CI,ARK'V.CITYOF MINNEAPOLIS.

203

a patentee cannot abandon a part and claim the rest, nor can hebe permitted to prove that a part is useless', and therefore immaterial, but he must stand bv' the claims as he has made them. If more or less than the whole of his ingredients are used by auother, Buch party is not liable as an infringer, because he has not used the invention Of discovery patented. Such' is doctrine of the supreme court as laid down in Schumacher v. Cornell, 96 U. S. 549. See, also, Keystone Bridge Co. v. Phc£nix Iron Co., 95 U. S. 274; Burns v. Meyer, 100 U. S. 671; Water Meter 00. v. Desper, 101 U. S. 332; Gage v. Herring, 107 U. S. 640, 2 Sup. Ct. Rep. 819; Fay v. Cordesman, 109 U. S. 408,3 Sup. Ct. Rep. 236; Rowea v. Lindsay, 113 U. S. 97,5 Sup. Ct. Rep. 507; Manufacturing 00. v. Sargtmt, 117 U. S. 373,6 Sup. Ct. Rep. 931. Bill dismissed.

CLARK 11. CITY OF MINNEAPOLIS.

(Ofrcufe Oomt. D. Mfnnesota. January .9, 1891.)
PATBNTs POB INVBNTIONS-INPRINGEMENT-ANTI<lIPATION.

Letters patent No.401,61B, issued April 11:, 1889, to David S. White, fol' an Improvement in hoisting and loading machines, consisting of an elevated'pol'table platform, built so as to allow a car to be passed under it to receive the contents of a pivoted receptacle, with a hoisting apparatus on the platform adapted to raise the and over tbeplatform, and a receptacle on the,platform, fixed so as to receive the material elevated and emptied into the car, is. not infnngedby a Ill&: chine known as " Gre.en"s Hoisting Apparatus," which consillts of a platform 011 8S to allow a car to pass under'it, and an inclined projecting boom, up which a truck runs and abuoket is hoisted so that a receptacle, since said' Green'$ machlhe is substantially the same 8s.tbe C. W. H11I1\ eleva'tor, before the patented machine was invented. "

,

In Equity.

Pa'Ul &: Merwin, for complainant. James F. Williamson, for defendant.

J'. This suit is brought against the city of :M:inneapoli'3by C.W. Clark, assignee of letters patent issued to DavidS. White t dated April 16, 1889, No. 401,618, "fofan improvement in hoistingaJidloading machines." He claims an infringement by defendant in using what is called the "Green Loading and Unloading Mechanism for Sewer Excsvating."Defendant, in its answer, pleads (1) no patentable novelty; (2) that the patentee is not the first inventor; (3) non-infringement. I shaH consider onlythe issue raisl'd by the defenslfof non-infringement/which, in my opiriion,settles the cause. The specification of the patentee t White, states that" My invention relates! particularly ,to improvements in machilles for excavating sewers, though ·tlppiicablein' making many other ' excavations." The invention is ndtan eltCavilt()f, but can be used' itl elevating the earth, and dumping it into a receptacle in connection with the excavating machines or hlind digglngjand so he further states that

204

FEDERAL REPORTER,

vol. 45.

