upon this ,point'the 'positivetestimony of ,Spencer. that he' never used a af!er the,' pa,ten,twas. a:pplied' for met or overcom,e ,The bill should be dIsmIssed.

, MARVIN C(J(rcuit (Jourt, D.

'u. ,GOTSCHALL.

1888.)

PATlIlNTS ll'OR INVENTIONS-NOVELTY-DRAFT EQUALIZER.

PlLtent No. 172,756; January 25,18,76, to Richard M. Marvin for a draft equ/tl· izer, used in the attachment of three horses to harvesterll and other machinery, consists of an' evimer and two leWrs pivoted; the former at its 'center, and the latter at their,ends to the tongue. ''l'he first lever is attached to the end of the evener and the single horse is attached to the em;! of the lever. The second lever is on the oppos,ite, side of the ton,,gue, and its free end is fastened to that of the evener, aud the two horse,S are, attached to its end. The first-named lever Is pivoted to tlletonguelnfront of, the second. A patent issued to E,dwinF."I'oof, December 19, 1865, was fOr an invention for the same purpose, consisting' of a shOrt evener pivoted at' one-third its length,the bne horse drawing on its long end. A lever'is attached to the same side in front of the evener, and is attached to it. On the free end of the lever the single horse is attached; "On theottier side another Jever is attached twice as long as the former, also attached to the evener, ,!Lnd to the end of t;hislever the two horses areattaGhed. ,The length, and place of pivoting these levers may be varied to give the one greater or,less',advantage over t,he others, or the first lever may be pivoted in the second for the same purpose. No use was made until he obtained his patent, and since then manu.Qf facturers have used hiscomb-lnation instead' of that of Toof, upon which the patent expired in 1882. The patent to Marvinwaeissued after a careful. com·; parieon ",ith the ',roof patent. Held, that the Marvin patent wae not void for :Want of novelty,andthat it waSD'ot anticipated by the Toof patent.

Action by Richard M. Marvin against Charles J. Gotschall for damages for the infringement of letters patent. Frackelton Jor plaintiff· . . Woods, Kingmnn, for defendant. i iSmRAs, J. On the 25th day of January, 1876,letters patent NO. 172i756 were issued to the plaintiff for an improvement in draft equalizers, which invention related to the.means 'of attaching three horses to Qiharvester'or other machine, in which the' pivot of torsion is outside the line of draft; two horses' being placed on one side oLthetongne or pole and, tme on the other, so that; the labor of ,drawing the machine should be equally distributed, while ,the side draft or torsion exercised on the tongue should be equaliied.' The means. used to accomplish these ends consist of alever or evener, markedQ.upon the drawing attached to the!pateht, which is:pivoted'at its centerpoint dn,the tongue, a lever, marked; F;pivoted at bneendtothetongue and attached 'to one end of the lever,. C, it being intended: that the single horse shall be ,attached to the lever, F, apd; a spreader attaphed: at: one,endto-the, ,tongue and

'At'Law. Action for damages for infringement of letters patent., '

a. ;d,!!tance tepermit; the two horses "W<dthereof, the marke4D beingalEio attached t() .the .6l,'ld of tbe lever,e. 'l,'he.lever, 0, spreader, D, and leYer,F"llre attached, II). the line in the order named to the tongue. That this moqe ,of at:taching horses to h!!-rvesters like machines is, useful and vah:'ttble is not . . , "The.' defense ig·thltt plaintiff's patent in all essential particulars is anticipated by one issued to Edwi,n J. TOQf, uncler ;date ofDeceml;er 19, In the specifications attached to this patentit is said: uIt is often desirable in the case of gang plows, harvesters, and other rnaqhines and vebjclfs ):laving a heavy draft, that three horses should be arranged of. each other; in whicl1 case two horses mnst ,be placed upon one side of th,Ej guide or draft-pole, while one only is placed upon the other side, which arrangemellt; by ordinary draft attachments, renders the draft very tmequal, the successful employment of horst'S in the manner proposed. My invention consists ina novel and simple arrangement of levers of suitllble proportions. whereby the draft isso applied. to a short lever or double tree, oue of the arms l?f which iR twice as long as the other, that the two horses a.rranged on one side of the guide or draft-pole draw ul?on the shorter arm of said double tree or lever, while the one hqrse upon the opposite side of tlIe draft-pole or gUide draws upon the Jongerarm of said short double tree, thus keeping a uniform and equal draft upon both sides."
The' :specifications ap,d drawing the sam,e :allOw that the arrangement proposed by Toof copsisted of. lever attached. to the tongue at a point distant one-third of the length of the lever from its end, thus making .\ever project twice as far bl;\yond the point of junetionwith the tongue on one side thuQ upon the other. In front of this lever markedB on the drawing was attached another lever m::trkedOJ projecting. on the same side with the longer arm of the lever, B, and to end of lever, 0, the single horse was: attached. On the other side of ,the tougue was att/l:ched a lever,D, length of the lever, 0, to tlie free end of which the two horses were attached. In the drawing,the levers, C and. D, are attached to the same point in the tongue. The, attachments of the several were so made that the power exerted by .one would ,be equal to that exerted by the two horsel3 on the lever, }3, thus equalizing the draft. It is I\lso stated in the specificationsthat exact proportions specified may be varied to accommodate the arrangement to' the varied powers of different horses, and also that the short lever, 0, to Which the single horse is attached,may be pivotedw the guide or draft-pole either before or behind the point at which the Jev:er, D, to which th;e two horses are attached, is pivoted thereto; pr, if it is desired to give the one horse still greater advantage over theJwo hQrses, the lever, 0, :may .have its pivoted connection in the sportll-rm of the.lever, D. , In attaching three .horses to a, harvester,two mlj.tters are in securing lI. useful mode of The first is the attachment shall be, such thl;tt none of the required t<;l\valk through or standing a:nd .tl;1e seco,J;ld is that the draft tpe .two alld th,e ,one be, that the single

