notice on the record, after the defendant's evidence had been closed. and before taking evidence in rebuttal, that the arguments would be restricted, on final hearing, to the claims above specified.

The defendant company makes a voting machine wherein are found, according to the plaintiff's expert, the subject-matter and all the elements of the above claims, in substantially the same relation as set forth in the respective patents. No testimony in contradiction of this has been introduced by the defendant, but it denies the validity of each and all the claims in question.

The following description of a voting machine containing the mechanism described in both patents is quoted from the plaintiff's brief:

The machine "has a so-called key-spindle 50, for each candidate, each spindle having a register connected thereto, so that for each half of a full rotation forward, a single vote will be registered. A locking-lever 56 is provided for each key-spindle, which operates to lock the same against further forward rotation, when it has been rotated a half revolution forward, and means, as a pawl 49, are provided to prevent rearward rotation thereof, under certain conditions. The key-spindles are arranged in a series of vertical rows, and a vertical bar 44 is provided for each row, which is lifted, to a certain extent, when a spindle in the row is rotated forward, and limits the number of spindles in the row which may be operated by a single voter, i. e., according to the number of candidates which may be voted for under one head. This is done by providing a stop, which limits the extent to which the bar is raised, the stop being adjusted according to whether the voter is to be permitted to vote for one or more candidates for the same office. These bars are also moved to lock all the spindles against rotation, as the voter leaves the booth, so that the machine cannot be * operated,

except in the regular way. The entrance to the machine or booth is guarded by a lever which the voter must lift as he enters, and in doing this, he unlocks these bars so that the key-spindles may be operated, and the exit from the machine is guarded by a similar lever, so that, as the voter leaves the machine, he must lift this lever, and, by so doing, he draws down all the bars and locks them, and by locking them locks the key-spindles so that the machine cannot be operated until the entrance lever is again lifted." [1] Claim 3 of patent 960,020 relates to the key-spindles and the means for regulating or controlling their rotation. It is as follows:

"3. In a voting machine, a combination of a manually controlled keyspindle, a rack having teeth, a wheel having teeth for engaging said rack, a locking-lever and a cam-wheel, turning with said toothed-wheel and engaging said locking-lever to prevent more than a half revolution forward of said key-spindle by any one voter, but which permits the key-spindle to be turned back at any time before the machine is set for the next voter."

There is an obvious difficulty in determining from the above language used which of the things mentioned as elements of the combination claimed are intended to be described as permitting the key-spindle to be turned back at any time before the machine is set for the next voter. And the specification and drawings show that none of the elements mentioned as included in the combination can properly be said to effect this result. Means to effect it are indeed described in the specification and drawings, but they show a feature essential to the accomplishment of the result by the means described, viz., a dog or pawl 49, pivotally mounted in the casing of the machine and weighted at one end in order to keep it normally away from the cam-wheel mentioned in the claim, wherewith it is at times to be engaged. Of this dog or pawl there is no mention in the claim. I do not think it can

be brought in by implication or inference under the circumstances shown. Without it, the claim is either too incomplete and indefinite to be valid, as to the mechanism whereby turning back of the keyspindle is to be "permitted" within the limits stated, or it is anticipated by a prior voting machine patent, also issued to Johnson (No. 737,412), no infringement whereof is charged.

[2] The plaintiff's other patent, No. 1,019,476, relates to the mechanism whereby the levers lifted by the voter when he enters or leaves, unlock or lock the bars so as to permit or prevent operation of the key-spindles.

Claim 4 of this patent reads:

"4. In a locking device for registering and similar machines, the combination of a shaft provided with a plurality of transverse members adapted to engage and lock the operative parts of the machine, means to unlock said shaft, means to rotate said shaft when unlocked to release said operative parts, a finger mounted on said shaft, a cam-lever adapted to engage said finger to return said shaft to a locked position and means to operate said cam-lever."

The defendant objects that the element "a cam-lever, etc.," appears from the specification and drawings to be neither a cam in any proper sense, nor a lever in any sense, and that the claim is left by such a misdescription too indefinite and uncertain to be valid. The specification and drawings, however, leave no doubt as to the precise nature of the thing to which the name criticised is applied, or as to its construction or mode of operation. I am unable to say that the term used is so inapplicable as to be misleading, and unable therefore to hold this claim invalid.

Claim 5 of the same patent, No. 1,019,476, is as follows:

"5. In a locking device, the combination of a shaft provided with a plurality of transverse members adapted to engage and to lock the operative parts of a given mechanism, means to lock said shaft when it is in a position to lock said operative parts, means to unlock said shaft, a lever to control said unlocking means, means to operate said shaft when unlocked to release said operative parts, means to return said shaft to a locked position and a lever to operate said returning means."

The defendant contends that all the elements of this claim are found in a patent belonging to a nonanalogous art, viz., United States patent to C. L. Weser, No. 448,308, for pedal-action for piano-fortes. The mechanism there described might be said to constitute a locking device and to include a shaft, but the shaft has a plurality of transverse members adapted to engage and lock operative parts of a given mechanism only in case a crank, formed by a U-shaped lateral bend in the shaft, whereby a rotation of the shaft is made to raise or lower what is called the action-rod, can be counted as two transverse members instead of one. The patent in suit makes it clear that the means to lock the shaft when in position to lock the operative parts and the means to return the shaft to locked position, which form part of the combination claimed, are independent and distinct elements; whereas, in the mechanism of the Weser patent the same parts of the mechanism constitute the means for effecting both results. The above are not the only respects in which the attempt to find all the elements of the claim under consideration in the Weser patent requires a resort to

constructions which seem to me strained and unnatural. It is evident that the mechanism patented by Weser was neither intended to accomplish, nor capable of accomplishing, the purposes of the combination claimed, as found, by Johnson. I am therefore unable to regard this claim as anticipated.

