BRUSR ELECTRIC CO.

v.

WESTERN ELECTRIC LIGHT &: POWER CO.

533

should prevail between the federal courts in cases involving the same patents; but after mature and careful consideration I feel constrained to say tbat my reading of the prior art satisfies me that Mr. Gray in effect invented nothing. He merely adopted well-known equivalents for the mechanism known and shown in the prior art for producing the same adjustments which are secured by his machine, and operating in substantially the same way. And I do not see that Gray, from the proof before me, has any right to be claimed as an original inventor, and entitled to invoke the doctrine of equivalents in regard to his mechanism in any respect. He came into the art at so late a date, and when others had covered the same ground which he attempted to cover, that, if his patents are to be sustained at all, they are to be 8uetained only for the special devices which he shows, and which I am clear the defendant in this case does not infringe. I may further say upon this point that the, rule of comity perhaps ought not to be invoked by the complainant here to the same extent as in most cases where it has been applied, for the r,eason that in the case of Thi3 ComplaiMnt v. Freeman,! heard before the learned district judge of the western district of Wisconsin several years since, that court, upon the testimony which is now before this court, in these French and English patents, held that Gray's patent was invalid for want of novelty, and dismissed that case; so that WE: have here a decision in this circuit against the complainant pressing with equal binding 1'orce upon us as does the decision relied upon by the complainant from the eastern district of Michigan. The bill is dismissed for want of equity.
ON REHEARING.

(JUly 14, 1890.)

Now comes the defendant by its solicitor, and the court, having considered the complainant's motion for a rehearing herein, overrules the same.
BLODGETT,

J.

BRUSH ELECTRIC

Co.

'I).

WESTERN ELECTRIC LIGHT &; POWER

Co.

(Circuit Oourt; N. D. 01li£o.

PATENTS FOR INVENTIONS-INll'RINGBMENT.

15, 1890.)

, Letten patent No. to Charles F. Brnsh for an electrio lamp, are valid,and cover all forms of mechanlsm constructed to separate two or more pairs or sets of carbons dissimultaneously or successively, so that the light is estsblished between the members of but one pair or set at a time, while the members of the remaining .pair are kept separate. The word "dissimultaneous, "used in his claims, refers to that separation which results in the production of a single arc. This patent is infringed by patent No. 418,7Q8 to Charles E. SCribner for an electric arc-lamp, notWithstanding tbat the primary or initial separation of the two pairs of carbons ,ip the Scribner lamp is simultaneous.' , -{SyUab'UII by the Oourt.) .
1 No

opinion was filed.

'("':,'; .d"t .;','

