ATWOOD
iI·. W,
G. & A. E. M<il&RISON CO.
475
Chester invention. Itfollows that :the third claim of the Chester patent should be limited· to. the devices,or· their equivalents, set forth in that claim, and these are not found in the defendant's structure. Bill dismissed, with costs.
et r:d.v. W. G. &
A.
R.
MORRISON
Co.
(Circuit Oourt, D. Oonnecticut. September 30. 1892.) PA.TBNTS FOR INVBNTIONS-ANTIOIPATION-INFRINGBMBNT-Al'PARA.TUS FOR DRIVING SPINDLES.
Letters patent No. 2116,371. issued April 8. 1884, to John E. and Eugene Atwood for an improvement in the means of driving spindles br bands, so as to permit· the uS6'ofnarrow spindle frames, consist of the combination of a drive pulley.and a guide pulley having parallel.axes, and arranged one above the other, two spindles on opposite sides of said pulleys, and two driving bands, 'each encircling both pullers and the whirl of the spindle, and each consisting of three parts, two of which pass horizontally between the whirl and the adjacent sides of the pUlley, and the third passing directly from one pulley tQ the other between the hQrizontal portious. Hilld. that the patent was not anticipated by a machine alleged to have been constructed and used continuously trom 1877 by the W. G. & A. R. Morrison Company in its factory at Willimantic. Conn.
In Equity. Bill by John E. Atwood and Eugene Atwood against the W. G. & A. R. Morrison Company for infringement of patent. Decree for injunction and accounting. Fish, Richardson Storrow, for plaintiffs. Charles L. Burdett, for defendant. SHIPMAN, Circuit Judge. This is a bill in equity, which is based upon the infringement of the first three claims of letters patent No. 296,377, dated April 8, 1884, to John E. Atwood and Eugene Atwood for an improvement in the means for driving spindles by driving bands; The application was filed July 19, 1879. A spinning frame is a long frame having at each side a row of spindles rotating in vertical axes. A single shaft, extending lengthwise of the frame, drives all the spindles or..the frame. This shaft was formerly provided with a drum, or with single separate pulleys, one for each spindle. In the Atwood patent of 1874 two driving drums were used, which were" arranged side by side, lengthwise of the frame, each driving, by separate bands, the row of spindles at the further side of the frame. In this arrangement the drum on the side next one row of spindles acts as a guide for the bands running from said spindles to the drum at the other side, which drives them, and in this manner the portions of the band approaching and leaving the whirl of the spindle are in the plane of rotation of the whirl,» which is an important consideration, because, if, as in preceding inventions, the band approached and left the whirl at an angle to its plane of rotation, unnecessary friction was increased. The two drums placed side by side made a wide frame, and the same fault existed in the earlier inventions, which had also wide frames, because the spindle must be at a distance from the drum, so 88
476
FEDERAL REPORTER.
vol. 52.
te: ,make the angle between the parts of the band froro the drum to the silfficiently acute. Theapinning room often contains thousands of spindles, and narrow frames are very important to save floor space and material. To accomplish this beneficial result, and ,also to increase the length ofdhe band, thereby increasing its durability, the invention of the patent was conceived. The inventors say in the specifications: ..An important object of our invention is to provide, in an extrl'mely narrow spinning frame. having a row of spindles on each side, for driving each spindle with a separate and independent driving band, which shall have sufficient to give it durability, and all parts of which shall be free from liability to rub and chafe against each other while running. 'fo this end the invention consists in the combination of a driving pulley and a guide pulley having plWallel axes, and arranged one over the other, a spindle arranged at one s,ide of said pulleys. with its whi.rl in a horizontal plane about mid way betwee\l said pulleys, and a driving band encircling both of said and said whirl, and comprising two portions extending horizontally between the whirl and of the 'two pulleys. and a portion extending directly from one pul1!:'lyto the other, and passing between the said horizontal portions. as morefuUy hereinafter described. The invention also consists in the combination; With the two pulleys arranged as above described, of two spindles, arranged on opposite sides, Of the two pulleys, with their whirls in a horizontal plane about midway vertically betw'eeri said pulleys, and two driving bands, each encircling both said pullpys and the whirl of a spindle. and each extending. as a.lwveile5cribed. The .also consists in providing the guide pulleys: above described ;with flanges. whereby the portion of. each driving band which passes from one pulley directly to the other is prevented from rubbing and chafing against the two horizontal portions between which it passes, as more fully hereinafter described." , In the patented device. the driving shaft, which carries the driving pulleys,-..one'for twooppdlsitewhirIs,-occupies the usual position between the:t:woirows of spindles. Above the shaft, and parallel with it, is another sbaftfor carrying the guide pulleys, which are directly over with each of the driving pulleys, and are directly ,opposite spindles on tlietwo smes of the frame, and are flanged on ea.ch side. The whirl or the spindle is about opposite the space between;the two pulleys. 1'he band the driving and guide pulleys' and the whirl of a spindle, and after, leaving the driving pulley, and befor.e passing around the guide pulley ,paasesaround and from the whirl in a, nearly horizontal plane, while the portion which passes from the guide pulley to the driving pul.. ley ,passes between the horizontal portions in a nearly verticalplane. Chafingbetween' .the vertical' and the horizontal portions of the band is' prevented by the fact that the space between the flanges' of the guide pulley is less than the diameter of the whirl,and therefore the flanges cause the vertical portions to swerve
ATWOOD 11. W. G. & A. R. MORRISON CO.
