is wise to keep in mind the precise nature of the patented improvement. The claim, it will be observed, is for a combination having the following elements: First, the cutter head; second, the racks directly attached to the cutter head; third, guides for both the cutter head and racks arranged perpendicularly to the plane of the elevator; fourth, pinions mounted on the guides and engaging in the racks; fifth, levers or arms for operating the pinions. All of these elements are to be constructed substantially as described, so that the depth of the cut may be directly and positively regulated by means of the levers in the manner specified.

Did it require an exercise of the inventive faculties to originate this combination? Ice elevators were concededly old; so were ice planers attached to ice elevators. The knives of ice planers, so attached, had been raised and lowered by mechanisms which are well-known equivalents for the apparatus of the claim. Every element of the claim, considered separately, was old, and the combination itself, when considered broadly, was anticipated by several prior structures. It is unnecessary to enter upon a discussion of the prior references which establish this proposition, for it was admitted by the patentee himself when he formally acquiesced in the disallowance of the broad claim and accepted the narrow claim of the patent. Royer v. Coupe, 62 O. G. 318, 13 Sup. Ct. Rep. 166. As favorable a statement as the patentee can expect regarding his contribution to the art, is that his machine is an improvement upon prior machines, in this, that his device for raising and lowering the cutter head operates with greater accuracy, ease and speed. There can be no pretense that it performs a new function or produces a new result. It may produce the old result in a better way, but this is all. If invention resides anywhere in the claim it must be in the substitution of the racks, pinions and guards for the elevating devices of the old machines. A rack and pinion has long been recognized as an equivalent for a lever, a pulley and weight and a screw. As almost every other equivalent had previously been used to raise the cutter carrying device, it is not impossible to imagine that the use of the rack and pinion might have suggested itself to a mechanic without any assistance from the prior art. But the patent to Butterfield, No. 24,076, dated May 17, 1859, shows racks and pinions used to raise and lower the cutter head of a wood-planing machine. The specification says:

"A is a sliding frame, to which is attached the knife, D. The pinion, C, raises or lowers the frame, A, regulating the contact of the knife, D, with the lumber to be planed as it passes through the machine over the rollers, E, E. * * * The knife, D, is adjusted or set by operating the pinion, C, and raising or lowering the frame, A.”

Suppose a person engaged in the business of harvesting ice, who had been using the Rockland planer, the Smith planer or the Briggs planer of 1886, had consulted an intelligent mechanic, and, after explaining to him that the raising and lowering apparatus was defective for the reasons suggested, and after placing in his hands the Butterfield patent, had asked him to remedy the defects. Would not the mechanic have seen at a glance that as racks and pinions

operated successfully to raise and lower the knife in a wood planer, they would do the same thing in an ice planer? In other words, would one who took the racks and pinions of Butterfield and utilized them to elevate and lower the knife of an ice planer be entitled to a broad monopoly? Manifestly not. Heating Co. v. Burtis, 121 U. S. 286, 7 Sup. Ct. Rep. 1034; Derby v. Thompson, 61 O. G. 1950, 13 Sup. Ct. Rep. 181; Pomace Holder Co. v. Ferguson, 119 U. S. 335, 7 Sup. Ct. Rep. 332; Fox v. Perkins, 62 O. G. 160.1 Enough has been said to demonstrate the proposition that the claim, to be sustained, must be limited to the precise mechanism described, and that, in no circumstances, can it be held to cover other improvements which adopt different though equivalent devices. See authorities cited in Hill v. Sawyer, 31 Fed. Rep. 282.

The court does not overlook the argument of popularity with the public which influenced, if it did not induce, the decision of the supreme court in favor of the barbed-wire patent. 12 Sup. Ct. Rep. 443, 143 U. S. 275. The difficulty here is, conceding that the Briggs planer has been accepted by the public to the exclusion of other planers, that it is by no means demonstrated that this popularity is due to the use of the combination of the claim involved in this suit. The defendant uses an ice planer for which two patents have been granted to George A. Birch, No. 436,492, dated September 16, 1890, and No. 447,000, dated February 24, 1891. The cutter head in defendant's planer is raised by means of endless chains passing over sprocket wheels. That these would be considered equivalents of the racks and pinions of the claim, broadly construed, need not be disputed. In the same sense they would be equivalents for the lifting devices of the prior structures. But with the limited construction made necessary by the prior art it is manifest that the defendant does not infringe. Indeed, even upon the complainant's theory, the argument to support infringement, though ingenious, is too strained and artificial to satisfy one whose only interest in the matter is to arrive at the truth. It sometimes happens, in patent litigation, that arguments which, apparently, satisfy the mind of the complainant's expert that the patent has been infringed, fail to convince the judge who tries the cause. In the defendant's planer there are no racks directly attached to the cutter head, there are no guides for both cutter head and racks and there are no pinions mounted on the guides and engaging in the racks. In short, the defendant does not infringe, unless a construction so broad as to invalidate it is placed upon the claim. The bill is dismissed.