,i

.. r " , . : ',' " billin equity to recover damagel3for the infringem('nt of MtEml iSslled"Septell1bet 2, 1879; to F. 13rusl,1 for an electric lamP, ,In the introductiQp. to his he stlites th.at his invention;" rel,ates to electric lamps or light regulators, and it lamp havingtwQ or 1DPre srtsof (larbulls adapted by any suitable succesl;lively; that is, one set after a'JOther.: .' a'lamp having two pI' of carbons, each set adapted to movp Inflependehtly In llUrnln,g and feedmg. "(3) ItJalarnp having·t\vo or more sets of carbons, adapted each to have indE-pendent. movements, and each operatedand;inflllenced by' the same eleetric,C\I,,'rent. , I" ,,. (4) a lamp Or more' sets of carbons, said· 'carbons, by any sU,ita\JI,l:'r bei Prdapted to., be ,separated dissim ultanepusly, whereby thevoltMc ll.r,c between,but ill a smgle set of carbons, isprpduct'd." this result: he shows a or mechanism of a.lifter, D, is aprotninentfeature. This litter has a mOVE'ment by ,magnetip attractioll due to the current operating the beinp;raised lifts the upper or positive carbon of each set, not but .one. after the other, in such manner that the arc is ,between .carbons last separated, which burn u,ntilthey are con:when the.cnrboll qrst raised is automatically lowered, and the arc formed between the Qarbons first separated, which also burns until t.hesel:,\l:6;PQQsl;iQ.1ed. By inultiplyingthe,setsof carbons this process may be continued until the last ones nre consumed and the light thus indefinitely prolonged. While mecht,ujlism is elaborately explained and described, the patentee is careful not ,to limit himself to that or any other, ,a9d .in bis, says " "I do not iri JlPE>ci/Jc method or mechanism for"liltlng. ,hoving', or sepai'atinlol' the carbon pumts or their: holders. so long as the peculiar functions and results hereinafter to 1Ie specified shall be accomplished. " The claims alleged to be infringed were the first six, which are as follows: "(1), In liD e.lectric lamp, two or more pftirs qr sC"ts .ot,carbons, i,n combination wi,th ',mechanisJn' co'nstructE>d to 'separate' saillpilirs dissirollltaneously or su('cessively, sllbstantially liS d"scribpd and for th., purpose sprcified. "(2) In an'l'lpctriC'la'lll,p.,twour llIoraf1airs orsets'ofell'buDs, in cl)mbination with mechanism eOlHltrllctl'd to separate said pairs dissimllltalleollsly or successively, and l'stall}jsh the electric light bet w eenthe members of bllt one pah', .tll-wit.,tll'tl,pliir whilfl the lnembrrRot' the remaining pair otlmirsltre'rn14iutaiut'llin a' sepal'atp sllown · .. (a)M' Wttl,c moretlu.n on.e pair or, carbons, the 6aidcar.bqn aetsor paira: of mechanism .eonstructed to impart to tbellllnllependent an.d' disllim Si!lial'llting,1U'I.d f¢pding movements,:Wherellr:the elE'ctr'iC,bght· wlIJ ,l:!e membel's of bilt' (m'e ,If shUt pall'S or set's at a time, whiJlkthe members:' of the rem:tining pair 01' pairs are maintained i,n a separated r..)atlOn, slllJStltntiaJly as shown., , "(4) In a s,ngle elpctl'ill lamp, two or more pail'S or sets of cal'bons all placed ill circuit, so that when their membel's are in contact the cU1'nmt may

.Ip.EI}Qity.

,1'

BRUSH ELECTRIC CO.tI.W.ESTElHIEI..ECTRICIiiGBT & POWER CO.

535

pass freely thrlHlgh ,all said 'pairs ialike. in' combination with, mechanIsm constructed t? sepanl,te said pairsdisi:limultaneouslyor successively. snbstantially as and fQr the pnrpose shown., . .. (5) In an electric lamp wherein ,more or pair of carbons are employed. the lifter, D, or its equivalent, mQvedby:any suitable means, and constructed to Rct upon said carbons or carbon-holders dissimultaneouslyor I!uccessively, subB'tautiallyasandfor the purpose shown· .. (6) In an electric lamp whereby more than one pair or set of carbons are clamp, C, or its ;equivaJen t, for each pair or set, said clam p, C. adapted to grasp and move sai\lcarhons or carbon·holders dissimulLaneously or successively, sUhstantiaJIy al;l and for the purpose shown."

COmplainant was the assignee of this patent from Brush. The answer set \lP patent/!, which were claimed to be anticipations, arid danied irifriugement in general terms., The case was argued before Judp;e RICKS of the northern district of Ohio and Judge BROWN of the eastern . district of Michigan. L. L. Leggett and H, A. Seymour, for complainant. John W; Munda1J, Ephraim Batnniny, and G6OI'ge P. Barton, for defendant/!·. BROWN, J. ' The progress of the art of .electrical illumination has marked by successive and well-defined steps from the early experiments of Sir Humphrey DiWy. in 1810, to ·its present perfected condition. Sir ;Humphrey seems to have succeeded, with the aid ofa galvanic battery .of2,OOO cells. in producing an are-shaped light between two pencilsof charcoal; but, to the.rapid combustion of his charcoal point/!, to the want of proper mechanism for adjusting his electrodes to cOlupensate Jor Wflar, alild. to the great cosL of his battery, his experiments were of no practical or commercial value. The first of these obstacles was removed in 1844· by Foucault, who substituted for the soft charcoal points of Davy the hard gas carbon electrodes noW' in use; the second, in, 1848. by Archereau, who devised an imperfecfand clumsy regulating device, by which two vertical carbon electrodes were maintained in the same relative position,. notwithstanding their,' com bustion;" and the last in 1870 by the invention of the dynamo-electric machine of Gramme, wherein a, current of sufficient strength to render electric lighting commercially practicable is generated at a comparatively small expense. These discoveries, and in' particular the dynamo of Gramme, opened up to electrical experimentalist/! new and ul1suspectedpossibilities of usefulness, and henceforward inventions multiplied with great rapidity. Most of them, however, were directed to improvements in the material of which the carbQns were made, in the brilliancy and steadiness of the light itself, to improvements upon the dynamos, and in the mechanism by which the carbons were held in the same relative position during the procesS of combustion. One difficulty, however, remained to be overcome. The electrical resistance of the carbons was such as to preclude the employment of very long rods. and their consumption by burning away was hastenecl by their adjacent ends beooming highly heated to a conSiqerllble distance from the arc. ThiS' 'difficulty was partially reme-

