12 F. Cas. 715 | U.S. Circuit Court for the District of Northern New York | 1878
This suit is brought for the infringement of reissued letters patent [No. 4,793] granted to Simeon Howes, Gardner E. Throop, Alpheus Babcock, Norman Babcock and Carlos 'Ewell, March 5th, 1872, for an “improvement in grain separators and scourers,” and extended for 7 years from March 16th, 1872, the original patent [No. 19,637] having been granted to Howes and Throop March 16th, 1858. The specification of the reissue says: “The improvements relate to that class of combined machines which both scour the grain and also separate the heavy grain from the light grain and screenings, and the cheat and light grain from the dust, chaff and other refuse. The object of the invention is to effect a more perfect cleaning and separation of smut and other refuse from the full grains and from the cheat and lighter grains than has heretofore been accomplished, and at the same time render the machine more compact, simple and cheap in construction, and enable it to be more conveniently operated and regulated than other machines. The invention consists, first, in the combination with a suction fan, a perforated inclosing shell or cylinder, and an outer tight- casing, of a draught passage leading directly from the inclosed space outside of the scouring shell to the fan case, and provided with auxiliary air inlets, whereby the particles of smut and other impurities, as- they are detached from the grain and drawn or forced through the perforations of the cylinder, will, be removed and conducted directly to the fan; second, in the combination with a grain scourer and suction fan, of two separating wind trunks, arranged side by side, one receiving the grain before it enters the scourer, and effecting what is termed a preliminary separation, and the other receiving the grain as it is discharged from the scourer, and effecting what is termed a subsequent separation, each wind trunk effecting three separations in a similar manner; first, of the full or plump grain; second, of cheat and light or shrunken grain; and third, of the smut, dust, chaff and other refuse, the prodücts of the second separation from both wind trunks being discharged near each other on the same side of the machine, whilst the products of the third separation (the refuse material) are conducted from both wind trunks into the eye of the fan.” The drawings contain four figures. Figure 1 is a vertical section through the preliminary separating wind trunk. Figure 2 is a vertical section through the subsequent separating wind trunk. Figure 3 is a vertical cross-section, made at right angles to the sections in figures 1 and 2. Figure 4 is a horizontal section. The specification says: “Like letters of reference designate like parts in each of the figures. A is the frame of the combined machine; B, the perforated smutting or scouring shell or cylinder; and C, the surrounding case, leaving a space, D, between the two, into which air is admitted through narrow auxiliary openings, c, at the bottom. E is the central vertical shaft, to which is secured, within the scouring shell or cylinder, a beater cylinder, F, provided with radial wings or beaters, f. G are the fan blades, keyed to the upper end of the shaft; and H, the fan case, with an opening or eye, h, in
The machine of the defendant has a suction fan arranged above the scourer; a scouring mechanism consisting of revolving wings or beaters attached to the same shaft to which the fan is attached; a perforated shell inclosing the revolving beaters; an outer tight casing surrounding the perforated shell, but so as to leave a space or chamber between sueh outer casing and such shell; a draught passage connecting sueh chamber directly with the fan case, in such manner that the smut and other adherent matter which pass through the perforations in such shell into such chamber, are conducted to the fan without commingling with, or again coming in contact with, the scoured grain; and auxiliary air inlets, in the shape of holes in the upper end of the scouring shell, instead of holes through the outer casing, as in the plaintiffs’ machine. In the plaintiffs’ machine, the refuse, after passing through the perforations, moves upward through the draught passage to reach the fan. and does not again come in contact with the grain, and the greater portion of the air which operates to make the necessary draught through the space outside of the scourer is that which comes through the auxiliary air inlets in the bottom of the outer tight case, and which inlets are at the end opposite the outlet. In
In regard to the second claim of the plaintiffs’ patent, the defendant’s machine has two wind trunks arranged side by side, each provided with a separate valve or regulator, and each effecting the three separations set forth In the plaintiffs’ specification, namely, first, •of full grain, second, of cheat and light grain, and, third, of refuse, the refuse being conducted into the eye of a suction fan, which is arranged above and on the same shaft with a scourer, both wind trunks being connected with the fan, and the scourer having a perforated case which operates to separate the greater portion of the refuse as it is detached from the grain, and the arrangement •of the wind trunks, in the combined scourer and grain separator, is substantially the same, and operates in substantially the same manner, and accomplishes substantially the same results, as the arrangement covered by the second claim of the plaintiffs’ patent. The difference in shape of the chess hopper in the defendant’s wind trunk, the projecting forward and curving downward into the chess hopper, of the bottom board of the horizontal part of the wind trunk, in the defendant’s machine, the regulating valve in the wind trunk, in the defendant’s machine, and other minor modifications which are alleged to effect a more perfect separation in the defendant’s machine, if improvements, do not relieve the arrangement from the charge of infringement
