QPERi\.L REfORi1l111,
xol. 61.
,.1 ... '
,' . p
BROWN ?ONuF'G cd.Gv; DEIJJREet aI. ' SAME v.:HiVJ::p BRADLEY ?dANUF'G 00. Court ot APpeatls, May 1, 1894.) . Nos. 88 and 89. OLAIM.
vators; consisting of a tube or pipe bo;i: turning loosely on the horizontal ends of the crank aXle, connected with a head to which the forward ends ottbeplow beams are bolted, and provided with means for turning it against the grllvity of the cultivator in the rear, the first claim, for "the pipe bq:X;"Il;ovided with lI.projection a,dapted to co-operate with a spring, to rock the said pille box against or with the weight, of the rear <!ttltIvators' or plows," cannot be construed as for a combInation of ,the pipe box described with' other parts of a cultivator named in, ,tile claim ,or specificlltion. and must be limited to tile particular forms .,ql ot the pipe box 61 Fed. llfIlrmed.
4, tpe . :atoW1l patent, No. 190,816, to!: an improved coupling for culti-
APPeals 'from the Circp1t' Courtd( ,. the United States for the Northern Distrl:ct of illinois. ' .. ' ,.: 'two. SUits, by. the Bro'YI\, obe Co., and the otheragamst the DaVId Bradley .of a patent. The ,drcuit<!ourt 'deei4ed in favbr of complainant (21 Fed. 709), but. upon a reht:!aring oil. its own motion, rendererl' decreeS in: both cases for defendants. '51 Fed. 226; Id. 229. Complainant appealed. These suits each brought to obtain an Ilccounting and an injunction against' infringement of the first claim of letters patent No. 190,816, which read, as folloW!!!:: , "Be it kn0vvn tilaq, William P. Brown, of Zanesville,'ln the county of Muskhigu'm, and. state ,of Ohio, have invented a new and improved coupling for cuItivator;and I do hereby. declare tilat following is a full, clear, and exact description of the same, reference being haa to the accompanying drawing, forBJing part of this' specification, in whicb· Fig. 1 is a perspective view of the for II1 of cultiVator to which my coupllng is to be applied; Fig. 2 is a side view of oneo! the coupliI)gS,looking in a line with the axle; Fig. 8 is,a front view of one of the couplings; looking at right angles to the axle; Fig. 4, an enlarged transverse section through line, x, X, Fig. 3. invention relates to an improved form of coupling for fastening the beams plows or the axle of a wheeled culticonsists in the particular construction and arrangevator. The ment of a tube' or' pipe box turning looiSelY' upon the ends of the crank axle, and connected,through anadjnstable stirrup or sleeve and brllcket, with a head having along bearing at'right angles to the pipe box, to. WlJich head forward ends Qf the plo:", beams are bolted, while the pipe bOx Is provided with .means for turning it the graVity of the attached culti'Vator in the' tear, whereby the said cultivators are manipulated with greater ease, as hereinafter more fully described. !',{q the drawing, A represents' the longitudinal bill'S, extending forward to f<\l:W\thetoilglle, ,apdconstitutlng. the,mlj.ip,p;.ame of a Wb.eeled cultivator, to my inven.tion is applied,. which. bars ,are arranged npoll. the elevated cra'i:tk axle" n, impJ;>0rtedupqn 0., liP.'on.. the, hOl;izontlj.1 parts of said axie, between' the uprlgni portions' arid the wheels, are arranged my couplings, which secure tile beams of the p'lows 'or gangs,:D; 'These couplings axe constructed as follows: E are tubes or pipe boxes, which embrace tile axle, B, and turn freely thereon. G Is a stirrup, which is held to the pipe box, E, by means of a loop, s, and is made to rigidly connect with said pipe box by means of longitudinal ribs upon the stltTup, which engage with corresponding ribs upon the pipe box. The stirrup, however, instead of having a loop, s, may be constructed in form of a sleeve, and made to embrace pipe box,
BROWN MANUF'G CO. V.DEERE.