been

536

FEDERAL REPORTER,

vol. 43.

the carbon ,pencils with a thin film of copper, electrically,deposited thereon, by which the electrical resistance of the carbons was materially decrl;)ased, much longer rods were possible, and the light maintained continuously for from 6 to 10 hours. This was insufficient, however, for all-night lighting; and necessitated the extinguishment of the lamp and a renewal of the carbons at some time during the night, in order.to keep up a continuous light. To obviate this inconvenience, Mr. Brush invented the device embodied in the patent in suit, the most prominent feature of which is the use of double sets of carbons in such manner that when the first pair is consumeq the arc is automatically established between the second pair, and until they are consumed. This is accomplished by the use is of certain helices, E, which, when the current is turned on, are energized and operBted to raise a lifter, D. This lifter, acting upon two ring clamps, CC, surrounding the carbon-holders, tilts them, and causes them to and lift the two carbon-holders, DD. not at exactly the same instant, but in a q\lick but perceptible succession,whereby the arc is established between the pair last separated, and held there until they are consumed, (the first pair being meanwhile retained in their position,) when the first pail' autom/l:tically descend and take their place. By this means a steady light can be kept up, without any manual interference whatever, for a period of fronl 14 to 20 hours. This was certainly an important discovery, and even if his patent be not "pioneer" in the strict sense of the term, it is such a decided step in advance of anything which preceded it that defendants' experts, Warner and Kellogg, are constrained to admit, not only. tbat ,Brush was the fil'l!t to invent the principle of substitution in his double,carbon lamp;but :that the Western Electric Company could not successfully compete with tbe companies using his patent in furnishing all-night electric lighting plants unless it could provide double carbon lamps toits customers. Suchheing the undisputed facts, we think that complainantjs entitled to the favorable consideration of the court, and his patent to,aliberal construct:ion,-a construction which, so far as consonant .with the language the patentee has himself chosen, will protect him in what"he has actually invented. None of the devices set up in the answer contain the principle of the Brush patent; none of them are even worthy of being considered as anticipations, except the American patents to Day of 1874, Nos. 147 ,827 and 156,015; and the French patent to Denayrpuse of 1877, No,. 3,J.70. The Day patents, upon lihich defendants chiefly rely as an anticipation of the Brush patent, as con,strued by the complainant, exhibit a single carbon lamp. having two of one attached to each carbon-holder, so that in the carbons operation oqhelamp both branches of the carbon-holder are raised and lowered simultanooU8ly. While the upper and lower carbons are iu contact, the current is divided between them, but, when separated to form the are, thoup;h the separation of both sets occurs at the same instant, owing' to the difference in resistance of the carbons only a singharc is formed. When this arc has burned for a few minutes, the arc will shift to the other pair of cal'bons, remaining until they arc so far con-

BRUSH ELECTRIO CO. t1. WES'l'ERN ELECTRIC LIGHT &: POWER CO.

