slight ID1)chanism, it that onhe complainants' patent..'"While defendant contends that the normal condition of its watch is that of the windingengagenleot, yet, themoment 'the pressure upon the stem-arbor is withdrawn, the action of the ,spring as in the complainants' patthrows it into setting engagement the en t. In other words, a!3 I upderstand the operation of watch, it is normal in the' setting' ehgagement the same as coolplainants'i it is olj.ly ilj..Winding engageUlent while pOnstrailledthere by pressure from the to its innef limit., .','".. ", , As. I have already said, the Colby:patent, upon whicn this su,it is only to in the stem-arbor, sofaras brought, this suit is; cpncerned, which locking device is sheath of only the. stem-arbor. The proof shows affirmatively thatthe lnanufactures the mOyetnElOts or watches;. that it has never made any has made any steI11sor pendants with this locking device; and the complainants admit that' the only ground ing the <;leierl<lant ,liable, upon this Colbypa,tent is that it isa contributory i;l(ringer, arel\-dapted to be th,e Cqlby pendant, or device., I think it, is, an ab,i'nqaQt answertQ. ,this claim that,' the deJ,enqant's movement is adapted to. be used ",ith '!lny watch which the stem-arbor not directly connected with the stem-winding and hands-setting trains. Several such bors are'SP:ownin the proofs. , III the Himmer patent a device, is Iihown f()r in its variousposition$ by means 'or a"catch could,. llndoubtedly be applied to pe,ndants, or to the or latch, watch, if they saw fit. I therefore find that there is no infringeIl:Uint.of the Col1;>y patent. ' A <lecree may. therefore be prepared findipg the ,infrillges the 'first, third" fourth. fifth, a,nd Sixth claimspf theChprchpatent, and that it does not infringe the Colby patent, and the bill is dismissed as to the Colby patent.
CONSOLIDATED ROLLER-MILL CO.
J3ARNARD
&
LEAS MANUE'G
,Co.
(Cftrcuit Court, N. D. nlin0f.8. February 10, 1890.)
Patent No. 222,895, granted December 28, 1879, to WiIliam D. Gray, for "an improvemellt;in roller grinding-.machintls,·' and patent No. 238,677, granted March 8, are anticipated by the " 1881, too Sllid Gray, for a "rpl).er-mill for grinding and FrElDch'patents of 1875, and the Nemelka Lake English patent oJl1877; the adjustmentBof the rolls provided for by by tbe Gray patents being aceojIlpUshed by SUbstantially ,the Ilame adopted by the Nemelka 'though somewhat differently placed or modified. . 2. SAME-PATENTABILITy-INVENTION. , Reissued 'patent ,No. 10;139, granted to W.lL Odell; for '8 "roller·jIlUl," (original , Depember 13,1881,) is void ,for want of invention, the beingj;Jut the '06nbectioh of'the two shafts in '8 double roller Diill,' so as' t'o obtain 'a simultaneous operation of the two.
i.
P
.FOR 'iNVENTION-AllTICIP"TION-l!:E<lBANICAL EQtlIVALENTS.
.
528
.J'EDERAL REPORTER.
vol. 48. Birkholz, fol' ·
.. s.ur.. No. t89,628, . Patebt granted December lI6, 1889, to Hans In Equity.
arLuding-mill," la but a moditled form of t.he 1lrlt Gray lIawnt. \he.re lle1na DO Clitferenoe in the devioea.
-l'O1l.
Ro4ney Mason. Parkinson . . BLODGETT, J.
. for complainant. Parkinson and John W. Munday. for defendant.