Howes and Throop, on the 27th of January, 1855, filed in the patent office an application for a patent for an “improved separator-and smut machine.” The application was sworn to by Howes on the 2d of January, 1855, and by Throop on the 22d of January, 1855. The model was filed on the 28th of February, 1855. The drawings accompanying this application were, in all substantial and material particulars, like the drawings of the reissued patent sued on, except that there was no drawing, figure 4, of a horizontal section. The specification in such application states the invention as follows: “This invention relates to a new and improved separator and smut machine, and consists, 1st, in a -.peculiar arrangement of the blast spouts, as will be hereafter fully shown, whereby the grain is subjected to two blasts, one before entering the scourer or smut mill, and the other after leaving the scourer or smut mill, and all dust,- chaff, smut, straw, chess and imperfect or light grain is thoroughly separated from the sound or heavy grain, and the chess and imperfect grain is also separated from the dust and trash. 2d. The invention consists in the peculiar arrangement of the fan in relation with the blast spouts and scourer or smut mill, or the'box which incloses it, as will be hereafter fully shown, whereby all the dust that enters the machine is drawn into the fan box and ejected therefrom, thus keeping the grain, both the sound and the light, perfectly clean and free from dust.” The specification describes, and the drawings show, the perforated shell; the cylinder within the shell, with beaters on it; the fan, in a case and with a discharge spout; the passages leading from the upper part of the chamber outside of the perforated shell to the lower part of the fan case; the curved trunk, divided by a vertical partition into two compartments, which communicate with the fan case; the slides to regulate the force of the blast; the horizontal bottom plate in the wind trunk; the spout leading into the inside of the scourer; the spout leading out of the scourer; the close outer case around the shell; and the auxiliary air inlets through the bottom of the
The patent of October 4th, 1853, to Butter and Rouzer, referred to by the patent office as the ground for the rejection of the application made by Howes and Throop in 1855, was a patent for a “machine for cleaning and separating grain.” The specification of- that patent says: “The .objects of our invention are to thoroughly cleanse* wheat, or other grain, of all impurities, and; also to separate the imperfect grains (which are of some use for feed, &c.,) from both the good grain and from the dirt. In the accompanying drawings fig. 1 is a vertical section through the feed tube, &c. Fig. 2 is a vertical section through the discharging spouts. Fig. 3 is a horizontal section through the scouring cylinder and concave;, a is a suitable frame, b is the- feed aperture
Howes and Throop, during the latter part of the year 1853, became agents, jointly, for the sale of territory and machines under the Rutter and Rouzer patent The claim of that patent' was this: “The narrowing of the spout near the grain-discharge m, in combination with the curved passages s, t, u and z, which receive and discharge at their respective apertures the light grain and trash taken from the grain-discharge aperture m.” As such agents, they, in January, 1854, sold the right to the Rutter and Rouzer patent, for 15 counties in the western part of New Fork, to E. Montgomery «fe Sons, of Silver Creek, N. Y., for $2,000. Pursuing their business of selling Rutter and Rouzer machines, they put up one of the machines on trial in a mill in Water-town, N. Y., and, finding defects in its working, they invented jointly and embodied in it, in actual working by early in June, 1854, the improvements claimed in the reissue. In the same month Throop went to Chicago and engaged in making machines with such improvements, and he continued to do so there and elsewhere until after the reissue was obtained. In the summer of 1854 Howes induced E. Montgomery & Sons to add such improvements to the Rutter and Rouzer machines which they were building. For two years from the spring of 1856 Howes was a partner with the members of the firm of E. Montgomery & Sons, under the name of Montgomery <& Co., in making the machines with such improvements. He then sold out his interest to the other partners, and made an agreement with them, in pursuance of which, after the patent of March, 1858, was obtained, he assigned to them all his interest in it. Since that time Montgomery & Co., and their successors, Howes, Babcock & Co., the latter firm composed of the plaintiffs in this suit, of whom the patentee Howes is one, have continued to make and sell machines embodying the improvements patented in the reissue.