973
E, In which case it will be' adjusted thereon byi a· screw bolt, a, whose inner end may bear upon a roughened steel jib, which bites the pipe box, and prevents the sleeve from slipping. Said stirrup is formed with projecting lugs or brackets, H, which are perforated to receive a pivot bolt, b, arranged vertically and at right angles to the pipe box. Around this bolt, b, is arranged the head, I, which Is made with a long bearing, to which head the forward ends of the beam are bolted. Referring to the feature of the pipe box and adjustable sleeve, I would have it understood that I do not claim such broadly, as the same idea is shown in patent No. 108,945. J. is a cap fastened to the crank axle between the hub of the wheel and the pipe box, by means of a staple, c, which binds around the axle, and is fastened to the cap by nuts, d. This cap serves as a stop to the hub of the wheel, to separate the same from the pipe box; and its curved and flanged end, e, acts as a guard to keep dirt and other obstructions from the bearings of the wheel. K is a brace designed to stay the axle to the tongue; and L is a link arranged in the staple of the cap, J, to which the draft attachment is secured to properly distribute the strain upon the implement. "From the above description, it will be seen that the gangs of cultivators have free and easy motion laterally, from rigbt to left, 011 the long bearing of the vertical pivot bolt, and also a free movement vertically upon the axle (by reason of the pipe box}, when it is desired to lift the cultivators, either to hang them upon the hooks of the frame, out of contact with the earth, or to raise them for any other purpose. To render the manipulation of the plows or cultivators easy, I provide an alTangement springs, weights, or the draft power may be utilized for sustaining a part of the weight of the said cultivators when they are lifted from thegroulld, to be hung up,or shifted laterally. In accomplishing this, I construct the pipe box, with a hooked arm, M, and arrange a stiff spring, N, of metal or rubber, upon the main frame above, so as to engage, by means of a loop, with the end of the arm, M, to rock the pipe box; and as the cultivator beam in the rear is rigidly attached to the pipe box by the stirrup or the sleeve, and its screw bolt, the spring has the tendency to rock the pipe box, and assist the driver in lifting the cultivators. "I do not claim, broadly, the application of springs to sustain a part of the weight of the cultivator, as this is shown In my patent No. 128,701, of 1872, but I do claim a pipe box provided with an arm or projection adapted to rock the same; and, referring to this same feature, I do not limit myself to the use of a spring operating In connection with such projection, as the pipe box may be provided with a perforated flanged projection, M', to which the draft attachment may be directly fastened, and so arranged as to utilize a part of the draft to produce the same lifting effect upon the cultivators when attached above the center of the pipe, and, when below the center, assists to make the plows mn deeper, and when the plows are raised out of the soil ()r dirt the draft on projecting flange ceases, allowing the spring to assist in lifting the plows. In the place of the flange mentioned, a counter weight may be employed for the same purpose, or a sheave or pulley may be arranged on the pipe box with a chain, to produce the same effect. "In making use of my Invention, the sleeve or stirrup and brackets can be adjusted to regulate the width between the duplicate cultivators by slackenmg the set screw (it a sleeve be used) that binds the same to the pipe box, ,or by disengaging the ribs and grooves of the pipe box and stirrup, and moving said sleeve or stirrup as desired. These ribs or the set screw, it will be seen, hoW the arm, 1\1:, in an upright position to allow the spring its proper tension, and, by moving the set screw and stirrup or sleeve, the tension of the spring may be regulated as desired. The set screw, or its equivalent adjustment, also serves to hold the sleeve or stirrup and brackets rigidly in place, to give the plows or cultivators a firm and steady upright position. The length of the tube of the pipe box gives a long bearing for raising and lowering the plows, and, while causing the latter to held steady, affords also an easy motion, and one that cannot get cramped. The length of the pivot bolt, and distance between tbe brackets,also ,permit the coupling head, I, to be sufficiently deep to prevent the rocking or swaying motion of the plows when gUided by the driver; and, among other advantages, may be mentioned the small degree
97/1:
FEDERAL REPORTER,
vol. 61.