The bi,ll in this as amended, charges the infringeof patent No. 222,895. granted December 23. 1879, ,to WilliamD. Gray, for "an bnprovement in roller grinding-mills." Patent No. 238,677 , granted March 8, 1881, to the said Gray, for a "roller-mill for grindin.g grain." Reissued patent No. 10,139 granted June. 20, 1882, to W. H. Odell, for a "roller-mill,"-the original of ,said last;.named. patent having been granted December 13, 1881,-and patent No. 269,623. granted December 26, 1882, to Hans Birkholz for .a "roller grinding-mill." While the bill charges infringenientof each of these several patents 'in general terms, the complainant's proof limits the charge to the iJafringement" of the fourth, fifth, and sixth claims of Gray's patent No. , 222.895; second and third claims of Gray's patent No. 238,677; second claim of Odell's reis8uedpatent No. 10,139; first claim of Birk'holz's patent 269,62;J.' . All these patents are. intended to be applied to machinery for the purpose of grinding grain by means of rollers in place of millstones introduced into ,this country at a comparatively recent date. It is conceded that the process of grinding grain by means of rollers as a substitute for the immemorial millstones, originated in Europe, and that the devices therefor had been brought to an approximately successful operation long before they were adopted in the United States. Henee all the patents in question here are for what are claimed to be improvements on the roller-mills of Europe, as our manufacturers found them developed and in use there. The Gray patent No. 222,895, granted December, 1879, is said in the specifications to relate to roller grinding-mills, and to consist of a peculiar construction and arrangement of devices f9r · adjusting the rolls vertically, as well as horizontally, whereby any unevenness in the \vearof the rolls, or their journals or parts, may be compensated for, and the grinding or crushing surfaces kept exactly in line. The invention also consists in the device for separating the rolls when not in action,without disturbing their parallelism. Only those portions of the devices cqvered by this patent, which provide . f6r ,the lateral adjustment of the surfaces of the rolls, so as to secure the parallelism oftheir surfaoes, and which provide for the separating of the their working position without disturbing their parallelism, . and the feature which regulates the working pressure of the rolls, are in . question b e r e . ' . ,, 'The proof shows that it waS common in the European roller-millS, . before Gray'. device was produced, to secure this element of adjusta-
CONsOLIDATED ROLLER--MILi co. fl. BARNARD & LEAS MANUF'G CO.
529
lJility by setting one of the rollers in fixed journals, while the other roller was set in a movable, sliding, or swinging frame, so as to be capable of such vertical and horizontal movement as to allow the requisite ve.rlical and horizontaladjustments. Finding the mechanism in this stage of is, with one movable roller,-and without considering for the present any of the devices older than Gray's for securing the desired parallelism of the surface of the roller, Gray; by this patent, secured this adjustment of parallelism of surface by means of two rods, G, extending horizontally from the ends of the fixed roller frame to the swinging frame, which holds the movahle roller j and these rods, being screw threaded at some distance 011 each end, allowed the desired adjustment for, parallelism to be made by manipulating nuts upon these ends so as to draw and hold the movable rolls into the right relatipD to the surface of the fixed roller. And, in order to allow the movable roll to yield or give way in case a hard substance, like a wire.· nail, Or gravel-stone should get between the grinding surfaces, spiral springs are interposed between the bearings of this roll upon these adjusting rods and the point where they are attached to the swinging frame. n had also been found in practical use before Gray entered the field that, when the mill was stopped with some grain yet in the hopper, the grain would fall into the space between the rolls, where it would rest, and act as a wedge or brake to retard, if not prevent, the starting of the mill a/!;ainj and provision is therefore made for separating the rolls, without disturbing their grinding adjustment for parallelism, by means of nuts upon the threaded ends of the rods, G, where they are attached to the frame which holdS the stationary roller, or by cams or eccentrics working upon the ends of these adjusting rods. These features of the patent are covered by the fourth, fifth, and sixth claims, which are: ."(4) In combination with the movable roller bearing, the rod, G, adjustable stop devices to limit the inward movement of the bearing, an outside spring urging the bearing inward, and adj usti ng devices. substantially such as shown, to regulate the tension of the spring. (5) In combination with the roller bearing, the adjusting rod prOVided, at one end with a stop to limit the inward movement, a spring. and means for adjusting the latter. and prOVided at the other end with a stop and holding devices, SUbstantially as shown and described. (6) The combination of the bearing, D, rod. G, uut, I. spring, H, nut, j, stop, n, antI nut, 0." The feature of the Gray patent No. 238,677, which is in controversy here, is the provision for working the eccentrics to which the ends of the rocis, G, of the first-mentioned patent are attached, where those rods are fastened to' the frame, which holds the stationary roll, by means of . the rod. or shaft which connects the two eccentrics, and enables the operator to work these two eccentrics by one movement of this connecting rod, so that both the rods, G, are equally extended or shortened by the motion of this rod, thereby throwing the rolls apart, so that the grain may drop through between them without wedging the rolls when the mill stops, and drawing them together again in their grinding position when the mill is put in motion, instead of requiring the operator to manipulate separately the nut 'or cam on the end of each rod, G, for such v.43F.no.8-34
'580 .en ahd ;"(2)
"hi
'I
"FE:bEnAt' nliiroRTER', whiF?"re:,.;t:l . . .
