delivered-the opinion of the court.
Dennis, the Complainant below, obtained an injunction and recovered damages against Eddy and others for an infringement of'his. letters-patent for an improvement in “shovel plows.” The original letters were issued on the twenty-third day of February, 1858,- and the patent was reissued on the fourth day of August, 1868.
The claim made under the. reissued patent is in the words following: —
“ Having thus described my invention, I wish it distinctly under-, stood that I dó not claim broadly the idea of passing a portion of the earth over the mould-board into the furrow behind, as I am aware that this has before been done. Neither do I claim applying a movable mould-board to ohé of the outer edges of the share, as described in,an application of J. Drummond, rejected Oct. 25, 1844. Neither do I'claim the use of projecting blades at the outer ends- *565 of the share, as described in. the patent 'of B. Langdon, granted June 22, 1842, and others; but,
“'Having thus described my invention, what I claim as new and desire to secure by letters-patent is, 1st, the inclined shovel mouldboard B, formed and mounted substantially as described, and constructed highest at its outer edges, so as to form on each side of the standard A a recess c, through which, recesses a portion of the earth may, after rising upon the mould-board, descend into the furrow in the rear of the plow.
“2d, The combination with.the beam A and mould-board B of the adjustable wheel F, arranged and operating substantiallj as and for the purposes specified.”
The original patent claimed only what. is here described as the second claim. The point of the reissue is in the claim as first above set forth.
The use of the shovel-plow .is in cultivating the soil between the rows of growing crops, after they are somewhat advanced in their growth, to stir up and loosen the soil, and to free it from weeds. This plow is distinct in 'many parts of its construction, as well as in its intended effect, from the plow used in breaking up the soil; thát is, from the plow in common use.
In first considering the claim contained in both the original' and reissued patents, and in the latter described as the second claim, we remark, that we concur entirely with the learned judge who tried this case at the circuit, in his view of it.
The. adjustable wheel is the important feature of this claim. The bar or beam and the mould-board suggest nothing in the way of novelty, invention, or of peculiarity. The use of the •base of a plow as a fulcrum, by means of which the plowman can raise or lower the point of the plow, or turn it. in different directions, has long been in use, and on nearly every kind of plow. Peter Dutton’s stay-iron, rejected, in 1865, affords an-illustration.
That an adjustable wheel was deemed by the inventor to be quite a different thing from the simple bar or shoe in ordinary use, is manifest from the careful description of its advantages in the original patent. It is described in .these words: —
“ F is an adjustable metallic, roller, which is attached to the bar A, just back of the nnv’d-board B; The axis of the roller F is *566 fitted or has its. bearings in arms//, which project obliquely from a plate' g, said plate being slotted longitudinally, so that .bolts h h, which secure the mould-board to the bar, may pass through said slots, the bolts h having each. a nut i on them, by .screwing up which the plate, and consequently the roller, may be secured higher or lower, as may be desired.”
It is also set forth that- the point or share of' the plow maybe made- to penetrate the soil at a greater or less, depth, by adjusting' the roller and draught-chain; the roller serving as.a gauge or guide, and the .'draught-chain being adjusted at the end of the beams, so that the draught may aid the roller; the point or share may be made to 'penetrate the' soil, or otherwise. ; . ,
The plows proved t.o have been, manufactured by Eddy & Coi, the defendants, have none of them this element of an adjustable wheel of roller.. Their plow.rests upon a plain bar or shoe of iron.. It his no mechanical contrivance for fixing the angle at which the point shall penetrate the earth. This is done by the strength of the plowman, who uses the.shoe as a fulcrum for that purpose.
No argument--is-needed to show, that there has been no violation by-the defendants-of the; Dennis- patent in this particular.
In considering the effect of the Remaining'claim of the reissue, we are greatly aided by the clear and explicit statement of the patentee of what he does "not claim as his invention.
..There are three; mechanical advantages in his plow, which he says he does not clqim to have invented: — ,
1st, The idea of passing .-the earth over the mould-board into the furrow behind- ' This result is really the fundamental advantage in both the plaintiff’s and defendants’ plows. In other words, the principal benefit to be derived from either is found in the fact that the. earth, -loosened and broken, will be de-" posited in. .the,furrow behind the -plow, the movable mouldboards and the projecting blades at tbe outer ends of the share-.both contributing to-this result. .-But the patentee says .'that he is aware that this had been done before his invention, and -'he makes no claim to an invention or discovery in this 'respect.
*567 • 2d, The patentee does not claim the application of a.movable-mould-board to One of the outer edges of the share. -This, he says, was described in' an application* .previously made (in 1844) by Drummond.
8d, The patentee does not claim the use of projecting blades' at the. outer ends of the share. This had been described in a patent- granted to Langdon in ,1-842.
To these disclaimer's we may add that he does not make a claim..-for invention in using the shovel-of -this plow in an inclined form. He'does not even give the angle of inclination at which it shall be used, whether it shall be 75°, like the old plows, or 45°, like this one. Ever since plows have been used, — and there is no secular' history of man in which the plow and the hoe are not recorded, — we may safely believe that there has been an inclination, sometimes greater and sometimes less, in the- shovel and mould-board. A perfectly upright shovel ■would be nearly immovable, except in a light soil and to a very slight .depth, while one perfectly flat would be of little value.
