120

FEDElUL REPORTER,' voL

53.

GUSTIN v. NEW" ALBANY RAIL·MILL CO. et al (Circuit Court of Appeals, Seventh Circuit. October 27, 1892.)
1 PATENT& FOR INVENTIONS- DJllVIOE FOR CARRYING RAILROAD RAILS . TIcrPATION. AN'

;', The first and second claims of reissued letters patent No. 7.898, (original No. 190,211. dated May 1, 1887,) "for improvement in .apparatus for carrying railroad rails," whereby the upper surface of the carliier is arranged at or 'below the level of the bedHuld provided with projectin!t c.atches in combination with the bed, the d.riV.i.n g chains, and the guide rails, are anticipated llY the patent to White and Wostenholm, March 19, 1872, No. 124.687. 47 Fed. Rep. 508, affirmed. " .

2.

SAME.

The third claim of patent, in to "the combination with an endless chain, B, subject to expansion by hot rails of a pulley, b, arrang¢.in a side bearing"d,.J:ield by a movable weight," Is void, in view of the prior art, and anticipated by the patent to S. E. Jewett, June 9,1874, No. 131.705, showing a movable pulley controlled by a. weight the end of a 'chain. 47 Fed. Rep. 1168,. affirmed. ' ,;

;':

.Appeal from the Circuit Court of the United 'States for the District of Indiana. In Equity. Suit by Andrew againlilt the New Albany Rail-Mill Company and others for' infringement' of patent. Bill dismissed. ':' Complainant appeals. Affirmed. J. H. ll8.ymond, for appellant4. . A. Lyrtch' Mason, for appelleeS. Before GRESHAM and JENKINS, Circuit Judges, and BUNN, District Judge. ' PER CURIAM. The decree appealed from. is affirmed, upon the grounds stated in the. opinion of the court below) reported in 47 Fed. Rep. 508.
P. P. MAST & CO. v. RUDE BROS. MANUF'G CO.
(c....ircuit Court of Appeals, Seventh Circuit.

October 12, 1892.)

No.18.

1.

PATENTS FOR INVENTIONS-NovELTv-CULTIvATORS.

Letters patent No. 354.717, issued December 21, 1886, to P. P. Mast, for an improvement in cultivators. consisting in the construction of couplings by which the beams and alignment rods are connected with the axle, and in the construction of the beam brackets and crossheads which carry the shovel standards at the point where the brackets and standards join. so as to maintain the alignment between the shovels and the aXle, irrespective of 8. change in the lateral position of the shovel beams, are void for want of novelty.

1l.

SAME.

Letters patent No. 237,740, issued February 15, 1881, to C. O. Gardiner and W. C. Downey, for a cultivator in which the drag bars are coupled to a wheellld frame, and arranged to swing vertically and laterally, are void for want of novelty.

Appeal from the Circuit Court of the United States for the District of Indiana.

P. P. MAST &: CO. V.RUDE BROS. MANUF'G CO.

121

1n Equity. Suit by P.P. Mast & Co. against the Rude Broe. ManuracturingCompany for infringement of a patent. Decree for defendant. Complainant appeals. Affirmed· . H. A. Toulmin, for appellant. Stem & Allen, for appellee.

Before GRESHAM, Oircuit Judge, and JENKINS and BLOD· GETT, District Judges. BLODGETT, District Judge. This is an appeal from the circuit court for the district of Indiana; for the review ofa decree rendered by said court, dismissing, for want of equity, a bill filed therein by appellant against appellee, charging appellee with the infringement of letters patent granted December 21,1886, to P. P. Mast for a cultivator, which patent bears patent office No. 354,717; and a patent granted February 15, 1881, to C.O. Gardiner and W. C. Downey for a cultivator, which bears patent office No. 237,740; both of said patents having been duly assigned to and owned by appellant. The scope and nature of the device covered by patent No. 354,717 is set forth in the specifications as follows:
"This invention relates to improvements in cultivators. and isof that class in which provision is made for maintallling the alignment or parallelism between the shovels and the axle irrespective of a change in the lateral position of the shovel beams; and the invention consists essentially in the construction of the couplings by which the beams and alignment rods are connected with the axle; and in the construction of the beam brackets and the crossheads which carry the shovel standards at the point where those brackets and those st<tndards are connected together. The object in view in the first of these features is the attainment of a free oscillating movement of the couplings on the axle, which admits of the ready elevation and depression of the beams with respect to the ground, and also of the lateral adjustment of that portion of the couplings to whicll the alignment rod and the beam are directly connected for the purpose of adjusting the beams laterally with respect to the rows. The object in view in the second of these features is tbe prevention of thetwistinl' tendencies of the crosshead with respect to the beam. due to· the liability of the ends of the· crosshead to which the shovels are attached to work up and down. II