Fhe supports,.E..!\ud til", r?ds',G. connected thel'eto. the eccentrICS, H, sn,arts, I, &JJd rod,I\;·. (3) ,JncombmatlOn withthe ,tn,ovable roll E ·. ustably thereto. prO'Vlded wlth'two eccentncs connected to tlili rods. G. at bf one ,roll;.'\v'bereby tMrolimay be thrown into'and out of action inatl'nUy withoutcbanging thead]usting,devilies.",
TM featlir¢, of the' reissued Qdell j)atelit No. 10,139, in controversy for throwing the two setS of apart"frdtn their grinding position, lirid blinging themtbgetlJer again by 'ofa This lever being so arranged to 'Work slmu,taneous}y'Wlth the 'rpd" or' cams of the rods, G, or theIr equivalent¢ in the first Gray patEiHt, and this feature of the'patent is cov.ered by'tne'sebOndclaim, which is: ' . . ' .' thEj adj lIstable, ot'trailsversefshaftfl, h. athI:ongl1sbaft. J.link lnechanism, eonnt'ctmg- the saId shltfts, and ai!\ngle hand lever, K, 'with the'throngh shaft., for ,simultaneously,adjuRtingboth sets'of r0Us by a single lever movement. substalltiadly II, , , ' .
,'
''rhe· Birkhohi'p'atent No: 269;623; sbrar ,as in question here, shows a frame hnvinga fixed' 01' stiitionary 'roller; with Ii swinging frame or casbig pivotedto,tne fixed frame carrying:tpe other roller, and a transverse rod like Grny's'rod, the of, the roller and 8wingiJlg frilme;'ormovablerolIer,'froni the raller"can be adjusted bynleans ofmitsworking on this' rod, and a spdng at 'one end of the, rod to relieve the rolls incase'aIlY 4nusually harlf' Elubstance between them.. This feature is covered by: the first 'claim of the pate'nt. which is: , " .. (1) . with,
roo,
and adjllatable
of 'the fixed roller thereto. the by the standard" and the spripg conindependently thereof. "." '
';The defenses insisted, upon are: (l)\Vant of patentable in the claims of which'infringement is. (2)' 'That the defend.arit does MtinfriiIge; , , . ' '. I have already said that when Gray, the art he found already there methods of adjustipg the rolls so .a,s to bring their axes into the same hQrizontal plane and methods pf itdjusting the parallelism of the ,sur/ace of the rolls.. I may add he f6und also metnodsof separating the rolls SO that they .would not bind br ,b'e'wedgedby grain dropping. between them when the rollers were atrest,whi,ch separation did ll,ot disturb their parallelism, and the materiaLqnestio'ns are whether modE; of securingthese'severaladjustnlents are hew art, and if they s:re found t:lO, 'then whether the copied Gray or ,the older lllachines. '. I do not deem it neceSsary to' analY,ze all the prior devices put in evidence btthe defendant, and which itis claimed show the sameadjUstmentSaccornp'lfshed prior tei Gray's, invention byotqer inventors," it l>eii'lg; 'itS I 'think, sufficient to' consider the Nemelka Austrian
CONSOLIDATED
CO. ". BAItl'iARD &,
MANUF'a CO.