537

surned as to require additional feeding, when the arc is shifted back to the first pair, and they are thus caused to burn alternately, instead of successively, as in the Brush patent. This alternation is of course owing to the fact that both sets of carbons are separated simultaneously, and not in succession, as in the Brush patent, in which one is held in reserve until the first pair is wholly consumed. The Day lamp, however, not only lacks the non-coincidence in the separation of the carbons, which is the prominent feature of the Brush patent, but in practice it never seems to have been a success. The shifting of the light from one pair o,f. carbons to the other took place every few minutes, alid was attended each time by a .momentary extinguishment of the light, which occurred so frequently that it was not considered of any commercial value; and during the 16 years it has been in existence but two lamps seem ever to have been constructed in accordance with the patent, one of which was tested in 1879 and proved a failure, and the other of which was made in 1887 for the purpose of being used as an exhibit in this case. Not bnly was the light fluctuating and unsteady, but the idle pair of carbons so near the pair in operation threw a broad shadow back of them, which was transferred from one side of the lamp to the o·ther as the aro shifted, and seriously impaired the commercial value of the lamp. The French patent of Denayrouse, it is true, contained the principal feature of the Brush patent in the successive combustion of two pairs of carbons, but by means so different that they can by no stretch of construction be regarded as mechanical equivalents. The invention has no application to carbons placed end to end, as in the American patents, but to those lying side by side, as in the patent of Jablochkoff, who appf'ars to have originated this arrangement. It is in fact a duplication of the Jablocbkoff candle, with the addition of" An electric key for making and breaking contact with the electric current for each such candle. This key is worked by one arm of a. lever, the other arm of which has a stud pressed by a spring against the candle, which is bnrning, near its lower end. When this candle is bllrned nearly down. so that the stud of the lever is no longer supported by the solid matter of the candle or carbon, the lever and key are moved by the spring, and contact is thus broken with the circuit for the nearly consumed candle. and is made with the circuit for a. fresh can4le, which is thereby ki;ndled, and thus successively, as candle a.fter candle becomes consumed, fresh candles are kindled automatically to take their place. " But asthis patent. is not seriously claimed as an anticipation, no further reference to it will be made. The main questions in this case turn upon the proper construction of the Brush patent. While the claims are undoubtedly broad, they ought not to be interpreted as for a function or result, since there is nothing novel in substituting one pair of carbons for another, and thus securing a successive combustion of two or more pairs. It was done long before the Brush patent, and may still be done by manual interference, by replacing one set of carbons with another, or by any mechanism which does not involve the dissimultaneous and dissimultaneously separating and feeding movement. What the claims purport to covet are briefly all forms of mechanism constructed to separate two

53,8
or or S,etilof ,yllJ'bons. (a word coined for the but,rell.<!ily undeJ;'stopd},9r successively, in order that the light ,between of but one paiJ;' or s.et'at a time, of the ,remailling P/l.U; Are maintained in a separate relatip!l..,JMsiOla1l1llld, by the the words "dissimu1six claims of the patent, to the the very punctv,m temporis, ofthe separation of the And that as the SerUmer patent, under w.hich the defendinitial siplUltaneous separation of the ants Are, qp:erating, provides for is no infringement" thougb thfl light is .formed qetween but ,t11e oth(ilrbeing held in a,wait theirqO!lsumption. If thi.e!, (}ontentioll be cQrxect, then,it necessarily, foU()\Vs that Brush, who is ,to ,b,e the actual invel1torof: the d<;>Uble carbon, and whoJ;ll e:lf:per:t, Mr. frankly admits (page 243) to be jusUy. regarded as done more than any one elSlil to make electric arC lighting on a a practical sUHcess, secured by his patent wholly immaterial and useless feature,,to theW;orJd was really valuable in his invention. In determjpingth.e of his claims" two ,considerations ought to be kept,prOlPipently in view: (1) declared object of the in, ventol; (2).thlilRtate pf thel'rt. .. . . intended to. secure for himself ,all he now claims, is evi: dent uppn most reading of his patent. In, tbe introduction he says .that his to "Fir"t.in,l\,}amp havillg two or more sets otearbons. adapted by any suitable,meanlll.tQ:qumsuccessivel,Y; that,is, Qne set after anoth!3r. Second, in a ,twp or m()re set!J of carbons, each !let adapted to move independ. ently'iilbilhiing and , Third. in alamphaving two or more sets of carbons, adapted each to have independent movements, and each operated and inlluenced by tOOsam&electl'ic current. Fourth, in a.lamp having two or more sets of'ilal'bon!1,' adapted each to have indt'pendent lilovements, and each optirafied,'RndinBueIiced by the'same electl'ic current; saidearlJons, by any sliitalJhimeans. 'bein'g ,adapted to be separated dissimultaneously, whereby theV'oIt&'ic'>".:to)between a single set of carbons isproduced. h ,
; .f ' ::

