treme opposite end of the larger part of the tightly into the molding, by the action of the sheath there was a slot across the sheath, con- follower and its connected parts, the molding taining a key or stop to prevent the sliding of being, at the same time, prevented from bending the molding. The follower was attached to a by the walls of the larger part of the groove. Q. slide and lever, so that when a molding was 8. Can you produce a drawing illustrating the laid in the larger part of the sheath and the machine above described and its operation? comb in the smaller part, the comb being pre- Ans. I here produce a drawing which illus vented from bending by the walls of the sheath, trates said machine. In this drawing, figure 1, could be forced into the molding by the action A represents the main body of the machine. of the slide and lever upon the follower, the In the part A is the groove C and its smaller molding being prevented from bending by the extension D, in which are placed the molding walls of the part of the sheath within which it and the comb, as described in my previous anwas placed. This machine was in use more swer. O represents the slot in which is placed than three years before the date of the com- the key, marked figure 2. E, figure 1, repreplainant's invention. That this was a compar- sents the follower B, the slide of which the atively small machine and used only for apply- follower forms a part; L, K, M, and H the ing moldings to combs, is not material. Wood- lever and connecting parts by which E and B bury Planing Machine Co. v. Keith, 101 U. S. is operated. Figure 3 shows an end view of 490 [25: 945]. Nor is it material that the the slide and follower. Q. 9. Into which of groove or gutter was so open in cross section the grooves do you place the metallic molding? that the molding could be dropped into it. Ans. Into the groove C. Q. 10. And into Fig. 6 of the drawings accompanying the let- which the comb? Ans. Into the groove D. ters patent issued to complainant shows a Q. 11. In use, the key or stop, figure 2, is sheath of like shape, and is referred to in the placed in the slot O to prevent the metallic specifications as a modified form of the sheath molding sliding, is it not? Ans. It is. Q. 12. patented, and the claim is so broad as to cover State whether the groove C in the sheath A efany sheath, of any material, shape, or size, for fectually prevents the metallic molding from applying moldings to any article. There is bending as it is forced over the back of the nothing more in the sheath patented to the comb. Ans. It does. Q. 13. State how long complainant than an adaptation of the sheath you have used the above described machine used at Binghamton to the application of mold- for putting metallic moldings on combs in the ings to carriage dash boards-an adaptation manner described. Ans. Since September, which would have occurred to a skilled me- 1867. Q. 14. Can you fix the date by any chanic without the exercise of the inventive positive evidence besides your memory? Ans. faculty. Had the complainant's invention | I can; I have referred to the time book of the been first in time and patented, the Bingham- men who made the machines, and find the maton sheath would have been an infringement; chine to have been finished at the date named, and, conversely, had the Binghamton sheath been patented, the complainant's would have been an infringement. That which infringes, if later, would anticipate, if earlier." We concur in these views.

The affirmative evidence on the part of the defendant, in regard to the Noyes apparatus, consists of the testimony of Noyes and Yingling, their testimony having been taken in August, 1882. Noyes testified that he had been engaged in making combs, at Binghamton, Broome County, New York, since 1860, and had, since 1864, made combs with metallic moldings for stiffening the backs. He produced one of such combs, marked A, and one of such moldings, marked B. He further testified as follows: "Q. 6. State whether or not you have ever used any machinery for putting these moldings on combs. Ans. I have. Q. 7. Can you describe any of the machines used by you for putting moldings on combs? Ans. Yes. I have one machine in which the molding is held in a groove, which fits it closely, and the same groove has an extension enough smaller to fit the comb closely; and in this extension there slides a follower, which is fitted to abut against the end of the comb. At the extreme opposite end of the larger part of the groove there is a slot across the groove, containing a key or stop to prevent the molding sliding through the groove. The follower before mentioned is attached to a suitable slide and lever, so that when a molding is laid in the larger part of the groove, and the comb in the smaller part, the comb, being prevented from bending by the walls of the the groove, can be forced

and remember that it was put into immediate use. Q. 15. Has it been used ever since? Ans. It has been in continued use ever since without any alteration. Q. 16. Have you ever made any effort to keep its use a secret, or has it always been open to the inspection of any person who might come into your shop? Ans. I have made no effort to keep it secret, but the shophas always been open to visitors, and anyone could see the machine who cared to look at it." The drawing so produced, marked C, shows a machine substantially like that of the plaintiff.

Yingling testified that he was, at the time of testifying, in the employ of Noyes, and, since 1868, or for about fourteen years, had used a machine like that shown by the drawing C, above referred to, for putting metallic moldings. upon combs.