477
from the lines in which they would come in contact with the horizontal portions. The three claims which are said to have been infringed are as follows: "(1) The combination of a driving pulley and a guide pUlley having parallel axes, and arranged one over the other, a spindle arranged at one side of said pulleys, having its whirl in a horizontal plane about mid way vertically between said pulleys, and a driving band encircling both of said pulleys and said whirl, and comprising two portions extending directly from one pulley to the other, and passing between the said horizontal portions, substantially as described. "(2) The combination of a driving pulley and a guide pulley having parallel axes, and arranged one over the other, two spindles arran Ked on opposite sides of said pulleys, with their whirls in a horizontal plane abuut midway vertically between said pulleys, and two driving bands, each encircling both of said pulleys and the whirl of a spindle, and each comprising two portions extending horizontally between the whirl around which it passes and the adjacent sides of said pulleys, and a portion extending directly from one pulley to the other, and passing between said two horizontal portions, substantially as herein described. "(3) The combination of a driving pulley, H, and the flanged guide pulley, J, and their shafts, arranged parallel with each otber, the spindle, D, and its whirl, b, arranged as described, and the driVing band, E, encircling both of said pulleys and said whirl, and comprising the horizontally extending portions, SS, and the portion, S', passing between the portions, SS, substantially as herein described."
The single driving pulley and the guide pulley directly over it made a narrow frame, while the band approaches the whirl, as in the 1874 in its plane of The result which was previouslyaccomplished by two drums side by side is attained by two nulleys, one above the other, in the same vertical plane, with an economy of room. A long, and therefore durable,. band is also gained. . The defense is that the defendant constructed and used in the summer of 1877, and continnouSly thereafter, in its factory in Willimantic, Conn., a testing machine for spindles, which was "banded," in accordthe patented method, by two pulleys, one above the other. ance The history of this machine, as given by the defendant's vice president and is that in 1877 a testing machine was made, for the purpose of testing spindles which were being put into machines made for the Springfield Silk Company; that it was kept and used until about 1880 in the attic of the defendant's. shop. An addition to the factory was then built, and the machine was placed in the third story, where it remained for some months, ll,nd was then moved down stairs to the first floor. It had two wooden pulleys of about the same size, until 1883 or 1884, when a smaller iron flanged pulley was substituted for the upper wooden pulley, and a groove upon the lower pulley was turned off, but. it is said by the defendant that the same method of banding was used continuously from 1877. The Springfield machines were banded in the old" two-cylinder" method. The patented method of banding is ingenious; and speedily attracted attention when brought before· the public. is remarkable that the defendant hit upon this method in
FEriEltALREPORTER,
spindles ,were banded in the old-fashioned way, and a new system to was riot needed. It isfu'tth'erm6te reniarkable that in a small shop the attenti0:n'loLthe mechanicsishould not .have been attraoted to a new method,wbicb, when preserited to· other manufaoturers,qnickly excited interest; ','TMt/ap bore' marks of intelligent ingenuity, tospperiority, ",ere' promptly a¢knowledged by the public, spp_uJd produced in, 18(7, and sAould have been continupusly used till Atwood's invention became known, without the consciousness of any' one' tha:t this testing machine contained a novelty, is .singular. Six witnel!lses who were actually engaged in 1877 in the defendant's foreman, two, as machinists, and two shop.....one'Rs' a partner, as wood wdrkmll'p'-testify.as follOWS: They did not see the machine in the attic.. or some qf them, did i,ton the in 1889, pf banding where it Wall used for testing spindles. The Atwood them whenrit was introduced.' Two of them, one the was a foreman, saythat when it wits in the third story it had two horizontal cylinders sideby'side, and was not banded in the new way. The foreman saystl1il:twhen it was, l;'i;lmove(l to the basement "the thing [was] set up onen,d," the upPllr. cYlin.der WAS ,removed, the ,iron band wheel was substituJlld for it, and tbE\:present style of." banding" was introduced. My examination of the testimony brings me to the conclusion that a was placed in the dimly-lighted gartesting machine was built in ret of the shop, was used for testing the' Springfield' Company's