of frlct1ot1:whlch 'Is: secured by the,loUg bearIngs of the pipe box and the hea<f,andalsbt:ti& tact that its construction is such that its, bolts cannot be made too tight, hence there Is DO Uabll1ty of its part.$, being wrongly adjusted by the unskilled. With respect to counteracting ,the gravity of the cultivators or plows, by means of the projectingfiange or arm and spring, Or' its equivalent, it, 'Will' be .seen that Unot only assists tile plowman in operatingthe plows, and also in banging them when not In USe, but it also acts as a counterbalance ,to the tongue, and. thus relieves the neck ,of the team from the weight of the same. It ,also prevents the shovels from getting dull so rapidly" for, as tile under sides· of said, shovels do not press so hard upon the , earth,. the force of, the earth is more nearly equaliz.ed above and below the point, 'Md the, shovel is easlly worn above and below. It also assists the shovels In,$couring, as they lUIe held IOQre uniformly and with a more elastic pressUl'e"against the face of the sol1, especially when the flange, M' , is used, which, ;When the draft is from the bottQm Qf the same, causes the Increased resistance. to thesbovels (which the hard places atrord)to compel the draft to force the shovels deeper into said hard places, instead of skimming over , "" the "Ha'l'iingtbus dE¥1criped mY, what I claim as new is: a projection adapted to co-operate with a spring, ·wEl1ght,. or the draft.. tQ rock, tbe said pipe box against or with the weight of ,the, ,rear cultivatoj.'s or plows, substantially as and for the purpose described. " "(2) Xhe<lQmbtDation, wltll,the crank axle, and the gangs Or plows, of the pipe arm, ¥, spring, N, attached to the maiL\ frame, the head, I, and the G, or havlngbrackets" H, and, pivot bolt, b, and fastel:Jedtp the pipe as and for the purpose described. "(3) The J.D, bavinglongitudinal ribs, CCflmbin!ld with the stirrup, G, gr\,l<>Ves and a clamping device, substantially as described.",.; t, i ,',' : " , : . I ,', " ' " , : Of the, drawings the flrst is taken from one of the briefs in the case, coupllnKalQne; the, I;le,c<>nd mtigttre 2 of the patent, and shows the coupling in complnation or connection with other parts of, the cultivator. " ! " Among We '(lefeilAAs were denials of infringement and of, illventioll, with references to tlle prior. patents: NQ. 9,086, !Vanted to A, H.
and
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.,
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-BROWN MANUF'G CO. V. DEERE.
975
Allison; No. 26,606, to P. Monaghan; No. 45,721, to It. Jordan; No. 61,649, to A. H. Allison; No. 65,573, to J. Holltngsworth; No. 70,643, to H. K. Stoner; No. 72,456, to Philip Coonrod; No. 73,9!12, to Martin Heyden; No. 82,938, to B. F. and J. V. Guy; No. 96,379, to W. S. Baker; No. 108,276, to L. Luppen; No. 108,945, to D. C. Stover; No. 127,878, to William Haslup; No. 128,701, to W. P. Brown; No. 134,540, to G. A. Grove; No. 140,513, to L. Litchfield and H. S. Corbin; No. 154,666, to M. L. Gorham; No. 164,180, to A. J. Judson; and British letters patent No. 1,582, dated July 5, 1856, to Thomas Smith. The couplings used by the appellees were made under the patents of Moore, No. 217,811, and Bradley, No. 270,629, which the appellees, respectively, own, and are illustrated by the following drawings: Moore coupling. Bradley coupling.