Noyes had stated, on cross examination, in answer to a question as to who made the machine he had described as made in 1867, that William Knopp and his son were in his (Noyes') employ as machinists at that time, and worked some on it; that his time book, kept at that time, which he had consulted, contained a record of the fact that Knopp and his son so worked on the machine; and that the machine was built during the first week in September, 1867. In rebuttal, the plaintiff examined as witnesses William Knopp and three persons named Newman, Coyle and McAuley.

Knopp testified that he was employed in Noyes' comb factory from 1865 to 1869, and was familar with the kind of machinery manufactured by them during that time, for use in their comb factory. He then proceeded: "Q.

The case falls within the principle applied in Pennsylvania Railroad Company v. Locomotive Truck Company, 110 U. S. 490 [28: 222], and cases there cited.

As to the third claim, it is not infringed, because, in the defendant's apparatus, no washers are used for adjustment.

The decree of the Circuit Court is affirmed.

GEORGE M. PETERS, Appt.,

0.

JULIUS A. HANSON ET AL., Partners Under the Firm Name of HANSON, Van Camp & Co.

(Sce S. C. Reporter's ed. 541–557.)

Letters patent-want of invention-old devices

5. In September, 1867, or at any other time, | comb is forced into the molding by the action did you make machinery for putting metallic of the follower. But its action is substantially backs on combs? A. I did. Q. 6. Without the same as that of the stop in the plaintiff's going into detail as to the kind you did make, patent, which prevents the molding from slipI will ask you whether, in September, 1867, ping through the groove. you made, or helped to make, a machine for putting moldings on the backs of combs, where the molding is held in a groove which fits it closely, and the same groove has an extension enough smaller to fit the comb closely, and in this extension there slides a 'follower,' which is fitted to abut against the end of the comb. At the extreme opposite end of the groove there is a slot across the groove, containing a key or stop, to prevent the molding from sliding through the groove. The follower is attached to a suitable slide or lever, so that, when a molding is laid in the larger part of the groove, and the comb in the smaller part, the comb is prevented from bending by the walls of the groove, and can be forced tightly into the molding. by the action of the follower and of the connecting parts? A. I do not remember that I made anything of that kind. Q. 7. Did you at any other time make such a machine? A. I don't remember that I did. Q. 8. Please examine the comb I now hand you, and state whether Noyes, Bros. & Co., at that time when you worked for them, and since, manufactured a comb with metallic back similar to this one, and, if so, state how said metallic back was put on the comb? (Comb marked Exhibit A shown witness and offered in evidence by solicitor for complainant.) A. They manufactured a comb in general appearance similar. The metallic back was put on and fastened to the comb by compression. The back was compressed in a vice to make it fit in a groove in the comb tightly. The molding was placed on the comb by hand, and then put in a vice, and the molding pressed up tightly against the comb. Q. 9. Do you remember working on or making machinery for compressing the molding on the comb, as above described? A. I do. Q. 10. Is the mode above described the only way Noyes, Bros. & Co. put metallic moldings on that kind of a comb? A. It is. Q. 11. You was familiar at that time with the mode employed by them for putting moldings on combs, was you? A. I was.

This testimony of Knopp is very inconclusive. He merely testifies, thirteen years after he had left Noyes' establishment, that he does not remember that he made, fifteen years before the time when he was testifying, a machine like that described in question 6 put to him. The drawing produced by Noyes was not shown to Knopp.

1. Claims 1, 2 and 3, of patent No. 213, 529,granted to George M. Peters for an improvement in vehicle dashes, are merely applications of old devices to new uses, not involving invention.

2. There was no invention in providing the bearing mentioned in the fourth claim of that patent, to strengthen the frame in that part by which the dash is to be connected to the foot of the vehicle. 3. The improvements covered by claims 1, 2, 3 and 11 of reissue No. 9891 of letters patent to the plaintamount only to applications of old devices to new for improvements in vehicle dash frames uses, not involving invention. [No.66.]

itf

Argued Jan. 25, 28, 1889. Decided March 5, 1889.

APPEAL from a decree of the Circuit Court of the United States for the District of Indiana, dismissing a suit for the infringement of two letters patent, granted to George M. Peters, the plaintiff, namely: letters patent No. 213,529, granted March 25, 1879, for improvement in vehicle dashes, and reissued letters patent No. 9891, for improvement in vehicle-dash frames. Affirmed.

The facts are stated in the opinion.

Messrs. Wm. Hubbell Fisher and Benjamin Butterworth for appellant.