C'tbe object I have in view is to provide a machine by which the dirt or material may be quickly raised from any depth, and dumped into a suitable receptacle, from which it may be transferred to a suitable car, and transferred to any desired point." It is then stated that there are other objects that the inventor had in view, and that they would appear in the detailed description which is given of the invention, taken "in connection . with the drawing of the device. The machine described in the White patent is-Fir8t, an elevated portable platform, called a "carriage," built so as to allow a car to be passed thereunder to receive the contents of a pivoted receptacle; 8econd, a hoisting apparatus on the platform adapted to raise the material up and over the platform; third, a receptacle on the platform, fixed so as to receive the material elevated .and brought into position over the platform and emptied into the car. A hoisting mechanism known as the "C. W. Hunt Elevator," used principally for elevating coal, but that could be used for other material, and operated long prior to the complainant's alleged invention, (the White hoisting apparatus,) is described in the evidence taken in this suit. Two models are introduced, one larger than the other, with slight immaterial changes in structure. They are both hoisting machines or elevators, allowing a car to run under a tower, which is without wheels under it, but with depending standards, and a fixed receptacle for holding and receiving coal and other material elevated: Both models have an inclined projecting boom on which a truck runs, and a bucket is hoisted ·upthis boom and l1P the incline to a point where it is emptied. In one of the models the boom is on such an incline that the bucket filled with material would sWing· from the end of the boom, and could be lowered to .the place where the material is located and hoisted some distance before it reached the truck on the boom, so aato run up theincline to a position over the receptacle. The angle at which the boom runs from the tower depends upon the position of certain braces, which project from the tower under the boom to its overhanging end and support it. The machine used by the defendant, (Green's hoisting apparatus,) when compared with the Hunt elevator, has striking resemblances. Green uses a platform on wheels, instead of a tower elevated so as to allow a car to pass under it, and an inclined- projecting b00m on which a truck runs, called by him "trolley," and up this incline a bucket is hoisted to a point over a receptacle, into which if. is emptied, and then dumped into a car. The structure and mechanism of the Green machine has less standards above the platform upon which the receptacle is placed than the tower of Hunt. But they do not change tpe features of the machine and to be acby each. The material is elevated in substantially the same If two of the tower standards in the Hunt apparatus above the receptacle are removed,and wheels placed under it, so it could be easily q1oved, lH;ld the receptacle pivoted, instead of fixed with a slide in it, there would be produced substantially the Green machine. Green had for dumping the hoisting bucket, which i!l not in either the Hunt or White apparatus, but they are not important ip determining this case. The su bstane!> of the testimony of the complain.

MOSHER

v.

JOYCE·.

205-

ant's expert witness Bates is that such changes as could be made by a skilled mechanic in the Hunt elevator would produce a hoisting apparatus similar and operating substantially in the same way and for the same purposes as the Green machine, except some automatic mechanism, perhapS', which, in my opinion, makes Green's apparatus better than Hunt's. There can be no doubt that an examination of the Hunt and Green machines shows that in all essentials they are alike. There is no infringement by the defendant, and a decree will be entered dismissing the bill.

MOSHER

v.

JOYCEet

al.

(CircuitCouTt, S. D. Ohio, W. D. February 97,1891.)
PATENTS FOR INVENTIONS-:!;NFRINGEMENT-I)AMAGES.

In '8 s,uit for infringing a patent, it appeared that complainant's patent was' for an improvement only, and not for an entirely new machine. It alsoappeared"that defendants .sold another machine similar to the alleged infringement, and that..l/ofter a while it'ceased to be profitable to defendants to manufacture the lUfringing machine, and they discontinued it. Held, that it was necessary for complainant to appofliionhisdamages and defendants' profits between the patented and unpatented features (If the infringing machine, and was entitled only to the damages attributable to the infringing features. '

In Equity. L. M. Hosea, for complainant. Wood&: Boyd, for respondents.
SAGE, J. This cause is before the court on exceptions to the report of special master, who finds that the defendants have realized $1,905.06 profits from the infringement of the improvements patented to the complainant. The only exception which need be considered relates to the rule of profits and damages. The decree of the court finds that the defendants are liable as infringers of two patents for improvements in lifting jacks. The claim of the first patent (No. 168,663) is for the "block, D, provided with several teeth, that catch simultaneously in those of bar, A, and pivoted to the lever, E, as and for the purpose specified." This is not a claim for the entire jack, but only a small portion of it, to-wit, the lifting block pivoted in a particular manner. . The first claim only of the second patent (No. 172,174) is found to be infringed, and it reads as follows:

"In a lifting jack, the toothed lifting block pivoted to sockets of a double lever, swinging on an oscillating fulcrum, to engage and clear readily the teeth of the lifting bar, as required, substantially for the purpose described."

It was claimed before the master, on behalf of the respondents, that
fhe true rule by which to arrive at complainant's damages is to allow

him the profits resulting from the manufacture and sale of the infring-