The vertical and lateral movements of the plow beam are obtained by a sleeve fitted upon the axle near the shoulder of the wheel spindle, which sleeve moves freely upon the axle. Upon this sleeve a collar ill placed, movable laterally upon the sleeve with a set screw, by which it

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UDERAL REPOmJEl\,

vol. 53.

At-

this collar is a vertieal"hub," as it is called, to which the end of the plow beam is attached by means oia forked bracket., which grasps the hUD, so to speak, at the top and bottom, and is held in place by a bolt pa.ssing vertically through the hub and the ends ofthe bracket, so plow beam will swing laterally, right or left,upon this bolt. AtiallJ a'llBbi ,hMizontally'plWlllleI: with theade"fron'l' the :collar, and a lug is attached to one of the crossheads, andatt:iched to this arm' and crosshead is a rod which is parallel with the plow beam, "whose function ds that of keeping the crosshe/td in a the axle, no the,ooaIil be moved more or less. to eitQe" side of the direct Hne.of the draught, the result which.isto the shovels of eac:porossheg.d in the same relative position to the The second feature oLthe'device is the enlargement of the contact surfaoes)oLthe CTosshead.aqd!:bracket,so that they take a firmer hold upon eaoll'lot,herptnd preyent,the" twisting I! tendency,as .tlae' patentee calls cTOssheacl; i : , .. ! ., ,A,disclaimer is inserted at the foot of the specifications in the following !Words:

may' b'efttstendd and heldfirmly1i.t'anypoint upon theslee.ve..

or

"I would not have it understood that 1 am intending to lay a broad claim to the sleeveconatrueted to fit upon the axle,and,provided with ribs and a collar fitted to the -sleeve. having a portion to which the beam yoke is pivoted, as this device is embodied in the patent issued to Gardiner & Downey, February 15,1881, and aBBigned to my assignee in this case. "

This patent has five claims, as follows:
"(1) In a cultivator, the combination, with a sleeve constructed to fit upon the axle, a collar fitted to said sleeve, and having integrally formed with it a verti· cally disposed- hub anda laterally disposed arm. . "(2) In,a-cultivator, the crosshead having a hub-like p()rtion enlarged at the upper and lower ends to form disk-like surfaces to. prevent the twisting tendency of the head when mounted, and having lateral arms construct(!d to form connectiotl'with the shovel standards, and a portion to connect with the alignment rod. "(8) fnaculti vator. the combination. with a beam and the b(!am bracket, M, having a transverse openiug, 8nulaterally enlar,ll'ed Where the ()pening occurs, of 8 cross d. R, having a hub,like portion, R. enlarged to agree with the bracket, anll otally mounted in said and hll,ving arms to which the shovel sta: are connected. . "(, a cultivator, the beam. bracket. M, consisting of a shank, N, for the beam; portion. Q, having a transverse opening for the crosshead, and for the handles. "(5) In a cl.lltjvator,tbe with the axle. the coupling constructed to osciUatethe.reon.and with 8 portion capable of lateral adjustability, the beam and the alignment rod secured to said adjustable portion, of the bracket secured to the beam" having an enlarged portion and a transverse opening therein, and having aportionfor-the atta.ohment· of the handle, and the crosshead having a hub·like portion pivotally mounted in said opening, and arms for the attachment of the shovel standards. "

The Gardiner & Downey patent, No. 237,740, covers the construction of a cultivator in which, the drag bars are coupled to a wheeled frame, and arranged to sWing vertically and laterally, and contains five claims, but infringement is insisted upon ol'llyas to the fifth of those claims, -which is:

I. P. MAST & CO.

v.

RUDE BROS. MANUF'a 00.