By the first decision beloW, reported in 21 Fed. 709, the patent was ullheld; but the court-having. of its own motion, granted a rehearing-declared its final conclusion that the claim in question was not, as cont",nded by the complainant, for a combination, but for the deVice, "a pipe box with a projection adapted to co-operate with a spring." The following extracts from the brief of counsel show the chief points of the argument made here in the appellant's behalf: "Omitting, for the present, the elements of 'weight or the draft,' the devices which are specifically named in the claim are, (1) the pipe box; (2) a projection; (3) a spring; (4) the rear cultivators or plows. Implying, as we must, a main frame, which is an element in all such machines, it is perfectly plain that, adding this, we have all the elements required to construct a working combination, and that all of them are absolutely essential. It is also true that, by the phraseology of the claim, these elements are all united together into a working combination. As to tllat there can be no dispute. Hence, nothing is wanting to make a technical combination of it, except the word 'combination' itself, or the word 'combined,' or the word 'arranged.' If any of' these three words were in the claim, there would be no room for dispute. The word 'adapted' is the one which is used. It would seem to require no great stretch of language to construe this word 'adapted' as meaning 'arranged' or 'combined.' That, obviously, is its force, and obviously was the intent of the party who used it. How adapted'! The adaptation is made by putting the things together in the way which is shown and described in the patent, and until that is done there is no adaptation made, within the meaning ot the patent law. A mechanical device is 'adapted'to '-do its work by being actually put into co-operative relationshIp with sUch
916
This is the' highest an4 :Xl10llt perfect adaptation .known to .the fa w, and when it Is done a com· binatlOP 1$ made. Hen<lei,'" it is S1i1bmitted that the devices being named whichD).ake the comblnl!.tklll;their relationship being described . andseLfcn1hfuIly and speciflcallY,and a co-operative relationship in the machlnefbQlng clearly caIled.t01' 1>Y the wor.d'adapted,' it clearly follows that the clahn In question should })e construed as a. combination claim; the more so, beca1;l8e. ,by such consU'u,ction, ,the invention, as actually made, will receive the proper .protection. "': "Let: WI :turn now to the, question of function, I have said that, as a matter of fact, the use of a weight in the Brown combination in lieu of· a spring (assuming It to be usable at all) would introduce into the Brown cultivator a function ,previously unknown In the art. This function may be thus stated: Making a weight or spring coact or co-operate with a hand lever or handle in the manually directed movements of the cultivator shovel in such a way that the or ,.should always be an auxiliary device, and should never beiRn opposing d.evlce. That thing or function was absolutely new with The cG-operation of those two elements.-the spring or weight, 'PIl the one (or include, If you please" the draft of the team). the hand1leter or handle through which the C'\1ltivator shovel was m#J.uallY guided 111 dP ing its work, and so as always to b.e a help, and .' never fl. 'hindrance-wdubknown in the art until Mr. Brown did it. This Is the 4ilal and material in the case; and, this fact being. true, it is sub· mlttedthat the validity 01 the Brown patent cannot be called in question. ,Involves a new function is al",»-Ys patentable. A new machines which travel about from place to place, a weight is Dot, as' a general rule, the mechanical· of a spring. While Mr. B1-(>wn, when be applied for his patent, un'doubtlJdlythought that, for the purPoses of the hlv,enltion in question, a weight waS practically, as well as'theoretically, the 'equivalent of a spring, the simple fact is that, in so so sllylng,. It was ap.errol' on his part.nothing anerr(>r which ought not to prove fatal to his patent. in view of the fact, first, tllat the actual invention which he made was, incontestably nov:el .. and has proven to be of great value, and in view of the\still. other fact' that the defendants have undoubtedly used it. In many kin(ls'of stationary machinery, weights can obviously be substituted for springs without invention, and with beneficially the same results. Where they can .1;I,e so substituted, they are equivalents,. and otherwise not. In most kinds of mov:able or portable machinery, they. are not equivalents. Thus, in they are not equivllients, though they may be in statioI/-ary clocks, they are not. equivalents In eye glasses, and a weight