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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 du cided the question wlich 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 de. cree now in force in the seventh circuit, confict 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 amainst the strength of the plowman, and he was obliged, in order to change the dirertion of the plow, frequently to overcome the force of the spring, which becaune 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 bean, 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, befor 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 be 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
Cases. Of these 19, counsel for respondent made no allusion to 8; and of the 11 remaining there are only 3 upon which counsel rely to show an anticipation of that feature of complainant's patent which Judge Blodgett held to be a valid patentable discovery, namely, the arrangement of the tubular bearing in connection with the rigid arn and attached spring and the upright bearing, so that the force of the spring and the lateral spring of the beam would co-operate without conflicting. The first of the three patents is Chapman's patent for a horse-rake, patented in 1868. In this patent the teeth of the rake are carried, not on the axle, but on a shaft parallel to the axle at the rear of the vehicle, and to a projecting arm of this shaft is attached a spring secured at the other end to the frame of the machine; the spring acting on the projection, and tending to list the teeth from the ground. The second is the Plagge patent for an improved rail guide for guiding wagons so that the wagon may be kept on the rails if it happens to be running on a road where rails are laid. The patent shows an ordinary four-wheeled wagon, having guide rollers at the ends of the arms, adapted to be depressed by the driver's fooand these guide rollers serve to keep the wagon on the track. They are lifted from their position at the side of the track by a weight, and in some cases by a spring, and are held up by these counterbalancing forces until the driver places his foot on the treadle, and overcomes the weight or spring, and by means of the lever forces the rollers down. The Wheeler patent is for a harvester rake for gathering in grain, with movable rake teeth to move the grain over a wide grain platform. The rake mechanism and the platform are back and at one side of the main frame, and are very heavy. They are connected with the main frame by a tubular bearing or pipe box, embracing the axle, and this pipe box has a projection upon which, indirectly, is exerted the force of the draught of the team, so as to slightly lift and in a measure neutralize the weight of the rear portion of the machine.
It is to be first noted, with respect to all three of these devices, that they are for purposes very different from those of the cultivator. In each of them the action of the dragged body is automatic, while in the patent at bar it is operated by hand. But, most of all, in no one of them was there any lateral movement required in the part to be lifted or depressed, with which movement an application of the lifting force at a point back of the tubular bearing would interfere. In other words, they none of them show the combination of the lateral motion and the vertical lifting motion in such a way as not to conflict. The contention on behalf of respondents seems to be that if they can show that, in any machine of any kind a counterbalancing spring, weight, or draft has been applied upon a tubular bearing on the side opposite to that at which the body to be lifted or depressed is attached, they have shown an anticipation of the complainant's patent. I cannot agree with this. The complainant's patent is essentially for a combiliation. It is not for any particular part, or for any particular two parts. It is not the tubular bearing with the rigid arm and spring alone. It is the tubular bearing with the rigid arm and spring, in connection with an
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 inotion 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 Bufard 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, pipe. shaped 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
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,