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FOR ATION-Cni..l!l RAILWAT TEN!$lojlfJiApPARATUS.' . I L ' · ' · " , .',', . LetteNl to Henry ,Root for a tension the a cable f!,-ilwaj",. cOllsisti,ng.of a cable wheel a car, wIlich 'is he.avy weight, ,and the wheels of "wM'Otitravel upon' the Tails' of a larger fr9.me or car adapted to slide upon a smtlonarY'irack and,lfa-vlng paw:ls to.' ,:eng:age with a 'holding, rack thereon, with blockS,a,U,q ,tacklefo,. clrawing the frame ,ba,ckward,the same by the ,roPe lIlRundll gipsy keyed the of the cable" wheel, 'possesses 'patentable'invention over" the Eppelshelmer patent, '(No.11l8,OO9, Issued Ang'llllt 7,1877,}wherelna single caris actuated by a weight. which Is raIsed a crank attached to a druJ;ll having suitable pawls.
Tbe'RootpBtent isfnfringed by an apparatus which differs from It mainly inhavlng'the timbeTs'bf the lower carol'!rame cut away to let down the car carrying the cable wheel,lso that both cars travel upon the stationary track. 1
Appea.lfrOmthe Oirctdt Court of the 'United states for the North· ern District'of .Oalifotma·. ',Bill bythe'Paci1lc Cable Railway Colllpany against the Consolidlit.ed Piedmont Cable' Company for infringement of letters patent No. 244,14:'1, issued July 12, 1881, to Henry Root, for a tension 'apparatus for taking up the slack of the cable in cable railway$. The oircuit a decree sustaining the validity of both claiJn$ of ·the infringement, awarding a perpetuaJinjuncti()n, and referring the cause to a master for an accounting 'as 'to prollts and damages. . From this decree the de· fendant appeals;.· A:ffirmed. . The patentee in his,specifications thus describes his apparatus:
"It conlllfltsbf a wheel. A, grooved to receive a cable, B, which passes around ft, as shown. ,The wheel,A. has its shaft journaled in boxes upon the frame· work of a car, .c, ,which is provided with wheilis. D. These wheels are flanged and run upon rails or which preferably set IJfli ll e .with the cable. 4:heavy chain or rope, is)secured to the rear end of the car, and passes back· ws.rd over a pulley, G, and thence down to a weight, H, sufIlciently heavy to keep thCil necessary tension on the cable. The rails on timbers,E, are united to a framework, I, which rests upon long timbers, J, also set parallel with the lin!! of formed or secured the cable. Upon the upper !lurface. of the timbers, J, strong racks, K, and thel'8u'ends of the timbers, I, have powerful hook pawls, Iu attached to, them. Thellil pawls engage with the teeth of the racks, and thus llold the timbers at any point where they may be plllced. In .order to draw the timbers, J, back', when necessary; a powerful double block, M, with suitable ropes. P, connects the rear of the timbers, I, with the solid 11lftsonry, N, at the rear of the tunnel. A .gipsy, O. Is keyed to the shaft of the cable wheel, A. and the end of the rope, P, Is carried from the block to the gipsy, around which it may be passed with a few turns, hang:ing loosely, so that the gipsy turns freely within it ordinarily. "The operation will then be as follows: When the cable is first put to work the weight, H, will be drawn up close to the framework; but. as the cable stretches, keeping up the tension, gradually descends until It is at the bottom the of the Pit. It is then necessary to draw It up again. This I do by drawing upon the free end of the rope, P, until It binds upon the gipsy sufficiently for the latter to wind it, and thus act upon the blocks and draw the frame, I, backward until
See note to the following case.
PACIFIC CABLE Rl!. CO.
the weight, H, is close up to the pulley, G. In the frame. The hook pawls, L, en gage with the teeth of the rack, and thus hold the frame. I, it! place. The tension is thus kept up, and the elongation of the cable is compensated witbout cutting it or having turns about a drum, and when the weight, H, has descended to the bottom of the pit, it is at once raised again by the block and tackle, without stopping or disturbing tbe cable. "
The chl.ims of the patent read as follows:
"(1) A tension and compensating apparatus for railway cables, consisting of the cable pulley, A, having its axis joilrnaled upon the movable car, C, and the chains, F. and weight, H, in combination with tbe rails or timbers, E, upon which the car travels, mounted upon a frame, I, which moves upon a secondary track, J, substantially as and for the purpose herein described. (2) The car. C, moving upon the rails,E, and supporting the cable pulley. A, the weight, H, and chain, F. and the rails, E. moving upon a secondary tramway, J. in combination with the operating tackle and the holding racks and pawls, substantially as herein described. "
Wheaton, Kalloch & Kierce, for appellant. W. F. Booth, for appellee.
