168 F. 927 | 7th Cir. | 1909
(after stating the'facts as above). Both the patent sued upon, and the alleged infringing- device, are drills of the type haying a single disk running at an angle to the line of draft, •the purpose of which is to dig open the furrow, and by the revolu- • tion of the disk to throw out the dirt — the shield and the disk holding the furrow open until- the seed is deposited — instead of wedging it apart by impaction through the means of a shoe, double disk, or mould board. We have just decided (Superior Drill Co. v. La Crosse Plow Co. 168 Fed. 923) that drills of this general type were old in the art, the particular co-operating function of the disk, and the shield in
Apart from the employment of a blade acting distinctively as a scraper of the disk, and attached to the toe of the boot, we agree with the Circuit Court that the Van Brunt patent constitutes a “so highly specialized combination” that the La Crosse device cannot be held to be an infringement. The reasons for this view are satisfactorily set forth in the opinion of the Circuit Court. 160 Fed. 501.
Exit we cannot agree with the Circuit Court that the idea of attaching a blade acting as a scraper to the toe of the boot, was anticipated in any prior patent. The patents cited in the opinion as proof of this statement, are the Colver patent, No. 12,895, and the Christman patent, No. 602,827; and at the argument it was urged upon us that though the Webster patent (No. 489,353) on its .face did not distinctively show such a scraper, such a scraper was actually employed by Webster in subsequent exhibitions of his device.
A careful examination of the proof fails to convince us with that clearness and certainty that the law requires in cases where prior use alone is alleged, that Webster ever employed his “cutter” as a scraper, and our understanding of his patent, as well as that of Colver and Christman, and other patents cited on that point is, that the part in the Webster patent called the “cutter” and in the Colver patent the “peculiarly shaped sword or divider” are in fact “cutters” or “dividers” as distinguished from “scrapers,” that is to say, their function is to cut or divide the earth in co-operation with the disk, and in no substantial way operate as a scraper of the disk — a purpose and function that in no way anticipates the Van Brunt scraper simply because, by adjustment, it may be made to act as a scraper. And the so-called “scraper” in the Christman patent is so widely different from the Van Brunt scraper, both in the point of its adjustment, and the manner in which it operates, that it cannot be held to be an anticipation.
Now it is just this blade in the Van Brunt patent, acting as a “scraper,” and made capable of such action by the manner of its attachment to the toe of the boot, that gives to the Van Brunt device a method of overcoming difficulties encountered in the sticky soil of the northwest that has made the Van Brunt device a new and valuable contribution to grain seeders- — the value of the contribution being shown by the way in which appellee has exactly copied it in its device.
To the extent, therefore, that appellee is using the Van Brunt scraper, its device is an infringement of the combination claimed in the Yan Brunt patent, and so the decree below is reversed with instructions to enter a decree in accordance with this opinion.