,I,:

;-,

la.stclause apparently for the very purpose of removing any doubt 8S to the obje<:tiof the non-coincident separations of the carbons. .Again 'he says:"; ..., " do not degree limit myself to any specific method or mechanism for liftinK.' moVing,: br separating the carbon points' or theil' holders, so long 3S the peculiar1functionsand,t'esults' bereinafterto be specified shall be aceomplished·· !!'".*:* This functionofdissimultaneous action upon the car:whereby Qpe,set of carbons: separated in advance of tl!e, the feature of my p.res'ent IUventlon."1 , , . ';1 .' " , ,These peculiar functions, and, ,results are subsequently described asfo1lows: '. "One pair' is separated before the other; it matters not how little nor how short a time befOl'e. This separation breaksthecunent at that poiilt;and tile electric i" nOw, tlnpughth e pair of carbons,

BRUSH ELECTRIC

WESTERN

illLECTRici LIGHT &: POWER CO.

539

Whtm the lifter, continuing to rise, separates these pOInts, the voltaic ate win. be established'· betwt'en them, and the light thus produCt'd." "It will be apparent the :foregoing that it ill impossi\J Ie that both pair of Cl;l.rbons, A,A I, should burn at once; .. I/O ... * This function, so far 1111 I am aware, has been accomplished by any previous invention; and bi thus being able to burn independently, an4 one at a time. two or more carbons in a single lamp, it isevillent that a light may be constantly maintained for a pl'olonged periCld Without replacing the carlJons or other manulil interference...
AI,

This Tunction IS again restated in the second and third claims. It would seem that no languap;e could make the objeCt of the inventor . . clearer than that which hehas chosen. 2. A reference to the state oBhe art, as already shown, demonstrates that Brush was a pioneer in this branch of electrical construction.., As an experienced electriciari, it could. hardly have escaped his attenti9n that it is practically impossible, with .the most delicate adjustment. of mechanism, to keep up, with the same current of electricity, two dis-: tinct voltaic arcs for anyleilgth of time, owing to the inevitably different resistance of the two· sets of carbons. . If there had been any doubt upon that point, a reference to the Day patents would have solved it. These patents exhibit two pairs of carbonBSeparated apparenUy simultaneousl1' but as the patentee :states"The current selectsthe.route offering the. least resistance. and theJ;efore follows that llairuf carbons in closest iIppact. When the points are separated. it continues to follow the pair until the distance betwt'en Ulem, resulting frOID waste. is too great, when the cuuentweakens or breilks. '" '" '" TIle current chooses· another pair of carbons, the magnets come into play, and the light is re-established." Indeed, it is quite apparent from all the experiments connected with the arc lighting that the establishD;lent of the arc between one pair of carbons. instead of both, was not necessarily due to the initial non-coincidence in the separation of the carbons, butalso to tho different powers of of different carbons of low resistance, which seems inevitable, howevt:f delicately the mechilnism be made or adjusted. In this view it is difficult to see what object Brush could have had in patenting this feature, and we think, therefore, that the word "dissimultaneous" used in his claims should be construed as referring to that separation which results in the production of II. single arc. It is argued, however. by theclefendants, that, while the claims originally presented by Brush· were l:>road enough to cover the feature of the successive burning ofthe two pairs of carbons, these claims having been rejected as functillnal, he subsequently accepted narrower claims, and that, under the. familiar principle that 3. patentee who has once acquiesced in the. rejection of a claim eRnnot thereafter claim it by construction, applies in this case; If the premises be true, the conclusion is undoubtedly correct. The specifications were originally filed May 15, 1879, and the first three claims were rejected as "too broad Of functional, II' but' rio objection was made to the fourth. These claims were again presented, with· avery slight and immaterial change, 'and were

54Q

,-

P'EPERAL REPORTER,

vol. 43.

