American Grass Twine Co. v. Choate

159 F. 429 | 7th Cir. | 1907

BAKER, Circuit Judge

(after stating the facts as above). No one reference of prior art to of the novelty of the claims of the first patent. Whether invention was involved is a question we find unnecessary to determine on this appeal. In 'view of the prior automatic feeders, the inventive genius of Lowry was displayed, if at all, in modifying, combining, and adapting old elements to work successfully upon the materials used in making the twine described in cause No. 1,332, herewith decided. “There is room for such an adapter to have only a specific patent for his particular form of adaptation, and he is not privileged to exclude others from gleaning in the same general field.” Loew Supply & Mfg. Co. v. Fred Miller Brewing Co., 138 Fed. 886, 71 C. C. A. 266. Appellees’ automatic feeder is made under patent No. 785,070, issued on March 14, 1905, to Monahan and Kieren, assignors. Considering Lowry and the patentees of appellees’ feeder “as alike having improved on the prior art, the question is whether the specific improvements of the one actionably invaded the domain of the other. The presumption from the grant of the letters patent is that there was a substantial difference between the inventions.” Kokomo Fence Machine Co. v. Kitselman, 189 U. S. 8, 23 Sup. Ct. 521, 47 L. Ed. 689. This presumption, far from being overcome, is rather confirmed by a comparison of appellees’ feeder with the claims of appellant’s patent. The vital element of both of Lowry’s claims is the revolviiig wheel provided at its periphery with jaws adapted to grasp a portion of the contents of the hopper and carry it to the receiving trough. Lowry states in his patent, that other forms of jaws or nippers than those he then described might readily be employed; hut the whole idea and the only idea of conveying stalks of grass to the twisting mechanism was that they should be picked up by the biting action of jaws or nippers and carried along thus to the desired point and then dropped by the opening of the jaws. In appellees’ feeder the stalks are carried forward by friction between moving surfaces below and above — below, a belt and a rubber roller across the bottom of the feedway; above, thin roller segments with grooved peripheries adapted to press against a few stalks at a time. Only the general results are the same; the ideas of means differ radically.

In the thirteenth and fourteenth claims of the second patent a material and indispensable element is “a carrier provided with gripping-jaws.” As already found by us, appellees’ machine is not provided with such a carrier or with its equivalent within Lowry’s expressed idea of means.

In the forty-fourth and forty-fifth claims two essential elements are “a twisting mechanism” and “a wrapping mechanism.” This machine produces the Lowry twine in which the stalks are first twisted together and then wrapped. Appellees’ machine has no separate and independent twisting mechanism; and it is claimed that the product of their machine is without twist. Our examination leads us to conclude that the only twist is such as unavoidably would come from wrapping spirally the long stalks of marsh grass that are brought to the wrapping mechanism in straight and parallel relation to each other. The element of “a wrapping mechanism” in appellees’ machine cannot also be the element of “a twisting mechanism” in the sense of appellant’s claims merely because the wrapping mechanism inevitably tends to give a slight twist to the pliable strands. See Ajax Forge Co. v. Pettibone, 135 Fed. 748, 753, 60 C. C. A. 516. Appellees are therefore not guilty of infringing the claims.

The decree is affirmed.