52 Fed. Rep. 205.

SINGER MANUF'G CO. v. BRILL.

(Circuit Court of Appeals, Ninth Circuit. April 20, 1892.)

No. 49.

1. PATENTS FOR INVENTIONS-VALIDITY-SEWING-MACHINE TREADLES.

The second claim of letters patent No. 128,460, issued July 2, 1872, to A. Brill, for an improvement in sewing-machine treadles, consisting of a com bination with "a driving or fly wheel of adjustable bearings," is void for want of invention, in view of the prior state of the art.

2. SAME-APPEAL-QUESTIONS OF FACT.

The first claim of the patent covers a combination of a fly wheel having a short projection or axle at the center on one side, and on the other an arm attached to the wheel a short distance from the center, with a crank returning to the center, and a short projection or axle at the end of the crank; the wheel being held in place by pointed screws passing respectively through one of the standards of the machine, and through a bracket attached to the under side of the table, the screws fitting in conical sockets in the axle. Held, that the claim is not void upon its face, although all the elements are old, and that the question whether it produced a new and useful result was a question of fact to be determined by the jury; and their finding that the claim was valid was not reviewable on appeal, since it was supported by some legal evidence. Heald v. Rice, 104 U. S. 737; Lumber Co. v. Rodgers, 5 Sup. Ct. Rep. 501, 112 U. S. 659; and Fond du Lac Co. v. May, 11 Sup. Ct. Rep. 98, 137 U. S. 395,-distinguished.

8. SAME-APPEAL-INFRINGEMENT.

The question whether the second claim was infringed by a machine made under letters patent No. 224,710, issued February 17, 1880, to Miller & Diehl, assignors of the Singer Manufacturing Company, was also a question of fact for the jury, and their finding of infringement upon competent evidence was not reviewable on appeal.

In Error to the Circuit Court of the United States for the Northern District of California.

At Law. Action by Andrew Brill against the Singer Manufacturing Company for infringement of letters patent No. 128,460, issued July 2, 1872, to complainant, for an improvement in treadles for sewing machines. The alleged infringing machine was made under letters patent No. 224,710, issued February 17, 1880, to L. B. Miller and P. Diehl for band-wheel bearings for sewing machines, and by them assigned to the Singer Manufacturing Company of New JerThere was a verdict and judgment for plaintiff. Defendant appeals. Affirmed.

sey.

M. A. Wheaton, I. M. Kalloch, F. J. Kierce, and F. M. Husted, for plaintiff in error.

J. J. Scrivner, George W. Schell, and C. W. M. Smith, for defend ant in error.

and

Before MCKENNA KNOWLES, District Judge.

GILBERT, Circuit Judges, and

GILBERT, Circuit Judge. A. Brill brought an action at law against the Singer Manufacturing Company to recover damages for infringement of United States letters patent No. 128,460, bearing date July 2, 1872, for an improvement in sewing-machine treadles.

The answer of the defendant pleaded the general issue, and notice was given of special matters claimed to be in anticipation of the patent. The case was tried by a jury, who returned a verdict for plaintiff, fixing his damages at $10,008.30, and judgment was entered for that amount. Although the bill of exceptions contains numerous assignments of error, both as to the ruling of the court upon the testimony and the instructions to the jury, the argument of counsel for the defendant brought to the consideration of the court but two principal questions, to wit, whether the circuit court erred in not directing a verdict for the defendant-First, upon the ground that the plaintiff's patent was void for want of novelty; and, second, because there was no evidence of infringement.

