two cases the judge holds that the first claim of the patent is not for a combination, but for a single part, namely, a pipe box provided with a projection adapted to co-operate with a spring, etc.; that the only part claimed is the pipe box, provided with a projec tion capable of being used with a spring; and that it could not be so construed as to make it a combination of the pipe box provided with a projection and a spring, together with the other parts of a cultivator or plow. He further found that a pipe box provided with a projection adapted to co-operate with a spring was found in the patent of Haslup, July 11, 1872, where there was a sleeve or pipe box working upon a crank axle for the purpose of attaching the plows thereto, and of enabling the plows to be rocked upon the axle by the hand of the driver, pressed upon a lever projection rigidly attached to the pipe box, and extending upwards to the driver's seat. The first claim was therefore held to be invalid, and the bill dismissed. The second claim, however, was not passed upon either in the Bradley opinion or in the second opinion in the Deere Case.

In considering the effect of a decision in another circuit upon the validity and infringement of a patent, Mr. Justice Brown, in the case of Searls v. Worden, 11 Fed. Rep. 501, spoke as follows:

"Upon general questions of law, we listen to the opinions of our brother judges with deference, and with a desire to conform to them, if we can conscientiously do so, but we do not treat them as conclusive. In patent causes, however, where the same issue has been passed upon by the circuit court sitting in another district, it is only in case of clear mistake of law or fact, of newly-discovered testimony, or upon some question not considered by such court, that we feel at liberty to review its findings. A division of opinion upon the same issue might give rise to litigation in a dozen different districts, to conflicting decrees, and to interminable contests between rival patentees. In case the defeated party is dissatisfied with the first decision, it is his right to resort to the appellate court, where a final decision can be obtained, which all inferior courts are bound to respect. The subject was so elaborately discussed by the late Judge Emmons, and the authorities so fuly collated in Vulcanite Co. v.

Willis, 1 Flip. 388, that it is unnecessary to consider it further. We are content simply to announce our adherence to his views."

See, also, Hancock Inspirator Co. v. Regester, 35 Fed. Rep. 61; Chemical Works v. Hecker, 2 Ban. & A. 351; Purifier Co. v. Christian, 4 Dill. 448; Celluloid Manuf'g Co. v. Zylonite Brush & Comb Co., 27 Fed. Rep. 291.

It is clear from these authorities that, if Judge Blodgett has decided the question which is now submitted to this court, both comity and public convenience require that this court shall follow him in his conclusion, unless it be clear that new evidence has been adduced here which was not considered by him, and which, in the opinion of this court, ought to change the result. With reference to the validity of the first claim under the patent, the question is one simply of construction. It is a question of law. Whether the claim is to be considered a claim for a part or a claim for a combination is doubtful. If it is only for a part, counsel for complainant concedes that it is invalid. Whatever might be my view, were the question one of first impression, I am clear that it is now my duty to follow Judge Blodgett's construction, and hold that the claim is for a part only.

Complainant's counsel admits the rule of comity, but contends that it has no application here, because Judge Blodgett has rendered two opinions, and that it is for this court to say which one it will follow. This last opinion is the final conclusion of Judge Blodgett, and it is that which comity requires me to follow. That is the decree now in force in the seventh circuit, conflict with which by act of this court should be avoided. Instead of weakening the second opinion as authority, the fact that the learned judge had previously reached a different conclusion, and announced it in a printed opinion, is evidence that the second opinion was only reached after full consideration. The first claim is disposed of. If Judge Blodgett's construction of it is incorrect, then, on appeal, either from his decree or mine, the rights of the complainant may be restored to him.

We now come to the second claim of the patent. This is a combination claim, which includes the combination of the free lateral movement of the cultivator beam, in co-operation with the lifting power of the spring, in such a way that the two do not conflict. This feature of the Brown patented device, as I have said, Judge Blodgett held to be a new, useful, and patentable discovery, in the first decision in the Deere Case, and on this ground sustained the validity of the second claim in the Buford Case. He has said nothing in his second opinion in the Deere Case to show that, in respect to the patentable character of what he found to be Brown's real improvement, he has at all changed his mind. The second Deere decision rested solely on the narrowness of the first claim, which, construed as he held it must be, did not include Brown's real improvement. The Buford Case, therefore, stands as a decision of a co-ordinate circuit court upholding the validity of the second claim of the patent in suit; and, unless it can be made to appear that there is before this court evidence not presented to and considered by Judge Blodgett in the Deere and Buford Cases, the

same rule of comity invoked by the respondents against the validity of the first claim requires me to sustain the validity of the second. Judge Blodgett said, in deciding the Deere Case, in 21 Fed. Rep. 709--711:

"I do not find in any of the patents cited any suggestion of the peculiar auxiliary means of assistance for raising the rear of the plows out of the ground, such as is shown in Brown's device in his patent. It is also true that the Haslup patent of 1872 shows a pipe box on the axle, with an arm or lever, O, extending upward from the pipe box, by which the driver could raise the plows from the ground; but that was a riding cultivator, and the function of the lever was different from that of Brown's projection. So, also, it appears from the proofs that prior to the patent now under consideration one or more devices had been patented, or put in public use, for using a spring or other equivalent force to aid in raising the rear of the plows out of the ground; but the attachment for that purpose was made upon the beam or handle, back of the joint where the plow was connected, and was practically of but little use, because, as the plows swayed out of the line of draught in either direction for the purpose of following a crooked row of plants, or of avoiding plants out of the line, or for the purpose of avoiding an obstruction, the spring worked against the strength of the plowman, and he was obliged, in order to change the direction of the plow, frequently to overcome the force of the spring, which became a serious objection in practical tilling. This patentee, however, applied the lifting lever by which the plows were lifted out of the ground practically to the end of the plow beam, because the projection, M, and the plow beam, being both, for the purpose of vertical motion, rigidly attached to the pipe box, the rocking of the pipe box by the lever or projection, M, tilted or lifted the rear of the plows, without in any manner interfering with the side or horizontal action of the plows. It is argued that the attachment of the lifting force to the end of the plow beam by means of the lever, M, has in it nothing new or patentable, when we consider that the lifting force of the spring or weight had, before this inventor's present patent, been applied to a point behind the end of the beam; but this, it strikes me, is one of the cases where the change in the location of the lever makes this device a success where prior efforts in the same direction had been failures. The fact that not only the defendant in this case, but other large manufacturers of cultivators, have at once adopted, substantially, the same auxiliary lifting device shown in the complainant's patent, is evidence of the popular acceptance of this as the practical solution of many of the difficulties which had been encountered in the attempt to use the older devices, and is such a change and improvement as required more than mere mechanical skill, and brings this device fairly within the domain of the patent law."

Again he says:

"No one was instructed by either the Stover or the Brown device of 1872 to apply the lifting device at the end of the plow by means of a lever projecting upwards from the end of the beam; and the fact that these older devices, which it is now claimed were susceptible of being modified by mere mechanical skill into a machine in its operation and effect like that shown by complainant's patent, rested without any modification until the present patent was promulgated, is quite conclusive proof to me that it required something more than mere mechanical skill to produce what is shown in this patent. By the patent now under consideration the patentee made an improvement in advance of what he had done by his patent in 1872, and, immediately upon the advantages of this device being exhibited to the public, the defendant and other manufacturers have seized upon it as meeting a felt want, and assumed to appropriate it to their own use."

Judge Blodgett has said nothing since he used the foregoing language to indicate that he is not still of the same opinion. Thirty-six patents, have been introduced in evidence, of which 19 were not presented to the consideration of Judge Blodgett in the Deere and Buford