\ (Circuit Oourt, D. Massachusetts.
In Equity. 7'. W. Clarke and B. S. Parker, for complainant. J. II. Millett, for defendants. COLT, J. This bill in equity is brought upon two patents issued to the complainant, James W. McDonald, for unhairing and scouring hides and skins. The first patent is dated February 5, 1878, and numbered 200,078. l'he second patent is dated December 10, 1878, and numbered 210,797. The defendants are charged with infringing the first and second claims of the last patent, which are as follows:
(1) In a machine for unhairing and scouring hides or skins, the combination, with feed-rolls aud a supportjllg roll, of a lever and intprmediate mechanism, whereby, by a si ngle mavenwnt of the lever, the feud-rolls are separated and the supporting roll is adj u8teLi with reference to the scouring-roll, all substantially as set forth. (2) In machines for unhairing. working and s"ouring skins and hides, the combination of the feeLl-rolls, DDl, one of which ran be separated and held apart from the oUlPr, and a scouring-roll and a supporting roll, G. which can be !noveLi and held from said scouring-roll. all arranged to operate substantially as and for the purposes described.
It can readily be seen tlJat in machines for unhairing hides, owing to the inequalities of thickness in tile hide, some means ·of adj usting the roll are necessary. In McDonald's second patent, by means of one motion of a treadle, the operator applies a system of leverage whereby the feed-rolls are separated, and the supporting roll is adjusted with reference to the scouring-roll. The feed-rolls are pressed towanls each other by SprilJg pressure, and the supporting roll is pressed towards the scouring-roll by spring pressure; by a single ment of the lever, againdt the spring pressure, the separation of the feed-rolls and the adjustment of the supporting roll. with reference to the scouring-roll. takes place. The first of the above claims covers the combination of feed-rolls, supporting roll, and intermediate rnbchanisrn, by means of which this adjllstment takes place. The second is simply for the combination of the feed-rolls, one of which can be separated, and a scouring-roll, and a supporting roll which can be moved from the scouring-roll. Owing to the distance between the feed-rolls and the supporting and scouring rolls, we find a bed, H,
!('nONALD V. WHITNEY.
(which serves to support the hide during its progress from the feedrolls to the scouring-roll,) set out in the specification and forming part of the fourth claim. As the bed, E, is necessary to the practical operation of the machine, it is urged that we must consider it as constituting one of the elements described in claims 1 and 2. We do not find the bed, E, included in those claims, by any proper construction of language; nor do we think the claims should be held to be void becauBe the machine, as a whole, may not be practically operative without the bridge, or that the claims become a mere aggregation of old devices, because the bridge is excluded from the combination. The gist of McDonald's invention, as described in claims 1 and 2, is the separation and adjustment of the rolls held together by spring pressure, by means of a treadle and levers. It is further urged, as a ground of defense, that, owing to the prior state of the art, McDonald cannot claim broatHy the combination with feed-rolls and a supporting roll, of a lever and intermediate mechanism, whereby, by a single movement of the lever, the feed-rolls are separated and the supporting roll is adjusted with reference to the scouring-roll, because this is old. We cannot consider the Townsend patent, dated April 23, 1872, No. 126,105, for improvement in leather boarding and graining machines, as anticipating the McDonald device. The machine is for a different object, and it has no cylinder of knives; nor are the rolls spring pressed towards each other; and there are other differences in construction and mechanism. The adjustment of the rolls in the Townsend machine. by means of a treadle and lever, for the purposes described, is quite different, as it seems to us, from the adjustment of the rolls in a machine for unhairing hides with a knife·cylinder revolving 1,200 to 1,400 times a minute. It is clear, also, that the Larabee patent, dated July 24, 1877, and the Sheldon patent, of October 22, 1878, both for unhail'ing hides, do not describe a device where, by one motion of the treadle, the feedrolls are separated and the supporting roll adjusted with reference to the scouring or work roll. The movement of the pressure-roll towards or from the knife-cylinder in the Larabee machine, and the lifting of the feed-roll from the pressure-roll in the Sheldon machine, by one movement of the treadle, do not, in our opinion, cover the McDonald device. There is also testimony going to show that, from all that appears, the McDonald invention was prior in time to Sheldon's. It is further contended that McDonald was not the inventor of the lever mechanism for operating two sets of rolls, but that Benjamin B. Bradford, assisted by one David H. Pratt, as early as 1877 or 1878, altered over a Roberts machine, so that by means of levers the two sets of rolls were simultaneously adjusted upon pressure being applied to the foot-treadle connected with the levers. Without entering into a review of the testimony, it is sufficient to say that, after a very