Before McKENNA, "Circui,t Judge, a-nd· ROSS a-nd District J ' " ,
McKENNA,'Circuit Judge. Thepla-intiff's patent i$ for a tension .. . .. .. and means apparatus for 'cable railwaJ':$.. ·. . '.O.'Il.,bles by us.e '.s.tre must be provided to take uP'. It was.' wniatiy done by a weight in a to the cagle wheel. Manifestly the bottom of thepit',1,lj,s the limit, of the tension. That reached, the cable either hadto"be'sliortened by removing a part or by taking one or 1i10re drum or pPlley. As an improvement on this method,WiUiam Eppelsheimer, August 7, 1877, obtained a patent, (.No. 193,939.) ·. , .The object of his invention was to automaticaIly keep the" cable or rope at a certain tension. It was accomplished by the cable wheel being mounted on a car which moved on rails. This car also carried a shaft on which was keyed a drum and a ratchet which engaged in a rack on the rails on suspended in a pit as in the which the car moved. 'J.'he weight old method, and is attached to a drli'm passing over a fixed pulley. The operation is that, when the c,able stretches by use, the weig'ht pulls on the drulU, which is preven,ted from revolving by a pawl, and the cable car is:m.ovedin the opposite direction from the pull of the maineable. weight touch the floor of the pit by turning on which the drum is keyed, the stretching c4l1in is sho1'tenedby winding around the drum. When the pull is by any cause,fby the main cable, the drum is made to revolve, to windon it the, stretching chain. This was :'the state of the art when the patent sued on was granted, an<l:cH was hence contended that there is no invention in the latter.lrherear,e certainly similarities in it to the Eppelsheimer device,' but there are differences also. In both the tension on the main" cable is ultimately maintained by a weight, but the ways of raistng it are not the same. In the EppelsheimAr patent it is raised by the operator winding the chain on the drum by means of a crank. In the plaintiff's patent it is raised by a car with a pulley" mOJVing backwardS' under "the chain. fl'here are other differ,the testimony shows that they are 1i1ore ,than formal. 1hereswtis a more automatic and compensating ,adjustment than obtained. in the Eppelsheimer, ,Plilitent. The pla,illtiff's is a practical machine, but Mr. Bell, defendant's witness, and who devised its machine, hesitated to say that, the Eppelsheimer device was a practical one, and admitted .he would not have used its automatic devices. mUst hold,' therefor-e,and in this we are sustained be· sides by "the presumptions which., attach to the patent, that the plaintiff's patent is so far different in kind and degree to that which preceded it as to constitute, an invention. Has the defendant fnfringed. it? The plaintiff claims the inven· tion to be 3, cable pulley having its axis journaled upon a car which moves on rails or timbers, which agc'1in travel on a second track. It is called in the patent a track." In defendant's device part of the rails· and timlJen, which appear in plaintiff's device
CONSOLIDATED PIEDMONT CABLE CO,
PACIFIC CABLE RY. CO.
are cut the movable car whiCh supports the cable pulley, and upon'which'itis journaled, as in plaintiff's patent, is let down so that the car which carries the cable wheel and the car (if it can be called a,car,-in the plaintiff's patent the namels "rails or which carries the chain wheel moves ontha same track. This change involved 'minor alterations, which are not necessary to detail.· It is manifest there is an infring-ement. ,The purpose, principle, and operation of the macb,ines are the same, and the defendant's escapes exact similitude of construction to.the plaintiff's only by a few alterations. It is not a case of using the elements of a combination less than all. It is a case of using the same number of elements, and altering the form of one, aJ;ld not materially altering the relation of any to· the others. The objection of defendant to the question addressed to the witness Bell, 1io the function of ,certain parts of the plaintiff's and defendant's devices, is treated by counsel as involved in the other assignments of error, and must be considered as disposed of by the decision on them. Besides, if elTor, it cannot be said to have been a prejudicial one. Judgment is affirmed.
CONSOLIDATED PIEDMONT CABLE CO. v. PACIFIC CABLE RY. CO. (Circuit Court of Appeals, Ninth Circuit. No. 50. October 24. 1892.)
PATENTS FOR INVENTIONS-INFRINGEMENT-C01dlIINATION OF OLD ELEMENTS - EQUIVALENTB.
The third claim of letters patent No 189,204, issued April 3, Hl77. to Wil· liam Eppelsheimer. for an "improved clamp apparatus for tramways or street railways." which covers a combination of five old elements. one consisting of friction rollers, is infringed by a device containing four of the same elements. and a fifth consisting of a bell crank or a toggle; for both of the Iatter are well-known devices, and the equIValents of the friction rollers.
While a combination claim. composed of old elements. may not be infringed by using all but one of its elements, yet infringement results if an equivalent is substituted for the omitted element. 1
Appeal from the Circuit Court of the United States for the Northern District of California. In Equity. Bill by the Pacific Cable Railway Company against the Consolidated Piedmont Cable Company for infringements of letters patent No. 189,204, issued April 3, 1877, to William Eppelsheimer, for an "improved clamp apparatus for tramways or street railways." The circuit court entered a decree sustaining the validity of the third claim, finding infringement thereof by defendant, perpetually enjoining the same in future, and refelTing the cause to a master to take an account of profits and damages. From this decree, defendant appeals. Affirmed. The patent contains seven claims, but at the trial the issues were confined to the third claim, which reads as follows:
"The combination with the shank, E. as described. of the hinged clamping jaws. e 3· together with the operatjng slide, F, its crossbar, f2. and bearing rollers,. f. as and for the purpose specified. " JSee note at end of case.