Remembering these four, items as not .being parts of the plaintiff’s invention,-we are prepared to consider what he claims to have invented and desires to secure by a patent. In his own words, it is “the inclined shovel mould-board B, formed and mounted substantially, as described,'and constructed highest at its outer edges, so as to form on each side' of the standard A a recess e, through which recesses a portion of the earth may, after rising upon- the mould-board, "descend into the furrow in the -rear of the plow.”
An inclined shovel mould-board, simply and albne, is not spoken of as an -invention. It had long been in-use in other plows. What the claim means to appropriate is a shovel' “ formed and mounted and constructed as described.”. There is nothing in the form of mounting — that is, placingit upon the beam of the plow — that is peculiar. It is the construction that gives it effect How is it .formed, and mounted and constructed ? . He says, in. the general description,'.that it is a metallic bar so-formed or curved that the front will form thé beam of the implement, and the back an inclined portion to which the mould is attached, while the upperbdge of the-mould-board is só scol*. *568 loped out as to form-a recess over which the-earth may pass, to which is attached a metallic adjustable roller, serving as a gauge or guide .to regulate the depth .that the point shall penetrate the earth.
The defendants insisted that, like the other, this' claim also describes a' combination, of- which the adjustable roller is an essential element, and that there can be no infringement unless the roller is used. There is much force in this argument.
There is, also, another view of this part of the case. Eliminate from this description, first, the idea of an inclined shovel or moujd-board, and, second, the idea of passing the earth over the plow into the furrow, both of which are outside of the plaintiff's invention, and nothing remains, except a recess formed by a. scolloped edge on. which the earth will pass, and an adjustable roller in connection with the beam of the plow.
Ás has been before said, the. defendants have never used the adjustable roller. The infringement, then, if any, consists in the use of .a recess formed by a scolloped edge over which the earth will pass. The learned judge at the circuit held that the patent was good for this piaim, and that the defendants had infringed it. We have reached a different conclusion.
We think the use of. the expression, “scolloped out so as to form a recess,” was not intended to say that the particular form in which the recess was made should be that of a curve. A scollop may, indeed, imply-the idea of a curve, but in a vague and indefinite manner. It is as if it had been said, -it-“ shall be so cut out as to form a recess.” The formation of the recess, was the idea in the mind of the draughtsman, with no reference to any question of curved lines or right lines. That this was the fact, is made evident-by the absence of the word “scolloped ” in the claim itself, although used in the general description; If that form had been deemed material, it would have been inserted where the patentee sets out with precision • what it is that he claims. In the claim, it is described by the words “ constructed highest at its outer edges, so as to form on each side .a recess ” through which the earth may pass. A recess made by the outer edges being higher than the inner parts was the effect intended to be provided for, and that only. If it had *569 been intended to describe a recess made by a curve, to' tbe exclusion of a recess made in any other manner, it was very easy to say so; but the patentee did not so say,- and we think he did not so mean.
If the patentee here -had been the inventor of the mouldboard with a recess for the purpose of passing the earth, through it into the furrow behind, and had described his invention in the words used in his reissued patent, would it not have included as well a structure made by right lines as one made by curved lines ? In
Winans
v. Denmead, cited by the respondent’s counsel, it is said, “ Although a particular geometrical form is best for a certain purpose, yet other forms, giving substantially the same result, are infringements. - The result need not be the same in degree if it be the same in kind.”
If- this be so, it can scarcely be denied that the words used in this reissued patent include both forms of a recess, and that ,it thereby claimed what was previously known and in use; to wit, a structure for the passage of the earth into the furrow behind,
No testimony is given that the sod will be more thoroughly broken,, the earth- better pulverized, or the furrows better filled by the passage of the earth through a recess made by curved lines, than, by its passage .through, a recess of the same depth made by straight lines. The plaintiffs, although witnesses, gave no testimony to that'effect. - Of our own khowledge,'we do not know that it is so. As a matter- of law,. certainly we are not able to-decide that the right-lined recess is any less efficacious for the purpose desired than a'curved-line, recess. ,
There is, indeed., testimony to. show that the earth and sod passing over the low mOuld-boards of the exhibit M. were left in a worse condition than when passed over the recess of the Dennis plow.
In speaking on this subject, Henry Holmes.says that if left the.furrow behind hard and flat, as if a log had been drawn •between the rows. The witness Broughton .speaks of it as throwing á double furrow outward, and as leaving the furrow bare behind. .
But neither of these witnesses attribute'the excellences of the 'one plow ór the defects of the" other to the existence of, curved or straight- lines in forming the recess.
*570 To recapitulate:
For these reasons, the decree of the court below must be reversed.
As Dennis has no cause of action; the question of the amount' of damages cannot arise.
Decree reversed, and cause remanded with instructions to dis miss the hill with costs.