WOuld be a sorry equivalent for Il spring in a carriage or in a .bed. Whether theyarll equivalents depends upon the environments. It is also submitted that the whole question of weights as mechanical eqUivalents was practically dispos,ed of in the first decision in the Deere Case, and on the principle there enuriCiated and applied, non vitiatur;' and to this the court very properly added: 'Utile per 'Whatever part of this claim maY be deeme4 to have reference to the projection, M', it seem!;! to me, is of no moment, for the purposes of this case at least. use this part of this claim, or anything for it is not claimed that equivalent to it.' Manufal;turlng Co. v. Deere"21 Fed. 709, 711. So of the weight. Neither party use!;! it, or ever has. For the purposes of this case, all reference ,to It!Il!ly properly. be disregarded, or it may be rejected as surplus.' . , age." .' ., ·. . "In thelnventlon now in question, the place of is, the place where the. connection was made. through wbich the spring acted on the cuI· tivator beam-was changed from the cultivator beam itself, anP. was shifted forward to. a radial arm or projection, which was made for the purpose on the pipe l;Iox. It wll1be.reIJ,lembered that the, forward end of the beam is pivoted to a pipe box on .the. axle by a verdcal joint. This verUcal joint permits sidewise motion,; J:l,nd through the pipe box Itself, turning on the axle, we get vertical mptlon. The problem was to hitch the spring so that It would aid the. operator 1nthe vertical movement of the beam, .without interfering with the sldeWiseIJ,lovement. J;n to do this, Brown made on I'
,CJther' devices .as will· ena1)le .It to perform its function.
BROWN MANUF'G CO.
v.
DEERE.
977
his pipe box an arm, M, which extended radially out from the pipe box. To this he the free end of the spring, which in his patent is J;llarked 'N,' the other end of the spring being fixedly secured to the main frame. Hence, the Brown invention, stated in a general way. consists in hitching the spring to an arm or projection which extends radially out from the pipe box in any desired direction. · * * The invention. properly construed, takes in any place of hitch at or forward of the vertical pivot bolt by which the cultivator beam has sidewise motion. This is the only part of the invention which is now properly in controversy."
George H. Christy, for appellant. Bond, Adams, Pickard & Jackson (John R. Bennett, of counsel), for appellees. Before WOODS and JENKINS, Circuit Judges, and BAKER, District Judge. WOODS, Circuit Judge (after stating the facts). We quite agree with the court belOW that the first claim of the patent in suit is not for a combination of the pipe box described with otheI.' parts of a cultivator named in the claim or specification, but for the pipe box itself, as a single device, designed and adapted for use in the several ways specified. The contrary contention requires that the word "adapted," ,as used in the claim, be given a strained and unwarranted significance. It is not even approximately synonywith "combined;" and a substitution of the latter word would mous_ be inadmissible, unless the words "to co-operate" were omitted. If the word "arranged" were substituted, it would have the same meaning as "adapted," unless, again, "to co-operate" were omitted. We think it clear that the first claim of the patent is for "the pipe box with a projection," which projection may be adapted to co-operate with a spring, or with a weight or with the draft, for the purpose of rocking the box either against or with the weight of the plows,-one or both; and while, by the claim, the box has one projection, two illustrations, M: and M', are given of projections which may be employed, and it is suggested in the specification that instead of the flange, M', a counterweight may be employed, or a sleeve or pulley may be arranged on the pipe box with a chain to produce the same effect. It is easy to see, too, that weights, instead of the spring, might be connected with the" arm, M, so as to rock the box in either direction. Indeed, that arm might be lengthened, its upper end enlarged so as to constitute a weight, and a joint introduced near the box, whereby the weight could be turned forward or backward to move the box one way or the other, as desired. The specification of the patent was drawn, of course, to describe the elements and functions of the elements of all of the claims; and, when they are considered together, it is clear enough that the first claim was designed to be broadest, covering simply the pipe box with a projection, which might be in any of the forms illustrated or suggested ; the third. to be less broad, covering the same pipe box, except that it should have "longitudinal ribs, com· bined with the stirrup, G, having corresponding grooves," etc.; and the second to be yet more narrow, covering "the combination, with the crank-axle and the gangs or plows, of the pipe box having v.61F.no.9-62