new spindles; I1tidwas removedt6 the in 1880, where it was in plain sig'fif,''ahd was noticeaby the workmen, but that its two cylinders moved iri'a\ horizontal pla.ne, 'and were aide by side,and its banding was the "t#6-cylinder method;" and the one which was then, needed for testing that subsequently, when the Atwood method became public, thechiuige was made in the upper cylinder, and the position of the machine was changed. The fact of these changes in the life of the have escaped the memory of the officers of the defelldant complUly, who llowbelieve that the machine in its important features has existed since 1877; but the fact that they are mistaken is far more probable than. that the Atwood banding was produced by one of them intl1at y e a r . ' , There is no suggestion that other pre-existing devices trenched upon the right 'Of the invention to the claims of the patent, but it is claimed in the argument that infringement was not proved. In the prima facie testimony the complainants introduced a model,which respondent's illustrative counsel admitted, for the purposes of the case, was a representation' of machines for' spinning silk, which 'respondent made the date of the patent in suit and sol? at Willimantic, and the time of filing the bill of complaint." This model was "banded" by the Atwood patented method. Complainants' witnesses thereupon testified that the machine illustrated by the model was an infringement. Respondent's witnesses did not deny the illfringement, or deny that its machines, when sold, were banded. It is now said that
1817;'fha chide machine merely for testing'-spindles,
THE CHATlJ'IELD.
479
the stipulation admitted' the construction of the spihhing frames, but didnotadmit ihatthey mMhines with bands, and that such a machine can be banded in different ways, and that there is no evidence that the complainants had banded their machines in any way. Without discussing the effect of the defendant's silence after the testimony of the complainants, which was based upon the supposed extent of the stipulation, I think that the respondent' positively admitted the fact of makitigand llelling machines with the Atwood mode of banding. Mr. W. ,G. Mom!lOn, the defendant's vice president, in reply to cross question 96, "When did you first employ silch way of ba.nding [in the 1877 frame]in the frames which your company sent out froID' iti!! shop?" and to question 97, to give the date as nearly ashe CQuld, recollect, said, "Between 1881 and 1884." In reply to cross question 127, which inquired whether the end of 1884 or the ,beginning of 1885 was the time when he firSt produced spinning frames with the method of banding shown in the' exhibit, Mr. Morrison said: "Some time priortq this date, I made a,tria.l frame containing a continuous tin cylinder. Ihadnever ,made any frames, and sent out prior to ,tbis date." He certainly implied that after that date he had sent out frames with the method of banding 1Ihown in the model. This testimony leaves no room for reasonable uncertainty upon the question of infringement. Let there be an injunction against infringement of the 1st, 2d, and 3d claims, and for an accounting.
a
THE
CHATFIEJ.D.
SHELDRAKE fl. OCEAN
CHATFIELD. fl. SAME.
S. S. Co.
{lJf,sth'l.ctCourt, E. D. Virgfmfa. Maroh 14, 1892.} BALVAGB-TowAGB-STBA.MSllIl' WITJI BROKEN SIIAFT.
On tbe night of the 26th of October, 1891, the steamsbip Chatfield, of 1,904 tonll register, aIlQ loaded witb 7 400 bales of cotton, wben about 53 miles out from Cape Henry, broke her shaft and lost her propeller. A strong wind was blowing at the time, whioh increased during the next day,to a gale. There is also a strong current in that part of the ocean, setting south, and the Cbatfield was carried to a point some 70 miles from Cape Henry, and off soundings. On the following morning she set ai/{nals of distress, and about 11 o'clock was approaohed by the cargo steamship Brixham, of 400 t()ns net register, and loaded deep with iron, which with /P'eat di1llctilty got hawsers to ber, ,and in 9 hours towage against the wind, her hawser parting 8 times, brought her,witbin 43 miles of Cape Henry, aud into 16 or 17 fatl;1oms of water, where the Chatfield anchored. The Brixham remained with her all night, and in the morning, the gale increasing, tbe Chatfield signaled the Brix,bam, ',to, go to port for additional helP;., with WhiCh, request th,e Brixh,am complied, Thefeafter the passenger steamship vity of Augusta oame up, to whioh tbe Chatfield exhibited signals of distress; she at this time dragging her'anchor 'and driftingtowllll'ds the coast. The City of Augusta, with great dl1llculty, and danger of fouling ber pr0l'Elller and disabling herself,got hawsers to the fleld, and 'towed ber into Hampton Roads; the service lasting about 12 bours. The Chatfield, with her cargo and freight, was worth about $485,000, the Brixham