123'

·· (5) The combination of the parts. It. c. the connecting pivot, and the screw, i, ,. applied to hold the pivot as shown." ,

The lateral motion or side swing of the drag bar is obtained by the pivot pin, d, which passes vertically through the forked ends of .the drag bar, and through the head or block, b. This pin on which the drag bar swings or vibrates is held in place by a screw inserted in the rear side of the head, b, so that it may be made to press firmly agaInst the pin, thus preventing the pin from rotating in the h(lad, and allowing the forked ends of the drag bar, c, to rotate on the portions of the pin, d, which project above and below the head, b. The court below, in a short opinion, copied into the brief of appellant'ssolicitor, disposed of the case by finding, from the proof, that both these patents were void for want of patentable novelty. We have looked carefully into the proof in the case bearing upon the question of novelty as to both these patents,and feelobligedtoconcur in the decision of the court below. It is not contended on the part of appellant that the idea of maintaining the alignment between the shovels and axle was new with Mast; and the disclaimer in Mast's patent concedes that he was not the inventor of the device for securing the vertical and lateral swing or mOVEr ment of the forward ends of the plow beam upon the axle. The idea of maintaining the alignment between the shovels and axle is clearly shown in the Easterly patent of April, 1856; in the Swickard patent of 1873; in the Dale patent of March, 1875; in the Huffman patent of 1876; while in the Reed patent of December, 1883. we find all the essential elements of the first claim of this patent,-the sleeve, the beam vertically pivoted, and a collar working on the sleeve, the horizontal arms, and the alignment rod, all designed and operating to the same end as the same parts are designed and operate in the appellant's patent. The four other claims of the patent all relate to the crosshead and bracket holding it. They all cover the same device in slightly different forms of expression, and the novelty is claimed to consist in constructing the crosshead with a hub-like portion enlarged at its upper and lower ends to correspond with similar enlargements of the brackets so as to increase the bearing surfaces of the two parts, and thereby prevent twist-

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vol. 53.

ing. The mere expansion ofthese parts where brought in contact does not involve invention. It gives them no new function and produces no new result. It was what any skilled mechanic would do if it was found, in practice, that the parts in contact were liable to twist. It is the same idea,as i$involved in the common and well-known device of what is calle<1Jhe .'. ,fifth wheel toa wagon, that is, a larger bearing surface is given, in order to secure steadiness, and less liability to breakage of the parts·· !tis true that the fO,rm of the parts or elements of the appellant's tJevi¢)=l,differs from that shown in the prior devices which I have'cited, but the essential principle of the appellant's machine is found in the prior devioos which have been referred to. "A change of form of amachine, without a change of mode of operation or result, is not patentable." Winans v. Denmead, 15 How. 330. "A change of mechanicaLstructureis not patentable unless it produces a new and entirely different result." Sargent v. Larned, 2 Curt. 340j Mabie v.Haskell, 2 Cliff. 510j Aiken v. Dolan, 3 Fish. Pat. Cas. 204. The fifth claim. of the Gardiner & Downey patent is a combination claim,thif elements of. the combination being the head, b, the forked plllte,: 0, the pivot pin, a, and the screw, L All these elements are to, be old, but acombination of old parts may make a valid patent, n,ew result is produced by auch combination. The efficient memberol is the screW, i, which is applied to hold the pivot, d, firmly In thll head, b. Ids, as the specifications suy, "tapped int() therearside6f'the head,"sothat it may be made to bear upon and !:iolcl'thepivdt. It is merely what is known in mechanics as '''setscrew'' is defined to be "a screw, as in a cramp, tl1totigh oue part :tightly uponahother to bring pieces of wood, metal,etd.. , inclose contact.". Imperial Diet. ."Set screw. A screw empluyed,:,tO,hold orniove' objects to their beatings, the bits in a Or .brace." I{night, Mechanical Diet. The only function or office {jfthis set screwli, is to hold.the pin, d, pl/ice,-the same result ..isprbduced by a set screw in a cutter head, that of holding the bit or cutter in place; or, as the first definition quoted says, it brings tlW pieces ormetal, thatia, the pin and the head, inclose contact. No new result is produced bythis combination from'that produced by the SCrew in a cutter head. This claim of the patent is thereuse of a fore void for want of The decree of the circuit court is affirmed.
ARMSTRONG et a1. v. SAVANNAB SOAP WORKS et a1. (Circuit Court. S. D. Georgia. E. D. April 18. 1892.)
TRAl>E-MARK-BILL FOR INFRINGEMENT-PARTIES.

The QireOtors of a corporation may be included as parties defendant in a corporation for infringement of a trade-mark. bill against

In Equity. Bill by Armstrong & Co. against the Savannah Soap Works and others to enjoin infringement of,trade-mark. Demurrer for improper joi.nder of parties defendant. Overruled.