·
the main frame, the head, The interpretation I,andt.J:1e stirrup,' G; (i1'itsetluiyalent," wbicl;)wearl:l asked to put upon the first claim would make jt essentially the same as the second. The proposition of the brief is "that, for the purpose of the present case, the claim is to be eonstrued under the law as a clahn for a combination in a corn eultN'atorora pipe boi,' a projection thereon, a spring hitched to such projection at its free end, and one or more 'rear cultivators or also pivoted to the pipe box; these being so connected and 'cdntbiJied that the 'spring, acting through such projection, shall co-operate with the operator in the manipulation of the beams by It is only under the emergencies and "for the purpose of the present case" that such a combination could be read into. the claim; but, if so interpreted, we should still be compelled the claim aa"toid of invention, or :at most subject t() a eonst,l'T.lction which would be too narrow to support the charge of It is uotcontentedthat the supposed combination new element, or is made up of parts which had not been. employed together' in earliet cultivators ,to perform the. same or simUarfndividual fnnctions.A new combin result is insisted d upon,and, one novel feature of construction, 'is asserted, Which, it is said,cOnlilf£!ts £limply. in changing "the place of hitch" for the ,spring from, the, ·plowbeatn, where it had theretofore been, to a projection made for the purpose on the pipe box; thereby accomplishiJ).g theaUeged new result of avoiding .the tendency ,of the spring, when attached in ,the old way, to resist lateral m()vements olthe ploiW, "The problem," we are told, "was to hitch the spring so that it would aid theoperato'r in the vertical movement of the beam witlwnt interfering with the sidewise movement;" and it i£!asserted that invention consisted in the discovery that the resistance to, sidewi£!e movements could be avoided by hitching the spring in front of the vertical bolt upon which the plow beam turns horizontally. But.in the cultivators made by the appellees the spring was hitched to an extension, either of the bolt itself, <>r of the upper arm of the stirrup through which the bolt passed; ,and it in order to maintain a semblance of in,fringement, to enlarge,still further the scope· of the claim. Aceordingly, it is insisted that, properly construed, the invention includes any place of hitching at or forward of the vertical pivot bolt. Btlt this proposition, manifestly, is not completely applicable when a weight is used in lieu ofa spring; and hence it became important, it not imperative, to say, as it has been said, that while thought :that for the purposes of the invention "a weight was practically, as well as theoretically, the equivalent of a spring," he was· mistaken· in that· particular. But that this assertion was unwarranted is shown by the suggestion already made, that, instead of thesprin-g, a weight might be attached to the arm, M, without· change in its construction, so as to perform. the exact function. of, the spring, or, to accomplish the same effect, the arm itself might· be lengthened, enlarged, at its outer end to produce the requisite weight, .and jointed near the pipe box. This last
BROWN.MANUF'G CO.
979
construction would be substantially identical with the weight and lever shown in the English patent to Stnith, No. 1,582, for improvement in horse rakes. Brown therefore made no mechanical mis·· take in treating a weight, for his purpose, as an equivalent for a spring; and, if there was mistake at all, it was because thereby the fact of anticipation by the English patent was made more evident. The attempt to distinguish between the pipe box of this patent, when moved by a lever and weight, and the pipe box of the Smith patent, with its lever and weight, because one is used in a cultivator, and the other in a horse rake, is necessarily unsuccessful. A more complete analogy in construction and function between things not identical it would be difficult readily to conceive. But following the line of the appellant's argument,. and leaving out of view, for the purposes of the case, the weights and draft mentioned in the claim, and the sleeves and pulleys suggested in the specification, and considering the spring only as a fit means for . performing its allotted function, our conclusion cannot be different. While it is plainly true that the spring, when hitched to the plow beam, will tend to resist a lateral movement of the plow, the