Mr. Arthur Stem for appellees.

Mr. Justice Blatchford delivered the opinion of the court:

This is a suit in equity, brought by George M. Peters, in the Circuit Court of the United States for the District of Indiana, against Julius A. Hanson and Cortland C. Van Camp, for the alleged infringement of two letters patent granted to George M. Peters, the plaint

March 25, 1879, for an improvement in vehicle dashes, on an application filed June 19, 1875, and reissued letters patent No. 9891, for improvements in vehicle dash frames, granted October 11, 1881, on the surrender of original letters patent No. 224,792, granted February 24, 1880, on an application filed May 5, 1879, the reissue having been applied for June 15, 1881.

The testimony of Newman, Coyle and McAuley amounts to nothing. Although they were employed in the comb factory of Noyes at the time they gave their testimony, in De-iff, namely: letters patent No. 213,529, granted cember, 1882, and had been employed there, Newman from 1862, Coyle for fourteen or fifteen years, and McAuley for about thirty years, neither of them was shown the comb A, nor the molding B, nor the drawing C, above mentioned, nor was a distinct question put to either of them as to the use of a machine like that described in question 6 put to the witness Knopp. The only difference between Noyes' device and that of the plaintiff is, that in Noyes' the stop holds the molding stationary while the

The answer sets up as to both patents want of novelty and patentability, noninfringement, and the invalidity of the reissue, because it has

been expanded beyond the invention discloted in the original patent, and contains new matter not found in that patent, and is for a differens invention.

This bearing portion N may be secured permanently or detachably to the frame bars. Thus in Figs. 1 and 2 it is provided with sockets for the reception of studs at the ends of the There was a replication to the answer, proofs bars. In any case it affords a strong and rigid were taken, and the circuit court dismissed the connection between the foot and the frame, so bill. The plaintiff has appealed from the de- that the latter cannot be bent over under anycree. We are not furnished with any opinion thing less than destructive pressure. This is given by the circuit court stating the ground especially the case when both uprights, F and for its action, but it said, in the brief for the ap-G, are secured to the bearing piece N, whether pellant, that the ground was that the inventions were not patentable.

So much of the specification of No. 213,529, as is material, and the drawings referred to in it, are as follows:

"My invention relates, . . . secondly, to the attachment of the dash to the vehicle; and this part of my invention renders the dash capable of attachment to vehicles of different widths, so that it can be sold as an article of manufacture, for application to the vehicle by the purchaser. These features of my invention render the construction easy, expeditious, and economical. Another feature of my invention consists in such a novel construction of the dash as that there shall be at the part of the frame thereof to which the laterally adjustable foot is to be attached a proper bearing surface for the support and bracing of the dash.

"In the accompanying drawings, which form a part of this specification, Figure 1 is a perspective view of sufficient of a vehicle to illustrate my invention; Fig. 2, a sectional detached view; Figs. 3, 4, 5, 6, 8, detached views illustrating modifications; and Fig. 7, a detached perspective view.

"One mode of making the dash frame is shown in the drawings, in which G F are parallel uprights at each end, C D E parallel cross rods, and M L short continuations of the rods GF In order to connect the frame to the vehicle, and further to permit a frame to be applied to vehicles of different sizes, I construct the frame and the foot H so that, by a lateral adjustment in relation to each other, the desired connection to bodies of different widths may be effected. The frames may be varied in construction to effect this result. Thus, in Figs. 1 and 2 the frame has a wide bearing piece, N, of any desired length, with a slot to receive the fastenings of the foot or attachment H, by which the dash and the body of the vehicle are connected adjustably, so that, within the limits of the adjustment, the foot secured to the dash may find its bearings on bodies of various widths. The foot may be of any desired shape, being shown with two branches, bd, one bolted or otherwise secured to the dash and the other to the body I of the vehicle. By the above described means the dashes may be furnished to the trade as independent articles of manufacture, as the foot may be fitted to vehicles in the process of construction or afterward, and the dash secured without altering or moving it. For the like reason the feet adapted to the vehicles and dashes may be sold separately.

within or without the frame proper; but when within the frame, and extending up between the uprights, it stiffens and braces the latter.

"The adjustment of the dash and foot is not necessarily limited to the mode described. For instance, it may be effected by means of a series of holes, affording a means of adjusting the foot at different points. When the foot is not required, the dash may be connected directly to the body with like advantage, as the points of connection may be varied to suit bodies of different widths.

"The feature of lateral adjustability set forth therein is applicable to dashes and feet, or equivalent laterally adjustable attachments, other than those particularly herein described."