again rejected July 8th, as "not changed." This called forth a .protest from the patentee, who reformed his claims, but says in hid letter that "these claims, being fully as broad as ahy yet presented, we l\nticipate the same objection, and will therefore endeavor to show wherein the examiner has erred." He then enlarges upon the tance of the invention, denies that the claims are too broad or functional, states that. his invention is a principle or method. of moving the carbons in a double carbon lamp,and that "to prolong the time that any electric lamp will continue its light without any manual interference or attention is a vitally important matter," and urges the allowance of the claims. The new claims were presented July 14th and 16th, apparently in person, and the patent was allowed on the following day. On comparing the claims as originally presented with those finally allowed, we find the changes tope of little consequence. The first claim was changed only by erasing the words, "whereby the voltaic arc is established between the members of but a single pair, to-wit, the pair last separated," but, as these words are substantially contained in the second and third claims, the change was not an abandonment of this feature. Certainly the first claim is no narrower than it was before. In the second original claim the words, "each pair or set adapted to have independent separating and feeding movements," are erased, and the words, "in combination with mechanism constructed to separate said pairs dissimultaneously or successively," substituted, btit with words ·added showing the object to be "to esta1Jlish the electric light between the members of but one pair." In the third claim the word "dissimultaneous" is combined both with ".separating "feeding" movements, indicating very clearly the object of the patentee. But it is quite unnecessary to analyze these claims at length. Taken in connection with the correspondence, they show that the examiner yielded to the views of the patentee, and allowed the claims in such terms llS to express his theory of the invention. In the view we have hiken of the proper construction of this patent,' of infringement presellts no difficulty. The defendant company admits that it used in Toledo, in the course of itl;; business, for the purpose of commercial lighting, a number of double carbon lamps similar to the complainant's exhibit, "defenqant's lamp;" but insists that such or changed by the twisting of the lifting lever exhibit has been and the bending of the clutch so that it is in an abnormal condition. This exhibit shows a complicated piece of mechanism, by means of",hich the electric current entering the lamp is divided, a portion being used to energize two magnets, AA, the object of which is, through a system of levers, to raise the two carbon rods. When the arc is e8tabbetween one pair of these carbons, the other is lifted, and held in reserve by a retaining magnet until the first pair is consumed. In this exhibit there is a perceptible dissimultaneous initial separation of the two pairs of carbons, and hence !tn infringement of complainant's lamp, even to' the narrow interpretation put upon it by the defendants; but it lsinsisted that this.is an accident in the construction or USE} of this lamp. The testimony of Mr. Nolen, however, a wit-

BRUSH ELECTRIC CO.

v.

WESTERN ELECTRIC LIGHT &: POWER

co.

541

ness for the complainant, shows that in February, 1887, he examined a lamp at defendant's station in Toledo similar to complainant's exhibit, " defendant's lamp'" and that the mechanism was such that one of the carbons was raised a little before the other, and that he noticed about 18 other similar lamps in operation in Toledo. Mr. Adams, another witness, swears that he visited Toledo the following year, and saw these lamps,and that all he observed were burning on the same side; that the next he looked at the same lamps, and always found the burnedout pair of carbons upon one side, and the other only partially consumed, and that, upon manual manipulation of some of these lamps, one or two separated their carbons with a visible want of coincidence. This is certainly strong evidence to indicate a purpose on the part of the designer or the manufacturer of these lamps that the separation of the carbons should be simultaneous. This testimony, however, is denied by defendants' witness Warner, who examined the same lamps, and found but two in which the separation did not take place simultaneously, which he judged to be due to rougJ;t handling by those having charge of them. We do not care, however, to discuss this testimony at length, or to dispose of this case upon the theory that defendant has made use of a few lamps which in practical operation may have separated their carbons the Brush patent upon dedissimultaneously, and thus have fendants' own interpretation of it. The Scribner lamp, which defendants are using, undoubtedly contemplates an initial simultaneous or coincident separation of the two pairs of carboDs, and in this particular differs from the Brush patent. They Are alike, however, in the vital feature that the final or arc-iorming separation is dissimultaneous, and in the total consumption of one pair of carbons before the other. In the Brush patent the order of combustion is predetermined by the initial non-coincidence of the separation. In the Scribner patent it is a matter of chance, or of the retaining magnets, depending upon the relative resisting power of the two carbons, which is first consumed; in other words, the non-coincidence is a function of both patents, but in one it is a matter of calculation, and in the other a matter of accident. Undoubtedly if the Scribner patent had preceded that of Brush. the latter would have to be limited to the initial non-coincidence of separation; but, as it precedes the other, we think it entitled to a liberal interpretation. If we are correct in this view, then as the Scribner patent contemplates a dissimultaneous arc-forming separation by mechanism, certainly not radically different from that of Brush, we are constrained to hold it an infringement. It is unnecessary to go into the details of the Scribner device, so long as by mechanism it accomplishes automatically the function of the Brush patent. We think the language of the supreme cpurt in the case .of Sewing-Machine Co. v. Lancaster, 9 Sup. Ct. Rep. 299, is applicable to this patent: "He was not a mere improver upon a prior machine which was capable of accomplishing the same general result, in which case his claim would properly receive a narrower interprlltation. This principle is well settled in the patent law botp in this country and in England. Where an invention is one of a