extent of the resistance, it iii equally clear, will be proportionate to the distance of the point of attachment from the bolt upon which the beam is pivoted. To reduce the resistance, it would be only necessary, in a given case, as any intelligent person could see, to reduce that distance; and what the appellees did was to attach the spring to the bolt itself, lengthened out in order to prevent loss of power, and not, in the manner of Brown's patent, to a projection on the pipe box provided for the purpose. Once springs had been introduced into cultivators for the purpose of aiding the operator to move the plows vertically, if it can be said to have ever been a question, outside of the minds of solicitors and expert theorists, how the resistance of the springs to lateral movements could be avoided, it was a problem whose solution was always too manifestly easy to be called invention or discovery. It was a matter of the simplest reasoning and observation. It was admitted at the argument that, so long as the process consisted in diminishing the resistance by moving the place of the spring's attachment on the plow beam towards the bolt, it involved no invention; but it is claimed that Brown made an original discovery when he perceived that by passing the bolt, and making the attachment in front, the resistance was entirely eliminated. The fact is evident, but no more so to men of ordinary intelligence now than it was before Brown applied for his patent; and consequently there could be nothing patentable to Brown in the discovery, if his intelligence is to be discredited by the assumption that the perception then first dawned upon him. Practically, the suppQsed problem would be solved just as well by connecting the spring with the beam at a point immediately behind the pivot bolt, within a distance of three, six, or perhaps even twelve, inches. In his patent of 1872, Brown had shown another mode of accomplishing the result by pivoting th-e fixed end of the spring like the pivQted part of a swinging bracket.
,Ifth-e {,claim. in: i question ean·· 'bei :regarded 'as freontaining 'invenit must be .limited to the .particular formS: of- construction tion of ,the pipe box described; and, that done,;infringement;; is not proved. The decree below, in each case,should be affirmed, and it is so ordered. STffiRAT etaI. v. EXCELSIOR MANuF'G CO. (Circuit Court of Appeals, Eighth Circuit. No. 341. PA'fIill;NT$.....LuUTNfION 011' ,CLAIMS-WATER-HEATING DEVICE FOR STOVES.
May 7, 1894.)
Sj;i.rrat patent, N'o, 357,874, tor a water-heating device, for stoves, in +ie'Y' <>t the prior state of the art t;he modification.ot the .claims in the patent o:tll.ce, must be strictly !fmited to the' construction described, _ which includes, as an essentlll1 elemllnt of the combination claimed. a ll.olloW', long center plate or a top plate; of a stove havjng a.chamber therewhich the. wl:l,ter heated is cause9, 'toPassi and bence Goes not cover a device containing a$()lid, long center plate witha water box bolted thereto. 60 Fed. 607, a:tttrtned. . .. '
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j
I
Appeal from the 0ircuit Court of the United States for the Eastern District of Missouri. for appellants. Paul Bakewell, for appellee. Before CALDWELL and SANBORN, Circuit Judges. SANBORN, Circuit Judge, deUvered the opinion of the court. This was a suit for the infringement of letters patent No. 357,874, for a. water-heating device for stoves and ranges,' issued to the appellants .Bobert J. Stirrat and Robert G. Stirrat, February 15, 1887. The defenlre was that there was no patentable novelty in complainants' device, and that the the Excelsior Manufacturing Company, a corporation, did not infringe. The circuit court dismissed the bill on the latter ground. 60 Fed. 607. The device of the. appellants consists of the combination of the hollow, ll>ng center plate of a stove or range,. with a supply pipe, which Jel,lds from the lower part of a wateI1 tank, through the wall of a stove or range, thence in front of, the fire back, and is then inserted in .the under side of the long center plate, near the end furthest. ·from the source of supply; and an edu'ction pipe which leads to the hot-water tank and 'ls,screwedirito the long center plate. at the end opposite to that at'which the.supply pipe is inserted. The device of:the appellee consists of the combination, with the sQMd,long center plate of 8;stove"of It'waterbox, slotted lugs· and; bolt'. 01' i screws, by which 'it may' be fastened to the long center, i'and,! a:J8l1pplyrpipeand,an'oouetion pipe arranged and insertedin the 'water boxinisubstantiaUy the same 'way ihwhich the appellants arrange and hisert the like pipes in their hollow; long i