The Rutter and Rouzer machine was intended to make three separations — into good grain, imperfect grain, and refuse. It had a preliminary separator, in which, by the action of a fan, as the grain entered the machine and before it reached the scourer, the straw, chaff and loose dust were blown out of it to some extent, while the grain descended by its greater weight, the refuse passing off through the eye of the fan. In the scourer the dust was de
The defence of a want of novelty in the inventions covered by the reissued patent of the plaintiffs is set up. In order properly to consider this question, it must be deter-' mined what is the proper construction of the claims.
The specification, in respect to the first •claim, disclaims the mere combination, broadly, in a smut machine and grain separator, of an air passage connecting an inclosed space outside of a perforated scouring cylinder, with a fan. But the first claim -is a claim to the combination with a suction fan, scouring mechanism, perforated Inclosing shell and outer tight easing, of a draught passage connecting the chamber outside of said perforated shell directly with • the.fan case, said passage being provided with auxiliary air inlets or openings, when the combination is arranged substantially as is described in the specification, and for the purpose set forth therein. The specification requires that the arrangement shall be such that the particles of smut and other impurities, after they are detached from the grain and drawn or forced through the perforations of the cylinder, will be removed and conducted to the fan, without commingling with or again coming in contact with the scoured grain. To effect this result requires an adequate arrangement of the air passages which furnish air for the blast through the draught passage to the fan, so that there may be a sufficient supply of air for the purpose. It is plain that no such combination is shown in the Butter and Bouzer patent. It shows no perforated shell surrounded by an outer tight casing, and no draught passage such as the plaintiffs’, and what is scoured off from the grain in the scourer leaves the scourer with the grain and not through a -separate exit for itself, and, therefore, has an opportunity to re-attach itself to the grain.
The patent granted to Nelson Platt, May 20th, 1851, for “improvements in smut machines,” is adduced to destroy the novelty of the plaintiffs’- first claim.1 The machine shown in that patent appears to be a very complicated arrangement, and there is no evidence to show that it ever was or could be a practically useful machine. It has, abstractly, a suction fan, a scouring mechanism, a perforated shell, an outer tight casing, a draught passage connecting the chamber outside of such shell with the fan case, and air inlets for supplying air to such chamber and such draught passage. But these various parts are combined and arranged and operate in a manner not substantially the same as the combination in the first claim of the plaintiffs’ patent, and for a purpose not substantially the same. The operation of the Platt machine is not such as to prevent the smut and dust which have been scoured from the grain from again coming in contact with the grain. On the contrary, in the Platt machine, smut and dust which have been detached come in contact with the grain.