816

FEDERAL REFORTER.

horse shall not be placed at a disadvantage. In accomplishing the first requirement, both Toof and the plaintiff place the single horse on the side towardS the grain. In the Toof combination the evener or lever, B, is so attached to the pole that the longer arm thereof projects upon the side towards the grain, thus giving an advantage to the single horse, it being stated that this arm should be double the length of the one projecting on the side to which the two horses are attached. In the Toof combination, it is intended that when the horses are abreast and exerting through the lever,B,the same' effect, that lever will stand at right angles with the tongue. In the Toof combination the arm, D, to which the horses are attached must be of sufficient length to give space for attaching the two horses, and it operates both as a spreader for the purpose of a"ffording this space and also as a lever operating on the short end of the lever, B. In this combination, therefore, to equalize the draft the combined effect of the combined levers, D, and the short arm of B operated by two horses must be offset by the effect of the combined levers, 0, and the long arm of B operated by the single horse. In the plaintiff's combination, the evener is attached to the tongue at its center point. The spreader to which the two horses a).'e attached does not operate asa lever, as the point of attachment of the horses and of the link or rod connected with the end of the evener are the same. The two horses operate, therefore, thr0ugh the single lever, to-wit, the onehalf of the avener, and the effect thereof is offset by the operation ofthe single horse upon the combined levers, F, and the one-half of the evener. When the horses are abreast,the evener, 0, is not at right angles with the tongue, but it is so arranged that when the spreader, D, and lever, F, are at rightangles with the tongue, the angles formed the rods connectingthe spreader, D,and the lever, F, with the ends of the evener are equal obtuse angles. And it is claimed tbat thereby an ad vantage is secured, in that if the horses, on'the respective sides, ft;lll out of line, the pole of the one falling behind upon the lever, 0, will be more nearly at right angles, and by the increase of power thus acqUired the equilibrium will be more readily restored. By reason of the pivoting the lever, F, to which the single horse is attached, to the tongue at a point in advance oftheattachment of the spreader, D, an additional advantage is secured to the single horse in preventmg the tongue from turning out of a straight line. ' . The contention on the part of the defense is that the essentials of the plaintiff's combination are clearly indicated in the specifications and drawing attached to the Toof patent, and therefore the latter anticipates the former; the rule being that, where the prior publication or description sets forth the essentials of the invention in such clear and exact terms that a person skilled in the art could, by the aid of the prior description, construct the machine or combination covered by the subsequent patent, without calling into play inventive as distinguished from mechanical skill, then the prior 'description or patent is held to have an· ticipated the subsequent patent. 1 am free to confess that I am greatly in doubt as to the true solution of the question at It is hard to

NATIONAL HAT-POUNCING MACH. CO. V. BROWN.

817

escape the conclusion that the plaintiff's .patent is merely a modification of the combination shown in the Toof patent, and if the plaintiff had not the benefit of certain presumptions in his favor the scale might incline against him. The fact, however, that he bas a patent, and that it appears that the same was issued to him after a careful comparison in the patent-office of his combination with that shown in the. Toof specifications, makes out a prima facie case in his favor, and the court is not justified in reversing the action of the patent-office unless it fairly appears that there is a lack of invention in the combination covered by the patent. In aid of this legal presumption is the fact that the Toof patent was granted in December, 1865, and it is not shown that the combination appearing in the plaintiff's patent was made use of by anyone until the plaintiff devised it in 1876, nearly 12 years later. If, according to the theory of the defense, the changes from the Toof combination to that of plaintiff are merely mechanical, and such that they would readily suggest themselves to any skilled mechanic or operatbr, why is it that the same were not more promptly brought about·? The fact of the long lapse of time after the Toof combination was made public before that of the plaintiff was discovered, tends strongly to support the claim that it required invention to produce it. The further fact that manufacturers are using the combination patented by plaintiff at the risk of suits for infringement, instead of the Toof combination, the patent on which expired in 1882, strongly points to the conclusion that they recognize a superior merit in the plaintiff's combination. Under these stances it must be held that the defendant has failed to sustain the defense of want of patentable novelty in combination, and as it is admitted that the defendant has been engaged in the sale of machines in which the plaintiff's combination is used, it follows that the plaintiff is entitled to a judgment for damages. It appeating,however, that the number of machines sold by defendant is but small, the plaintiff does not ask judgment for more than a nominal sum, and the recovery therefore will be for one dollar and coats.

NATIONAL HAT-POUNCING MAQR. SAME '11. HEDDEN

Co.

tl. BROWN.

et ale

«(}ftrcult Oourt, D. Nw JerBeg. September 25, 1888.)

1.

PATENTS FOR lNVENTIONS-ANTICIPATION-HAT,POUNCING MACHINES.

Claim 2 of letters patent No. 117,178, granted to Rudolph Eickemeyer, for 11.1. improvement in hat-pouncing machines, claiming the arrangement and com· bination ail'otating pouncing cylinder, with. a vertical supporting :IOI'n of such small size t4at the hat may be freely turned thereon, and the tip, side crown, and rim pounced in a single operation, is not anticipated by practical use by the act of pouncing in one operation on the Nougaret machine, which