531
patent, and the Ne,II)elka of 1875, 'llrnd the Nemelka Lake English patent of 187,7 1 together with some casual referepce to the other patents and descriptions found in the record. Gray, in his provided for four adjustments, or what may be called adjustments': "(1) The vertical adjustment. which was intended to bring the axis of the rolls into the same horizontal plane, which is not in quest,ion here. (2) The adjustment of tile surface of rolls to parallelism , thatis, bringing their grindin/{ surfaces paralM to each other, so that they would grind uniformly their entire length. (This is caliI'd · tramming' in the proofs, the word bl'ing importl'd into this art ,of milling from the older art of grinding with millstones, wllere it was necessary to bring the grinding surfaces of. tIle stonel! into perfeet parallelism w,ilh each other, in order that they mightgrInduniformlyall the grain that passed betwel'll them.) (3) The device for spreading the rolls apart, or tbl ow'illg them out of 'working position, to preve'nt their becoming wedged or bound by the grain dropping between them without dislJllrbing their adjustment for parallelism or their vertical adjustment. (4) And adjusting the .pressure of the spring so as to hold the rollers with suffiCient rigidity together for the purpvlle of grinding. and at the same time allOWing them to ,yil'ld whl'n any ullusually or unexpectedly hard substance should come bet ween them. " And the devices of his patent which are here brought in question all have reference to these An examination of the Nemplka devices as exhibited in his Austrian and French patents and in the EngHah patent, to Lake, and in the model of the French. Nemelka patent, which is before ihecourt, and was used upon the hearing, shows tbR.t each of these adjustments is provided for in those and by subwhich Were adopted by Gray, alstantially; the same though somewhat differently placed or modified. For illustration, Gray provided lor the vertic-a1 adjustment by a cam or eccentric, working upon thi'lpivot by which the swinging arm carrying the movable roller was attached to thldrame, while Nemelka aecomplibhed his vertical adjustm,ent by a screw worked by a worm, wbich, for the purposes of the question here, must" I think, he considered the equivalent of Gray's cam or eccentric. Nemelka also showed a swinging frame carrying a movapivot by which the swinging ble roller, with a cam working upon frame was fastened to the fixed frame, by means of which the rolls could be separated without disturbing their parallelism. ami a provision for adthe rollers to parallelism by slidhlg the upon the fixed He also shows a spring to hold the movaLle roll to its grin<li'ng position and pressure, with means 101' regulnting the pressure of the spring and the grinding distllnce by means of qauls, screws,,. nuts, anti I c:annot resist the conclusion that all which Gray did by his first patent, under consideration, was t6 secure tbe same alljnstments which are shown in these prior machines hy, in mallyrespects, the bRUle instrumentality 1 but differently located, ,.well-known equivalents of .. ' TheespeC1al feature of Grriy's second patent, by which his two G,are .mo\'ed in\vard1y outwardly by the operatiQI) of the cam, to which they are connected 'at ,iheir inner ends, whereby the rolls are thrown dis,tu!bipg their gr,ioding also .shown
or
582
FJCDERALltEPORTER,
vol. 43.