The patents granted to Bedwell in October, 1854, to Horton in November, 1856, and to Canby in May, 1857, are subsequent in time to the date of the inventions of Howes and Throop, and the inventions shown in the patents granted to Bone in June, 1854, and to Sanders in .June, 1S54, are not shown to have been made and perfected, earlier than the date at which the inventions .of Howes and Throop were perfected. No earlier dates than the dates of those patents are' assigned to the inventions described in them, even if those inventions could be regarded as the same as those of Howes and Throop. The rejected applications for patents put in evidence are, of themselves, no evidence of the existence of perfected inventions at the dates of the filing of the applications, in the absence of any other evidence of the construction and operation at those dates of
As to the second claim of the plaintiffs’ patent, the specification of the reissue states that the patentees do not claim broadly the combination of two wind trunks for effecting a preliminary and a subsequent separation in a machine composed of a smut machine and a grain separator combined. The Rutter and Rouzer machine was a combined smut machine and grain separator, and it had -two wind trunks, which effected a preliminary and a subsequent separation. But the second claim of the plaintiffs’ reissue states that they claim, “in a combined scourer and grain separator, the arrangement of two wind trunks side by side, in the manner shown and described, and for the purpose hereinbefore set forth.” It is true that the preliminary separator in the plaintiffs’ machine is, in and by itself, like the subsequent separator in the Rutter and Rouzer machine, and the subsequent separator in the plaintiffs’ machine is, in and by itself, like the subsequent separator in the Rutter and Rouzer machine. But the arrangement and operation of the two wind trunks, in respect to the material operated on, in connection with and in reference to the grain scourer, involve novelty over and beyond anything that is found in the Rutter and Rouzer machine. The invention covered by the second claim of the plaintiffs' patent cannot be regarded as a mere duplication of the subsequent separator in the Rutter and Rouzer machine. The claim is one to the arrangement side by side, of two wind trunks, such as those described, in connection with a scourer, substantially as described, in such manner that there will be a preliminary separation into three parts of the material fed into the first wind trunk, substantially in the manner and by the means described, with means of regulating the air current in such first wind trunk by an independent damper, and so that the grain will then pass through the scourer and enter the second wind trunk, and be there operated upon for a separation of the material into three parts, substantially in the manner and by the means described, with means of regulating the air current in such second wind trunk by an independent damper, the air currents being produced by a suction fan arranged on the same‘%haft as, and above, the revolving beaters in the scourer, and with a divided eye into which the two wind trunks discharge. On this construction of the claim, it is not anticipated by what is found in the Rutter and Rouzer patent, or in the Piatt patent, or in any of the other patents or applications adduced by the defendant.
In so far as the third claim in the application for a patent filed by Montgomery and: Howes in January, 1857, covers anything now-claimed by Howes and Throop to have-been invented by them previously to that application, it is quite apparent, on the whole-evidence, that such third claim was inadvertently made, and without any design on the part of either Montgomery or Howes to-make it, and without any consciousness on the part of either of them that it was made.
The construction and arrangement covered by the claims of the reissued patent are-fully shown and described in the specification and drawings of the original application, and in those of the original patent. This appears clearly by a perusal of those-papers, as above set forth. Therefore, there is no foundation for the assertion that the-reissued patent is invalid because it claims-what is not shown or described in the original patent.
It is contended for the defendant, that: Howes and Throop, by withdrawing, in June, 1856, the application which they had' before made, and, by not filing a new application until February, 1858, abandoned, their invention to the public, and consented to its use by the public for more than two-years'before February, 1858; and that, therefore, their patent of March, 1858, was invalid.. But the facts shown, as before recited, demonstrate that there was no abandonment and no consent to public use. There was, in judgment of law, a continuous application. The direction to withdraw was accompanied by a direction to renew. The old model was used, as previously filed, for the-new application. The party cannot be made to suffer for the neglect of his attorney. There is no evidence of any intention to abandon, or of any act of abandonment, or of any declaration of abandonment, or of any consent to, or allowance, of public use, or of any such laches on the part of the-patentees, as • can amount to an abandonment, at any time prior to February, 1808. The case falls, I think, within the principles, determined in Godfrey v. Eames, 1 Wall. [68 U. S.] 317, and Smith v. Goodyear Dental Vulcanite Co., 93 U. S. 486.
The evidence satisfactorily establishes-that the defendant was engaged in manufacturing, prior to the bringing of this suit,, machines embodying the patented inventions.
There must be the usual decree for the-plaintiffs for an injunction as to both claims. of the patent and for an account of profits.