,

pdMiary'

me1iliillllda} i fdfieUons performed by the' machine are;

,ltll'subsequent machinrs:which employ substantially

c,otlt/l:in .!mproveIll6utsiill,sepa.raLe mechanisms $P .' I' iI"· Wie./3hpuldhave JeltJully justifjedin disposing ofthii3:case by a simplefl:{erp,l;Ice to, the 'opillion of Judge GRESHAM in th,eBrUBhElectric Gb. v.lit./ Wnyne Gb·· 40 Fed. Rep. 826, in which the same .upon the, :Brush patent; but"ipview of the imconstruction was oLthe involved. an'iof the elaborate preparation of counae!; we have deemed it proper to give it an illdepenq,ent consideration.: , Wear.eclearly 9f.op,inion that complainant is entitled to, relief in this ··md,l\decr,ee wm.thereJore be entered for an injunction, and the to a master to assess Rlldreport i.ts damages. usual
I, . ' ." · ,

Sll.mQ,mearls to:a®olPplishthe sameras.ults are·!n1ri"gemellts.althouKh

>

I

et ,ale .'11.

;, ','"

STAFFORD

et

cd.

"

,('

r'"

(Oircuit OOUrt, D. New Jersey. September 26,1890.) , '., .. ,-; .
. .

COLLlsroilr.i...TuG AND STEAM-Bmp. A tug,'with a bark in, and·.a steam-ship were. apProaohlng nearly head on when .first discovered. .The tug signaled that she proposed to pass on the starboard side. The steamcshipsignaled in reply to port helm, and pass each other on the port Biele·. The tUg accepteel this signllJ, but the steam-ship, when so near as to reneler' a colJis,ion almost inevitable, cbanged her signals, and the. tug. to avoid being run uowti, turned quickly to the left, and eScaped by Ii distance of about a dozen feet. The .hark was unable to get out oftl;le way, IIond wall struck by the steam-ship. At the place where the collision occurred therewas nOIIJ,aterial obstL'Uotion to the view. Held,! that the tu&,was not in fault. , .

In Admiralty. On&ppeal from -district court. See 38 Fed. Rep. 767. De Lagne/, Eerier and Henry G. for libelants. Owm, Gray ,tt- ,SU.trge8, .for J ames:E. Stafford. Sidney' Ohubb( for F. O. Matthiesseri & Wiechers Sugar Refining Company/respondents; 13RAnqi:y, Justice. reading the evidence in this case, lam unaible to agree with the judge' of the district court as to the tug in faultirl regard to the collision between the Leonard steamp.rLtidwig Holbergandi tbe"b'ark Quickstep. The only direct evidence as to the'positiori and movements of the three vessels at the time 'of 'alld preceding Hie collision waS given by McDevitt and Devlin, the master and niatedf the ttJg;' by Woods, the pilot in charge ;Of and hy of tge Qllickstepj and from this evidence; taken together, it seems to me that the Holberg was taMaroa.. Had the people in charge of the Holberg been brought in toteMify{th'e case might have had a different lookj but they were