374

92 FEDERAL REPORTER.

The suggestion that the elements of the first claim are merely aggregated, and not patentably combined, is, in my opinion, not well founded. The law as laid down in National Cash-Register Co. v. American Cash-Register Co., 3 C. C. A. 563, 53 Fed. 367, is plainly applicable to the facts of this case. The contention that Rood and Vaughan were not joint inventors of anything more than the cutter cylinder specifically claimed has not been overlooked, but need not be discussed. As I view the case, it cannot be sustained. Decree for complainant.

ELLIOT'fet al. v. HARRIS et at. (Circuit Court, N. D. Ohio, E. D. December 3, 1898.) No. 5,810.
PATEKTS-PREI,UIINARY INJUNCTION.

When the patents sued on have never been adjudicated, a preliminary Injunction will be denied, in the absence of a showing that the public has long used the inventions, and has acquiesced in the validity thereof.

This was a suit in equity by William E. Elliott and the Elliott Button-Fastener Company against Abraham M. Harris and Nicholas Flemming for alleged infringement of three patents. 'l'he cause was heard on motion for a preliminary injunction. Taggart, Knappen & Denison, for complainants. Albert M. Austin, for respondent A. M. Harris. RICKS, District Judge. Counsel for the defendants very properly quote from Robinson (Pat. § 1173) the three things essential to maintaining a preliminary injunction in a patent case: (1) that the patent is valid; (2) that plaintiff is the owner of a legal or equitable interest therein; and (3) that the defendant is about to commit an actof infringement. The complainants sue upon three patents, neither one of which has ever been adjudicated. In order to entitle them to an injunction, they must therefore show that the public has long used said patents, and has acquiesced in the validity thereof, and has never undertaken by litigation to question the patentee's exclusive rights thereto, or the validity of said patents. They allege certain acts of the defendants, which, in a proper case, might be held to be contributory infringement, but which are not shown to be such by the facts in this case. The case, as made out and submitted, is deficient, and fails to establish anyone of the grounds named which would entitle the complainants to a preliminary injunction. Such an injunction is not issued, unless the rights of the complainant thereto are clearly established. They are certainly not so established in this case. The motion for preliminary injunction is therefore disallowed.

RISDO" IRON &

WORKS V. TRENT.

375

RISDON IRON & LOCOMOTIVE WORKS v. TRENT. VJircuit Court, N. D. California. No. 12,293. 1.
PATENTS-INFRINGEMENT-COI\S'rRUCTToN OF CLADIS.

.January 23, 1899.)

Infringement cannot be avoided by reading into a broad claim specific devices claimed in nalTower claims of the same patent.

2. SAME.

A change of form does not avoid infringement, unless the pateutee has specified a particular form as the means by which the effect of the inn'lItion is produced, or otberwise confines himself to a partieular form of what he describes. Even when a ehange of form somewhat modifips the construction, the action, or utility of the patented thing, noninfringp· ment will seldom result from such a change.

S.

S.UIE-INFRINGEMEN1'-PARTIES LIABLE.

Defendant was a member of a firm of architects which lul\E'rtised by circulars, etc., to furnish ore-crushing mills; but, having no manufacturIng plant of their own, on receiving orders, contracted with ot!Jers to furnish the machinery, according to plans and specifications furnished by them. They thus furnished designs for an infringing maclline, which was made mainly by the owner, at his own factory; and they preeted and fitted it for operation at his minf', receiving therefor a commission. Held, that the firm was a contributory infringer, so as to make a member thereof liable. 'rhe Schierholz patent, No. 538,884, for an ore-crushing mill, in whkh the principal feature is the combination of a fixed vertical central shaft with flexible intermediate mechanism between the gear and fhe crus], ing rolls, cavers a pioneer invention, and is entitled to the application ,," the doctrine of equivalents to suppress later combinations of the slim' elements or of mechanical equivalents therefor. Held, therefore, tlw i claim 4 was infringed by the Bingham or Trent and the Bradley Ill:! chines,

4.

SAME-OnE CnUSlIEns.

This was a suit in equity by the Risdon Iron & Locomotive 'Yorks against L. C. Trent for alleged infringement of a patent for an crusher. Wheaton & Kalloch, for complainant. N. A. Acker, for respondent. MORROW, Circuit Judge. This is a suit for the infringement of letters patent No. 538,884, dated }fay 7, 1895, for an ore crusher. TIll' inventor was August H. Schierholz, whose application for the patent was filed in the patent office February 5, 1895. By an assignment made after the application, and before the granting of the letters patent, Schierholz transferred all the property in the invention to the complainant. The invention relates to improvements in ore-crushing machines, in which crushing rolls are caused to travel within the circumference of a pan, upon suitable dies arranged around the periphery, and which have a fixed central post, and consists of novel means for driving the rolls, and allowing for the irregularities of movement caused by the ore over which the rolls pass, without interfering with the vertical shaft or its gear and connections. The details of construction are ,explained by reference to the accompanying drawings: