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•The plaintiff claimed an Infringement of the twentieth and twenty-first claims of the Steward patent, which read as follows:

"(20) The combination, in a grain binder, of moving butt-adjusting mechanism and the board, di, substantially as described.

“(21) The combination of the swinging butt adjuster, the arms, d2, 03, d4, and the board, di, pivoted to the swinging butt ad. juster, substantially as described.”

Upon a hearing upon pleadings and proofs, the court below dismissed the bill upon the ground that the Olin patent was not in

fringed, and that the Steward patent was inThe plaintiff claimed an infringement of valid by reason of a certain device theretothe first claim of the patent, which reads as fore used, which was held to have anticifollows:

pated the patent. From this decree plaintiff "(1) In combination with a harvester ele appealed to this court. The opinion of the vator, a swinging elevator pivoted at its low circuit court is reported in 40 Fed. 236. er end, and suitable devices for shifting its

Ephraim Banning and Thos. A. Banning, upper end, whereby the swinging elevator for appellant. P. C. Dyrenforth, for appellee. forms a means for elevating the butts of the grain and delivering grain of different

Mr. Justice BROWN, after stating the facts lengths at the same point, substantially as

in the foregoing language, delivered the specified."

opinion of the court. In the patent to Steward for improvements

1. The Olin patent relates to a harvesting in grain binders the patentee stated:

machine, and more particularly to a certain "The object of my invention is to provide method of elevating the grain from the harmeans that, combined with an automatic

vester platform, upon which it falls as it grain binder, shall make it automatically reg is cut, to the top of the delivery apron, where ulate the position of the band on the gav it is discharged from the machine, either into el,-that is, shall automatically place the the hands of a binder or into a mechanical band upon the gavel in its proper position, grain binder, as the case may be. relative to the length of the grain, without In machines of this description, the grain, any aid or attention from the operator; and as it is cut, falls upon a platform, and is its nature consists in locating, in such a posi carried to the base of an endless helt protion as to be influenced by the heads of the vided with teeth, which seize the grain and incoming grain, or gavel, or bundle, a de carry it over the driving wheel of the harvice to be moved thereby, the said device vester, up to a bigher level than that where connected with means for adjusting the rel the binding is done, from which point it ative positions of the said grain and the falls a short distance to reach the binder. binding mechanism."

The side of the elevator upon which the

grain ascends is termed the "grain side"; ent that one of these rollers may be driven the side upon which it descends to the bind loy proper gearing, and it is so represented er is called the “stubble side.” In the opera in tbe model. The face of this small belt tion of a harvester of this kind, it was ob moves in the same direction as the horizon:al served that, as the grain mounted the ele. belt, and is set at an angle with the line of vator on the grain side, the butt end of the direction or travel of the grain. The specific stalks, being heavier than the heads, ex cations state that this belt or apron “may be hibited a tendency to lag behind, so that the operated either by the friction of the passstalks assumed a diagonal position across ing butts of the grain, or it may be given a the harvester platform. The consequence positive movement by gears or belts and pulof this was that the heads of the stalks were leys from any convenient driving shaft, the delivered to the binder in advance of the movement of the apron in either case serrbutts, and obliquely,-a peculiarity which in. ing to move or shore backwards the butts terfered with the proper binding of the grain. of the grain projecting over the finger bar." In addition to this, the different lengths of This auxiliary belt of Elward's acts much in the stalks required some means whereby the the same way, in relation to grain movid binding band might be placed centrally to by and on the horizontal apron, that the austheir lengths; that is, if the stalks, after iliary belt of Olin does upon grain carried being cut, are 12 inches long, the band upward by the main horizontal belt, shoving should be placed about 6 inches from each the grain endwise towards the rear of the end, but if the stalks are 5 feet long it should machine while it is being carried along. No be placed about 242 feet from each end. To method is stated, however, by which the capobviate the difficulty of the butts lagging be vas may be rotated, and, even if it were, it hind, and also to secure proper delivery of would still be incompetent to perform the the grain as to length, Olin invented an aux office of the Olin belt, because it is not ad. iliary belt, located at a right angle to the justable at either end. main belt, but moving in the same direction, The patent to George F. Green of March and at somewhat greater speed. This aux 0, 1877, also shows an adjustable butter, iliary belt was also provided with teeth, which he designates as a “grain guide." plp. which engaged the butt end of the stalks, oted at the lower front corner of the elevator and, moving faster than the main belt, kept frame, on the grain side, and provided at its the butts up to a level with the heads. As upper end with a bandle convenient to the shown and described in the patent, this driver sitting in his seat. This so-callad auxiliary belt was arranged with one end grain guide is much like that of Olin's in located at the lower end of the main belt, shape and location, though apparently not and near the carrier platform, and the provided with a movable belt, and hence not other end at the apex of the main belt, or adapted to hasten the ascent of the butts, the highest point to which the grain as but only to shove back the butts of the short. cends. The mechanism was intended to act er stalks. Instead of operating to hasten upon the swath of flowing grain, and change the butts, it can only operate to retard them its direction, pushing the stalks endwise, so to the extent of the friction between the butts, that they might be delivered to the binder and the surface of the board. in proper position to be bound in their center, • The patent to C. W. and W. W. Marsh of and also hastening their butts, so that the January 5, 1864, shows, alongside of the main stalks might not be delivered diagonally, but belt, an auxiliary belt, mounted on the same parallel with each other and with the flow rollers as the main belt, and therefore proof the main belt. The claim describes this ceeding at the same speed. The horizontal swinging elevator as pivoted at its lower belt carrying the grain over the harvester end, with suitable devices for shifting its platform is described as traveling faster than upper end, whereby it forms a means for the main elevator, so as to operate to elevating the butts of the grain, and deliver- straighten the grain, or bring the stalks par ing grain of different lengths at the same allel to each other before beginning their aspoint.

cent. The auxiliary belt, however, is not ar Devices bearing certain similarity to this, ranged on vertical rollers, as in the Olin pat. and having in view the performance of a ent, but upon the same rollers as those car. like function, were not wholly unknown to rying the main belt; neither is it pivoted at the prior art. These devices, though not its lower end, nor capable of being shifted claimerlito fully anticipate the Olin patent, at its upper end, and hence is incapable of are important in their bearing upon the con moving the grain endwise to even the batts. struction of this patent and upon the alleged There are two or three other patents which infringement by the defendant.

appear to have a somewhat remoter bearing Thus the patent to Elward of July 6, 1875, upon the Olin patent, but are not necessary exhibits two rollers mounted in front of the to be noticed in the consideration of this horizontal belt. These rollers carry a short belt or apron, whose face, like that of the The gist of Olin's invention seems to be in Olin patent, is perpendicular to the face of his taking the grain guide used by Green, the horizontal belt. It is stated in the pat providing it with a belt and teeth, somewhat


upon the principle of the independent belt construed to cover a similar device located or bands used by the Marshes, traveling fast upon the stubble side, pivoted at its upper er than the main belt, and for the purpose end, and swinging at its lower end. We are of keeping the butts in line with the heads of opinion that it cannot. Plaintiff claims of the stalks. The important feature, how in this connection that, by the lower end ever, connected with all these prior patents, of the swinging elevator is in reality meant is found in the fact that the devices described the receiving end, and that, as the defend. in them were all located on the grain side ant's device (which can hardly be called an of the elevator, and were designed to secure elevator at all, since it facilitates the descent parallelism in the stalks as they mounted of the grain) is pivoted at its receiving end, the main belt, and before they reached its which happens to be its upper end, it is apex. Olin proceeded upon the same theory, within the spirit, though not within the let. and located his swinging elevator or auxil. ter, of the claim. But of whatever elasticity lary belt upon the same side of the main ele of construction this claim might have been vator, and described it in his claim as pivo | susceptible if it had been a pioneer patent, oted at its lower end, with suitable devices it is clear that, in view of the prior devices, for shifting its upper end.

of which it was only an improvement, and of In defendant's device the grain is carried the explicit language of the specification and up upon the main belt or elevator, as in the claims, the patentee had only in view an Olin patent, without, however, any means auxiliary belt located upon the grain or aswhatever for hastening the butts or moving cending side of the elevator. Indeed, from the stalks endwise upon the harvester ele the statement in the introduction of the vator; but, after having been lifted or carried specification, through all the description, and over the apex of the main belt, and while in each of these claims, care is taken to em. descending upon the stubble side to the bind- | phasize the fact that the invention relates er, they are adjusted in position by a travel to the combination, with the ordinary haring belt or apron almost identical in princi- | vester elevator, of a butt elevator which opple with that of the Olin patent, but pivoted erates upon the butts of the grain while the at its upper end, and swinging at its lower grain is being lifted upon the main belt, so end. This device is shown in a patent to as to hasten the ascent of the butts and Bullock & Appleby of October 31, 1882, in move the stalks back upon the barvester elewhich the prior use of the plain-face deflect vator. In no one of the six claims of the or board or surface was recognized, but was patent is there a suggestion that the ele said not to be a sufficient means for effecting vator belt, Q, could be located upon the stubthe desired adjustmentof the grain stalks end ble side, although this belt is made an ele wise. “The butt ends of the stream of grain ment in all but one of the claims. will lag by contact with the stationary sur If Olin had been the first to devise a con. face of such a designed deflector or adjuster, trivance of this description for adjusting the and the grain will not be properly guided flow of grain upon the main elevator, it is to the binder or the point at which the bind possible that, under tbe cases of Ives v. ing is to be done." Their invention consists, Hamilton, 92 U. S. 426, and Hoyt v. Horne, as they state, essentially in the employment 145 U. S. 302, 12 Sup. Ct. 922, a construction of an adjuster and deflector composed of a broad enough to include defendant's device traveling surface, mounted in an adjustable might have been sustained. But in view, frame, and provided with suitable means not only of the prior devices, but of the fact for operating it, by which the cut grain, that his invention was of doubtful utility, while passing from the delivery end of the and never went into practical use, the conconveyor to the binder, shall be perfectly struction claimed would operate rather to adjusted lengthwise of its stalks, and to an the discouragement than the promotion of extent corresponding to the length of the inventive talent. Not only does it appear grain, so as to effect a presentation of the that the device described in this patent did grain always in a given relative position to not go into general use, but that the mechanthe binder devices of the machine and in ism set forth in the patent to Bullock & Approper condition for binding.

pleby of October 31, 1882, under which the The third and most important claim of the defendant manufactured its machines, was patent was for “an endless belt moving in extensively sold throughout the country for the direction of the grain delivery, and op about eight years before any assertion of ad. erating in contact with the stubble end of verse right under the Olin patent, and that the grain on its passage from the elevator the plaintiff himself became a licensee under to deliver it to a binding mechanism, sub the Appleby patent, and manufactured his stantially as set forth."

own machines in accordance therewith. The real question in this case, as between Another fact is deserving of consideration. these two devices, is whether the first claim While the application for the Olin patent was of the Olin patent, describing a swinging pending, another application was made by elerator located upon the grain or ascending McGregor & Flenpekin, showing a grainside of the main belt, pivoted at its lower adjusting device similar to that used by the end, and movable at its upper end, can be defendant; that is, a butt adjuster like that

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of Olin's, bat located upon the descending against the butts of the sheaf of grain, after line of grain travel, and pivoted at its upper it passes the butt adjuster proper, and wbile end instead of its lower end. This applica it is being acted upon by the binding mechan. tion was thrown into interference with that ism. This board, di, is described in the of Olin; the examiner holding the subject- patent as "a thin board or plate of metal, as matter involved in the interference to be “an wide as the adjusting canvas, and pivoted endless belt moving in the direction of the to the frame of the latter at its lower exgrain delivery, operating in contact with the tremity. From this board reaches upward end of the grain to deliver it to a binding and inward an arm, d2. The board and mechanism." This interference seems to frame are as one piece; but the board itself have been decided in Olin's favor, since a is made in two parts, so that its greater patent was subsequently issued to him; but portion (which is the lower) can be removed." inasmuch as he thus was warned of the As the grain advances into the binding reclaim of McGregor & Flennekin, and of its ceptacle, the board bears against the butts, extent, it is somewhat singular that he did and holds them in an even condition, and in not at least endeavor to obtain an enlarge- such a position as to insure the central bindment of his claim to cover an endless belt ing of the bundle. In practice two forms of moving in the direction of the delivery, this extension of the butt adjuster have been whether such belt were located upon the used,-one consisting of a board or sheet-iron grain or stubble side of the elevator, and plate rigidly secured to the butt adjuster at thus anticipate McGregor & Flennekin. His its lower end, and the other consisting of such failure to make an effort in that direction a board or plate pivotally connected to the indicates a consciousness on his part that butt adjuster at its lower end, and connected he had limited himself to an endless belt up to the binder in such a way as to cause it to on the grain side, and the fact that the Mc. remain “parallel with itsell" in the various Gregor & Flennekin patent was subsequently positions which it assumes. In other words, issued, with the broad claim of the endless when the pivotal form of extension is used, belt moving in the direction of the grain the connections are such that, while the angle delivery, indicates that, notwithstanding the of the butt adjuster with the top of the binder interference, it was not considered as an changes, the angle of the extension and the ticipated by the Olin patent previously grant same board remains constant, or nearly so. ed. In the meantime, and during the pend- Defendant's machine is provided with a more ency of the Olin application, Bullock & ing butt-adjusting mechanism, and also with Appleby applied for a patent upon the com a board pivoted to the lower end of the butt bination of the traveling apron with the table adjuster, practically identical in its construcof the grain binder, as used by these de tion and operation with that of the Steward fendants, and a patent was issued to them patent. The defenses to these claims are: October 31, 1882. If Olin were entitled to (1) That claim 20 is void, in that it de all that plaintiff now claims, it would seem scribes an incomplete and inoperative inven that the patent to McGregor & Flennekin, as tion, and if completed by reading into it the well as that to Bullock & Appleby, are in. necessary specifications the defendant does fringements upon his own. It is possible that not infringe. Olin was entitled to a broader claim than that (2) That claim 21 is not infringed by de to which he limited himself; but if he de fendant's machine. scribed and claimed only a part of his inven. (3) That both claims are void, because tion, he is presumed to have abandoned the Steward was not the first inventor, and be residue to the public. McClain v. Ortmayer, cause substantially the same device as shown 141 U. S. 419, 12 Sup. Ct. 76. There was no and described in the patent and referred to error in holding that the Olin patent had not in the claims was in public use in the United been infringed.

States for more than two years before the 2. There are 21 claims in the Steward pats application was filed. ent, the last two of which only are involved As the last defense goes to both of these in this controversy. These claims are as fol claims, it may properly be considered first. lows:

The English patent to Howard & Bousfield "(20) The combination, in a grain binder, of 1881 may be left out of consideration, be of moving*butt-adjusting mechanism and the cause, although it antedates the Steward patboard, di, substantially as described.

ent, Steward appears to have completed his "(21) The combination of the swinging butt invention and made a working model before adjuster, the arms, d2, ds, and d4, and the the date of the English patent. His oath board, di, pivoted to the swinging butt ad was accepted by the patent office as decisive juster, substantially as described.

of the fact, and a patent was issued to him The peculiar feature of this portion of the upon it, and the model, wbich was put in eripatent is in the attachment to a butt ad. dence, was shown to have been completed as juster, such as is described in the Bullock & early as February, 1881. Appleby patent,—that is, upon the stubble The court below found, however, that the side of the elevator,-of a board pivoted to device in question was invented and publicly the end of the movable butt adjuster, to bear used by one Gottlieb Heller on his farm in