The plaintiff's patent is for an improvement in sewing-machine treadles. The object of his invention, as stated in his patent, is to increase the ease of operating the machine, diminish the noise, and provide a means of readily adjusting the bearing of the driving or fly wheel, so that it may always run true and without shaking. To accomplish these results the plaintiff's improvement combines mechanical devices, none of which was new. His specifications describe a fly wheel or driving wheel having upon the one side, at the center, a short projection or axle; upon the other side an "arm," attached to the wheel a short distance from the center, with a crank returning to the center, with a short projection or axle at the end of the crank. The wheel is held in place by pointed screws, passing respectively through one of the standards of the sewing machine and through a bracket, which is attached beneath the sewing-machine table, and extends downward to a point opposite the center of the wheel. The wheel has conical sockets, in which the points of the screws are inserted and adjusted. The claims of the patent are two. The first is for a combination including as separate and distinct elements the wheel, "C," arm, "E," bracket, "B," standard, "H," and screws, "G, G;" the second claim is for the combination with "a driving or fly wheel of adjustable bearings."

On the trial the defendant put in evidence several prior patents, claimed to be anticipatory of the plaintiff's patent, and also as showing the state of the art in that class of machinery at and prior to the date of plaintiff's invention. One of these prior patents shows in the drawings a combination of a fly wheel and crank shaft and adjustable screws passing through the standards at either end of the machine. It is a patent for a sewing-machine brake, and its purpose is to make it impossible for the fly wheel to turn backward. It contains no description of the adjustable screws, and no claim is made for their use in combination or otherwise. The drawings, however, plainly show that the shaft is supported and turns upon screw points similar to those employed by plaintiff. Another of these older patents is for a turning lathe, in which a combination of the fly wheel with a crank shaft and adjustable screws upon the ends of the shaft plainly appears. A third is for a fly wheel with shortened axle, one end of which is supported by a bracket, but no adjustable screws are employed. Owing to the existence of these prior patents, and the state of the art as evidenced by them, the

plaintiff's second claim, for a combination with "a driving or fly wheel of adjustable bearings," under his own admissions, is clearly without merit. The validity of the first claim depends upon whether or not the plaintiff brought together the mechanical devices which he claims in a new and useful manner, or in a shape or form which produced results different from those which had been produced before. This question was submitted to the jury under proper instructions from the court, and we have not the power to disturb their verdict.

It is urged on behalf of the defendant that the court below should have instructed the jury to return a verdict for the defendant, and that the refusal so to instruct is error for which this court may reverse the judgment. Since the adoption of the seventh amendment to the constitution, declaring that no fact tried by a jury shall be otherwise re-examined in any court of the United States than according to the rules of the common law, the supreme court has repeatedly affirmed the doctrine that upon writ of error the federal courts are confined to the consideration of exceptions to the evidence and to the instructions given or refused to the jury, and that they have no concern with questions of fact, or the weight to be given to the evidence which was properly admitted. Parsons v. Bedford, 3 Pet. 436; Barreda v. Silsbee, 21 How. 167; Railroad Co. v. Fraloff, 100 U. S. 31; Insurance Co. v. Ward, 140 U. S. 91, 11 Sup. Ct. Rep. 720.

Where there is any evidence whatever to go to the jury upon an issue of fact, the refusal of the court to instruct the jury to return a verdict for the defendant is not reviewable in this court. There is nothing in the case before the court to make it an exception to the rule. The defendant relies upon Heald v. Rice, 104 U. S. 737; Lumber Co. v. Rodgers, 112 U. S. 659, 5 Sup. Ct. Rep. 501; and Fond du Lac Co. v. May, 137 U. S. 395, 11 Sup. Ct. Rep. 98,-as sustaining a contrary doctrine. In Heald v. Rice the action was brought for alleged infringement of reissued letters patent. One of the defenses relied upon was that the reissued letters described an invention different from that covered by the original patent. This was a question of law for the court, to be determined by a comparison of the two instruments. The decision of the supreme court went no further than to hold that the reissued letters patent should have been held to be void, and that the jury should have been instructed to return a verdict for defendant. To the same effect was Lumber Co. v. Rodgers. In the case of Fond du Lac Co. v. May the supreme court expressed the opinion that the court below should have directed a verdict for the defendant, and that the judgment must be reversed, but expressly based the decision upon the ground that the patent was void. The patent in that case was for "an improvement in the construction and operation of prisons." The invention was claimed to consist in the interposition of a grating between the jailer and the prisoner at every stage of opening and closing the cell doors. Every element of the combination was admitted to be old. The court held, upon the plaintiff's own testimony, that the patent was void, for the reason that the interposed grating was made part of the combina