in the Nemelka Ftench patent, and it is there accomplished by the use of cams, not working upon the ends of transverse rods like Gray's rods, G, but working upon the pivots by which the swinging frame is pivoted to fixed frame; these cams being connected so that they were oper· atl;ldsimultaneously by a movement Of this shaft. So that I find in these older, devices all that'is covered by the two patents to Gray. The Odell patent shows only a device for sl;lparating the two sets of rolls·of the double roller-mill by one movement, and I am compelled to say that I cannot conceive that it required invention to connect the shaft by which the cams in one movable roll were operated simultaneously withtbe cams of the other movable roll in a douJ:>le mill. The ordinary and w.ell-known device by which all the bolts in an iron safe. door are shot by the of a single lever seems to me to fully anticipate whatever:there is in the second clnim of this Odell patent, all which is fully explained by the testimony of defendant's expert witness. ,TbeBirkholz patept seems to me to be only another form of Gray's fi'rst"patent. I see nOthing in his connecting his swinging frame by his rod, F, to essEJntially differentiate that device from the device shown in the first and second patents of except that he shows only one rod, and locates that below the rolls instead of above, which it does not seem to me is a patentable difference. But if there were room for doubt in the question, whether there is any patentable difference in the device of Gray apd of Birkholz, I shall be constrained to find from the proof that the defendant does not infringe this patent, as I can find nothing in the defendant's structure which corresponds to the rod, F, either in function or location. ' I will say fllrtherthat, if r deemed it necessary to enter upon that field of the case, I think it is fully demonstrated from the defendant's proof that the defendant's devices for securing the adjustments in their mill, substantially the same as are secured by Gray, so far differ from Gray's as that no infringement can' be charged against the defendant. The defendant's mill No.2 contains a swinging frame carrying the mov- , able rolls, but does not contain the rod, G, of the Gray patent with the cam operating upon the end Of it, and does not secure the spring pressure to holq the roll in working position by a spring located upon such rod. The'llerendant Secures the movement of separating its rolls, without disturbing their parallel or vertical adjustinent; hy a cam located in the pivot by which the swinging arm is attached to the frame, while Gray gets his movement by whatis practically the elongation of his rods, G, by meane of the cams at the.ir ends. I have been ,'ery much embarrassed in the examination of this case by the opinion of the learned judge of the eastern district of Michigan, in the caseM This Complainant v. Coombs, reported in 39 Fed. Rep. 25. I. have carefully examined. that opinion, and the proofs which to the court in, the case, sincerely hoping that I were be enabled to arrive at the same' conclusion with the learned judge who tried that' case, as I think no dne is more anxious than myself to preserve and act upontbe rule of cc>mity, which it seems to me
BRUSR ELECTRIC CO.
v.
WESTERN ELECTRIC LIGHT &: POWER CO.
533
should prevail between the federal courts in cases involving the same patents; but after mature and careful consideration I feel constrained to say tbat my reading of the prior art satisfies me that Mr. Gray in effect invented nothing. He merely adopted well-known equivalents for the mechanism known and shown in the prior art for producing the same adjustments which are secured by his machine, and operating in substantially the same way. And I do not see that Gray, from the proof before me, has any right to be claimed as an original inventor, and entitled to invoke the doctrine of equivalents in regard to his mechanism in any respect. He came into the art at so late a date, and when others had covered the same ground which he attempted to cover, that, if his patents are to be sustained at all, they are to be 8uetained only for the special devices which he shows, and which I am clear the defendant in this case does not infringe. I may further say upon this point that the, rule of comity perhaps ought not to be invoked by the complainant here to the same extent as in most cases where it has been applied, for the r,eason that in the case of Thi3 ComplaiMnt v. Freeman,! heard before the learned district judge of the western district of Wisconsin several years since, that court, upon the testimony which is now before this court, in these French and English patents, held that Gray's patent was invalid for want of novelty, and dismissed that case; so that WE: have here a decision in this circuit against the complainant pressing with equal binding 1'orce upon us as does the decision relied upon by the complainant from the eastern district of Michigan. The bill is dismissed for want of equity. ON REHEARING.
(JUly 14, 1890.)
Now comes the defendant by its solicitor, and the court, having considered the complainant's motion for a rehearing herein, overrules the same. BLODGETT,
J.
BRUSH ELECTRIC
Co.
'I).
WESTERN ELECTRIC LIGHT &; POWER
(Circuit Oourt; N. D. 01li£o. PATENTS FOR INVENTIONS-INll'RINGBMENT.
15, 1890.)
, Letten patent No. to Charles F. Brnsh for an electrio lamp, are valid,and cover all forms of mechanlsm constructed to separate two or more pairs or sets of carbons dissimultaneously or successively, so that the light is estsblished between the members of but one pair or set at a time, while the members of the remaining .pair are kept separate. The word "dissimultaneous, "used in his claims, refers to that separation which results in the production of a single arc. This patent is infringed by patent No. 418,7Q8 to Charles E. SCribner for an electric arc-lamp, notWithstanding tbat the primary or initial separation of the two pairs of carbons ,ip the Scribner lamp is simultaneous.' , -{SyUab'UII by the Oourt.) . 1 No
opinion was filed.