Kansas in the harvest of 1877–78. The im on as a rigid extension at first, and, after portance and peculiar character of the testi using it a day or two, substituted an automony upon this point will justify a some matic extension, which he believes to have what extended analysis and consideration of been the identical device put in evidencia it. Heller is a Kansas farmer, who also ap He says his father afterwards put a stiff one pears to have been for some years agent for on the second binder they bought. the Beloit-later the Milwaukee-Harvester One Edward D. Bishop saw only the rigid Company. He testified that in 1878 he extension, and did not see the improved debought from an agent of the Beloit Company vice. Rosina Heller, the wife, testified that a combined harvester and binder, which had she ran the harvester and binder in the a traveling butt adjuster precisely as it ap harvest. of 1878. She testified generally to pears in the Bullock & Appleby patent, ex the use of the butt adjuster, with the adjustcept that it had no construction correspond able extension, during the year 1878. ing to the board, di, of the twentieth claim. From the testimony in reply to this it apHe found that when the grain was short and peared that the butt adjuster of tin or iron, thin it did not work well, so that he added said to have been first made in 1878, and an extension to the butt adjuster, to keep which was put in evidence, bore no marks the straw of the bundle even at the butts. whatever of nails bavi been driven into This extension, as he explained it, was first it; also, that the iron extension which Helmade with a piece of tin or sheet iron nailed ler's son swore was from a piece of a Kirby on to the frame of the butt adjuster. This rake owned by them, and bought of a firm arrangement proved unsatisfactory. He then in Junction City, could not have been taken says he made an extension out of sheet iron from a Kirby self-rake, since that pattern and heavy hoop iron, which would adjust of rake did not contain any such sheet Iron and keep*straight with the butt of the bun as the extension was made of. It further dle, and in that way it satisfied him. He appeared that the extension came from a illustrated this device by a rough sketch,con machine called the "Triumph,” which Heller taining much the same elements as those de never owned, but which belonged to another scribed in claim 21 of the Steward patent. man,-one Schlesener, who lived some 8 or He then produced what he claimed to be the 10 miles distant. It further appeared that identical device which he made in 1878, and the extension was not applied until 1880, used publicly in the barvest of that year. and was then rigidly fastened by Heller and This device was put in evidence. He says Schlesener to the frame of the butt adjuster, bis wife and son helped him in the harvest, instead of being pivotally attached, as claim. and drove the machine which was used to ed by Heller. This machine was subsequentcut part of 250 acres. He also attemptedly, and in 1882, bought by one Messing, to use the device the next year, 1879, but the whose son testified that at that time the ex. grain was so short it proved unsatisfactory, tension was rigidly fastened to the adjuster, and he took it off and elevated the grain into and so remained until the spring of 1883, a wagon. In 1880 he got a new binder, when it passed out of his possession. It furwhich the adjustable extension did not fit, ther appeared that Heller was an agent for and for lack of time he put on a rigid one the Milwaukee Harvester Company, which instead of an adjustable one, though he pre was making butt adjusters with pivoted exferred the latter. At various time he put tensions, was interested in defeating the on rigid ones for other persons. The pivoted Steward patent, and took an active part in butt adjuster represented in his sketch, and securing his testimony. relied upon to establish the prior use, was This entire evidence, taken in connection thrown aside and lost sight of for several with certain damaging admissions made by years, Heller never applying for a patent, | Heller as to the compensation he received, oor taking any steps towards the introduc both for his testimony in this case and for tion of the device.

his concealment of certain facts in relation One Rubin, a neighbor of Heller's, who sold to another patent, throws discredit upon the him the harvester and binder he used in 1878, whole case made by the defendant with rewent to Heller's farm in the harvest of that spect to the anticipation of the Steward patyear to see how it worked, when Heller's son ent. Taking this evidence together, it falls called his attention to an improvement in the far short of establishing an anticipation butt adjuster which he said his father had with that certainty which the law requires. inade; but he evidently did not remember As we have had occasion before to observe, whether the board extension was rigidly or oral testimony, unsupported by patents or pivotally attached to the adjuster, though he exhibits, tending to show prior use of a dethought it was screwed upon the frame of the vice regularly patented, is, in the nature of adjuster, stiff.

the case, open to grave suspicion. The George Heller, the son, testified that bis Barbed Wire Patent, 143 U. S. 275, 12 Sup. father made an extension, like the one intro Ct. 443, 450. *Granting the witnesses to be? duced by him, for the harvest of 1878, and of the highest character, and never so conthat the sheet-iron piece was from an old scientious in their desire to tell only the Kirby self-rake. He seemed to have put it | truth, the possibility of their being mistaken

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