I must therefore hold that claim 3 of Johnson patent, No. 960,020, is invalid, but that claims 4 and 5 of Johnson patent, No. 1,019,476, are valid and infringed by the defendant. There may be a decree accordingly.

MCCLAVE-BROOKS CO. v. M. H. TREADWELL CO. et al.
(District Court, M. D. Pennsylvania. March 7, 1914.)

No. 108.

1. PATENTS (§ 328*)—VALIDITY—ANTICIPATION.

The McClave patent, No. 831,178, for an improvement in rocking grate bars having fuel supporting caps beveled downwardly at the edges from the top surface, and one edge of each cap overlapping its neighbor, permitting expansion without making large initial spaces between the caps, and without offering obstruction to the movement of fuel on the grate surface, required for the burning of small-sized anthracite coal, held void for anticipation.

2. PATENTS (§ 328*)-INVENTION.

The McClave patent, No. 831,178, for an improvement in rocking grates for the burning of small-sized anthracite coal, in so far as it provided for cutting or rounding off the angular edge of the grate points where they overlap each other, so as to avoid interference with the fireman's cleaning hoe if a point should turn or ride up beyond its adjoining neighbor, was a mere application of mechanical skill, which would naturally have suggested itself to a fireman or foundryman, and did not constitute patentable invention.

In Equity. Suit by the McClave-Brooks Company against the M. H. Treadwell Company and another for patent infringement. Bill dismissed.

Welles & Torrey, of Scranton, Pa. (Melville Church, of Washington, D. C., of counsel), for complainant.

A. A. Vosburg, of Scranton, Pa., and Clifton V. Edwards, of New York City (Julian S. Wooster, of New York City, of counsel), for defendants.

WITMER, District Judge. This suit is brought by the McClaveBrooks Company against the Stoever Foundry & Manufacturing Company and the M. H. Treadwell Company for infringement of letters patent No. 831,178, for improvement of grates, granted September 18, 1906, to William McClave, complainant's assignor. The case is at issue on plea to the jurisdiction of the Treadwell Company and on answer filed by the Stoever Company. The answer sets up the usual defense of want of invention, anticipation by prior patents and alleged prior uses, and noninfringement.

Though the claims of the patent are silent, the inventor testifies, and it also appears from the specifications and general design of the con

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

struction, that it was his purpose, and he so constructed his grate, to serve the purpose of economically burning very small sizes of anthracite fuel, generally known as Nos. 1 and 2 buckwheat. The general nature of the invention is stated in the opening paragraph of the specification as follows:

"This invention relates to improvements in grates, and particularly to rocking grates, which are pivotally mounted or journaled in a combustion chamber of a furnace in such a manner that they are capable of being rocked for dumping the material thereon into the ash pit."

The object of the invention appears to provide a grate bar wherein the edges of the rocking bars will not lock or bind together when expanded by heat, nor interfere with the use of the fireman's tools; also to provide the rocking grate bars with edges or noses which will fit together, so as to prevent the running through of fuel between them, and, further, to provide means for tipping the bars in one direction with adjustable means to prevent the overlapping edges or noses from pounding each other. In the language of the specification:

"It is the object of the invention to provide a grate in which rocking bars may be used, the said bars tipping only in one direction for dumping materials from the grate surface, their edges being so shaped as to be capable of moving one upon the other to some extent to permit of the expansion of the bars under great heat and yet not interfere with their being rocked for dumping the materials into the ash pit, not to materially interfere with the free use of fireman's cleaning implements, such as slash bars, hoes, etc., when in normal position. It is the further object of the invention to provide a rocking grate bar with fuel-supporting portions or caps having noses which match and fit upon the noses of adjacent caps, to prevent the running through of fuel and to provide means for rocking the bars in one direction and adjustable means for controlling the return of the bars and prevent them from pounding one upon the other."

These objects are to be obtained by an invention as claimed in recitals of various combinations and permulations of the elements of construction in the patent, numbered 1, 2, 3, 5, 6, 7, 8, 13, 14, and 15, all of which, excepting the eighth and thirteenth, relate solely to the mechanism of the fuel supporting bars as typified in the following claim:

"6. A grate mechanism, comprising rocking grate bars having fuel supporting caps, beveled downwardly at their edges from the top surface, one edge of each cap extending downwardly to a greater extent than the other edge, so that adjacent edges of the bars may lap upon each other, the lapping of the bars permitting of the expansion of the caps under the action of heat without making large initial spaces between the caps, and without offering obstruction to the movement of fuel upon the grate surface, when in normal position."

Claims 8 and 13 add the additional element of "means controlling the extent of movement of the bars, to preserve a space between the said lapping teeth."

Truly the defendant's device embodies means for preserving a space between the lapping teeth of proximate grate caps and for limiting the extent to which said teeth may approach each other. However, these means are vastly different in construction and to some extent in function, as admitted by the patentee, McClave. In the complain

ant's device, as appears from the drawing, the links (17) by which the several grate bars are simultaneously tilted is connected by a rod (19) operated by a lever (22) which swings against an adjustable stop (25).

The defendant's grate is provided with means cast integral with the journal, namely, a projection on the journal having practically a straight side on it to strike the vertical side of the journal bearing when it is moved, and it is stopped thereby when the grate is rocked to a certain distance.