The bearing N for the attachment or foot may be within the frame, as shown in Figs. 1, 2, 3, 4 and 8, or it may be in an extension out-ly side of the frame, the result being the same i. e., the frame being adapted to be secured without change to bodies of different widths.

openings, whereby attachments may be made at different points, substantially as and for the purposes set forth.

"3. A dash provided with bearings having slots or openings, substantially as and for the purpose specified.

"4. A dash frame provided with bearings, arranged to strengthen the frame in those parts whereby the dash is to be connected to the laterally adjustable feet or to the vehicle."

So much of the specification of reissue No. 9891 as is material, and the drawings referred to in it, are as follows:

rate bearings for said foot or body), and possess great advantages over the customary convex or oval rails, the central portion of which, being thick, renders them hard to punch, and the edges afford no flat surface for said foot or body to press against. The rail, therefore, when more or less flat on one or both sides, becomes a modification of the forms of rails shown herein and possesses some of their advantages.

"Irrespective of the comparative advantages derived from the bearings being flat over being otherwise shaped, the following, among other advantages, obtains, viz.: that the web allows the rail or bar to be readily and quickly perforated, the thick parts, however shaped, connecting said web serving as supports or bearings for the attachment of the foot or other portion of the vehicle to which the dash is con

"One object of my invention is a novel construction of the dash frame whereby the latter is rendered light and strong, can be manufactured with little expense; and whereby the various portions of the frame are cheaply, readily and firmly secured together; and also whereby the dash is cheaply, quickly, and firmly connected. nected to a permanent or detachable portion of the vehicle. Another object of my invention is a formation of a dash foot for connecting a dash to a vehicle whereby the foot is at once strong and light and can be cheaply manufactured.

"Referring to the drawings forming part of this specification, figure 1, A, B, C and D represent a dash frame constructed in accordance with my improvements, a section through the channeled lower rail of dash, and a sectional and perspective view of my special form of bar. Fig. 2, E and F are a perspective and sectional view of a modification of the mode of attaching the bar to the lower rail of the dash where said lower rail is channeled only on one side, and G is a perspective view showing a portion of the lower rail channeled only on one side and a channeled foot of my invention attached thereto, showing manner of attaching the foot to the lower rail by a T headed bolt. Fig. 3, H, I, Fig. 4, J, K, and Fig. 5, L, M, are sectional views, showing different modes of attaching the foot to the lower rail of the dash. Fig. 6 is a perspective view showing how the extension é of the upper bar may be riveted to the thin web or channeled portion of the lower rail. H', Fig. 1, represents the lower rail of a dash frame, channeled as shown at B. This rail is provided at either end with the slot a or the holes á for attaching the feet to the dash frame. The lower ends of the upright bars of the frame are split and each half provided with a T head. (Shown at D, Fig. 1.) These T heads are made of the same width as the channel in the lower rail into which they fit. The two halves of this split end are separated from each other to admit the lower rail between them. The upper ends of the upright bar are provided with notches d, for the reception of the upper rail of the dash frame.

"By constructing dash frames in the manner described much of the expense incurred in the ordinary mode of manufacture is saved. The lower rail is made broad and flat, so that the slot a or holes á can be made therein and leave a strong bearing for the attachment of the feet.

The wide vertical flat faces of the lower rail afford a desirable bearing for the dash foot or vehicle body (as the rail can be readily perforated for bolts or rivets, and the thick edges left above and below the perforations are first

. .

"G, Fig. 2, is a perspective view of the under side of my channeled or concave foot... The foot may be channeled or concaved on the opposite side to that shown and described herein, or on both sides, these forms of construction being both obvious equivalents of the one shown and described. The depth and the length of the channel or concavity in the dash rail or foot may be varied to suit the requirements of the manufacturer. Another advantage of that portion of my invention which relates to channeling or recessing the foot is that the same may be readily cast of malleable iron, the channeling obviating the injurious effects arising from the presence of shrunken corners in thick malleable iron castings. The channeling or recessing of the foot enables the latter to be made light and thin and to be better annealed."

There are thirteen claims in the reissue, but only claims 1, 2, 3 and 11 are alleged to have

been infringed. Those claims are as follows: | patent states that "the adjustment of the dash "1. A vehicle dash whose lower bar is pro- and foot is not necessarily limited to the mode vided exteriorly with a channel or recess, the described," but that "it may be effected by metal on either side of the channel or recess means of a series of holes, affording a means of affording a bearing for the dash foot or other adjusting the foot at different points." portion of the vehicle to which the dash is connected, for the purposes specified.