careful examination, we are satisfied that the defendants have not clearly established that Bradford, assisted by Pratt, made the improvements claimed prior to the invention of McDonald. The patent carries with it a presumption of novelty, and the burden of rebutting that presumption if'! upon the defendants. The evidence to establish prior knowledge or use must be clear and satisfactory, and beyond a reasonf\ble doubt. In view of the conflict of evidence which the record presents, we cannot say that the defendants have made out this defense. Hawes v. Antisdel, 2 Ban. & A. 10; Wood v. Mill Co. 4 Fish. 550, 560; Parhamv. American Buttonhole Co. Id. 468, 482. Upon the question of infringement we entertain no doubt. In the Tidd machine, so called, upon which work was done by the defendants, there are but three rolls, the pressure-roll taking the place of the under feed-roll and of the pressure-roll in the McDonald machine. By one movement of the treadle, however, the feed-roll is separated from the pressure-roll, and the pressure-roll is adjusted to the scouring or work roll. The feed-roll is spring pressed towards the pressure-roll, and the pressure-roll spring pressed towards the scouringroll. The only difference is that on moving the treadle the movement of the pressure-roll is lateral with respect to the scouring-roll, instead of vertical as in the McDonald machine. We find the substance of the McDonald invention in the Tidd machine. This suit is brought against Joel Whitney and Arthur E. Whitney, doing business under the style and name of Joel Whitney, and also under the style and name of Arthur E. Whitney. The father, Joel he employs his son as superintendent in his Whitney, swears shop .l1t three donars a day, and the son states that he has been employed by his father for 18 years. We find no proof of partnership. The fact that the work on the Tidd machine was done at Whitney's shop under the direction of Arthur E. Whitney, acting as superintendent, would not make him liable. It is not shown that Arthur E. Whitney has any interest in the business, but he is only employed by his father. Under these circumstances no action will lie against him. United Nickel Co. v. Worthington, 13 FED. REP. 392. A decree may be eutered against the defendant Joel Whitney, and the bill dismissed as to the Arthur E. Whitney.
WALKER GLASS CO.
SOUWEINE and others.
(Circuit Court, S. D. New York. July 25, 1885.)
PATENTS FOR INVENTIONS-POCKET-COMB CASES-PATENT No.1R4,310-NOVELTY. Patent No. 184,310, granted to Charles W. Walker, November 14, 1870, for an improvement in pocket-comb cases, held not void for want of noveHy.
In Equity. M. B. Andrus, for complainant. Henry F. Goken, for defendants. WALLACE, J. The invention specified in the complainant's patent (No. 184,310, granted to CharlesW. Walker, November 14,1876, for improvement in pocket-comb cases) is shown by the proofs to have been perfected by the patentee in the spring of 1875, although the ap· plication for the patent was not filed until October, 1876. No rea· son is shown for the delay that intervened between the time when a patent might have been applied for and the time when the application was made. In the absence of any explanatory facts, evidence offered to carry back the date of the invention to a period considerably anterior to the application for a patent, in order to save the patent from being defeated for want of novelty, should be criticallyexamined. Here, however, a disinterested and intelligent witness was produced, whose testimony was clear and decisive to the point, and no attempt was made to controvert or impair the accuracy and truthful· ness of his narrative. The only defense interposed is want of novelty, predicated upon the public use and sale in this country of the comb-cases manufactured ty Probst, in Nuremburg, Germany. It is entirely clear that the Probst comb-cases were imported by dealers in this country and sold here in 1876, and it is not doubted that such comb-cases were substantially the comb-case of the patent. But there is not evidence showing the public use or sale of similar articles prior to 1876, of sufficient cogency and conclusiveness to overthrow the presumption of novelty arising from the grant of the patent. When record or written evidence, such as the invoices from the files of the custom-house, is produced, the importations of the article are not shown to antedate 1876. The case of, the defendants is left to rest upon the unaided recollection of several witnesses, some of whom are evidently mistaken as to dates, and none of whom are able to fortify by any corroborative chcumstances their statement of the general fact that such articles were in the market here prior to 1876. . A decree is ordered for complainant.