and is perhaps justified in taking that experience into consideration in passing judgment on the utility of the pad in suit.

This court cannot sustain the alleged defense of aggregation. The elements of the patent in suit co-operate and coact so that they produce new and useful results. There is a difference, and a substantial difference, between the combination of elements in the patent in suit and the combination found in the other pads to which attention has been called. Those who have had experience with horses and the shoeing of horses understand how important the shape and fit of the shoe is. It is easy to lame a valuable horse by a slight misfit of the shoe. It is as important, and in fact more important, to have the shoe or hoof-pad for a horse of a closer and better fit and form than in the case of a human being. The man or woman can tell "where the shoe pinches." The defect can be remedied, if any, in the shoe in use, in the next one made or purchased. With the horse it is different. The horse may show by its mode of travel or by lameness that there is trouble somewhere, but just where, only experts can tell, and oftentimes their skill fails. The proof of a good horseshoe or hoof-pad is in the using, and in its success in actual use.

This court finds and holds that there was patentable invention in the so-called Kent pad, the patent in suit. It is, of course, true that the success of a patented article does not of itself prove patentability, but commercial success and success in actual use is evidence of patentability. See Gandy v. Main Belting Co., 143 U. S. 587, 12 Sup. Ct. 598, 36 L. Ed. 272; Topliff v. Topliff, 145 U. S. 156, 12 Sup. Ct. 825, 36 L. Ed. 658. The established fact that the Kent pad has driven out others and gone into general use is evidence that it involved invention. Kinloch Tel. Co. v. Western Electric Co., 113 Fed. 659, 51 C. C. A. 369. See, also, Packing Co. v. Magowan, 27 Fed. 362, affirmed in 141 U. S. 332, 12 Sup. Ct. 71, 35 L. Ed. 781.

In this case it cannot be denied that the defendant has infringed the complainant's patent. It has closely copied it-so closely that the court is compelled to find infringement.

The Sheather pad of 1890 and the Sheather pad of 1891 do not show or establish anticipation.

The complainant's pad is declared valid. Infringement by the defendant is found. The complainant is entitled to a decree for an injunction and an accounting.

REGINA CO. v. NEW CENTURY MUSIC BOX CO.

(Circuit Court, S. D. New York. June 15, 1905.)

PATENTS-INVENTION-MUSIC BOX.

The Brachhausen & Reissner patent, No. 500,371, for a music box, is void for lack of patentable invention, in view of the prior art, which discloses every element of the combination shown in the patent that involves invention, in substantially the same combination.

In Equity.

Suit to restrain alleged infringement of United States letters patent No. 500,371, dated June 27, 1893, application filed December 19, 1892, and issued to the alleged inventors, Gustav A. Brachhausen, of Hoboken, N. J., and Paul Reissner, of Eutritzsch, Germany. The suit originally claimed infringement of United States letters patent No. 637,367, but, after the evidence disclosed the state of the art at the time that patent was applied for, the complainant withdrew all claims of infringement of that patent. The defenses are summed up in the proposition that in view of the prior art the patent in suit, No. 500,371, fails to disclose patentable invention; also clear anticipation. Prior public use is alleged.

Briesen & Knauth (Antonio Knauth, of counsel), for complain

ant.

Holden & Rogers (Henry Samuel Morton, of counsel), for defend

ant.

RAY, District Judge. The patent in suit relates to that kind of music boxes in which discs or rotary note plates are used to operate the vibrating tongues. It consists of a mechanism designed to facilitate the removing and putting in place of these discs. This frequent removal is necessary to change the tunes. This mechanism also drives or rotates these discs by means of small openings or depressions in the discs near the outer edge or periphery thereof, which engage with a sprocket wheel. There is also a hinged rod having friction wheels at short distances apart, which, when the rod is in position, press gently upon the revolving disc, which is turned or revolved by the said sprocket wheel, and thereby (such pressure) keep the disc evenly upon the vibrating tongues placed in line from near the center to the circumference of said disc, and beneath same, and also under the said rod. There is a central pin or pivot about which the disc revolves, and from this the disc is easily removed by lifting it up after the rod spoken of is raised. There is an adjustable sleeve on this pin or pivot beneath the disc, when in place, which supports the disc. The rod spoken of is hinged outside the outer edge of the disc, and may be swung completely over, so as to point away from the pin or pivot; but, when in position for use, such rod, with its friction wheels, has the free or unhinged end attached to the central pivot and fastened by a latch. Unhitch the latch, throw back the rod, and lift off the disc; place another disc in the same position, engaging one of the openings with the sprocket wheel, bring the rod back into place, and fasten it with the catch. These are the movements for removing and replacing the discs. The disc, as stated, is turned by the revolving sprocket wheel

which engages with the openings or depressions near the periphery of the disc.

The following quotation from the specifications points out the defects or difficulties claimed to exist in the prior art, and which this alleged invention described in the patent in suit was designed to remedy or overcome:

"Our invention relates to that class of music boxes wherein discs or rotary note plates are used to operate the vibrating tongues, and consists in the novel arrangement and combination of parts hereinafter described, and specifically pointed out in the claims. Heretofore in this class of instruments rotary note plates or discs have been driven from a shaft located in the central portion thereof, which shaft was operated by suitable mechanism. This was objectionable for many reasons. The motion imparted by the shaft located as above described was jerky and unsteady, which is a serious disadvantage in this character of devices. It required. in music boxes built upon a large scale, that the power for rotating the disc be very great, and it was found difficult to operate the disc to the slight degree often required. The object of our invention is to provide a simple device, which, with comparatively little power, will rotate the disc in a steady, positive manner, and to the smallest degree when necessary."

It seems clear that these specifications allege (1) that in the prior art the music discs were rotated by means of a revolving shaft at the central portion of the disc (the shaft, however, not being integral with such disc), which shaft was operated or turned by suitable mechanism; (2) that the rotating of the music disc by means of this centrally located revolving shaft gave to such disc an uneven, jerky, unsteady motion, and necessarily interfered with the musical sounds produced, and perhaps with the contact of the disc with the vibrating tongues; (3) the movement of the disc by this means, when the machine was operating, required great force, and it was difficult to impart slight, even motion. The purpose or object of the invention was to overcome these alleged defects or difficulties. The claims of the patent are as follows:

"(1) In a music box, the combination of the disc, A, having apertures, b, near the outer edge, and having playing edges, i, with the sprocket wheel, c, adapted to engage in said apertures, b, and means substantially as described for holding the disc down by pressure from above, substantially as and for the purpose specified.

"(2) The combination of the disc, A, means substantially as described for rotating said disc from the outer part thereof, rod, d, and friction wheels, e, mounted thereon, and adapted to bear upon the outer face of said disc, A, substantially as described.

"(3) The combination of the disc, A, provided with apertures, b, near the outer edge thereof, sprocket wheel, c, adapted to engage in said apertures, central pin, a, and adjustable sleeve, z, for supporting said disc, A, and upper bar, d, having friction wheels, e, all arranged substantially as and for the purposes set forth.

"(4) The combination of the disc, A, provided with apertures, b, near the outer edge, with sprocket wheel, c, adapted to engage in said apertures and rotate the disc, hinged rod, d, friction wheels, e, hung thereon, and adapted to bear upon said disc, A, central pin, a, and latch, g, substantially as described."

Of these claims, claim 4 is the more specific. It mentions all the elements of the combination referred to in all the others, except the adjustable sleeve for supporting the disc at the center. If these defects and difficulties existed in the prior art, and had not been met

and overcome by others by substantially the same means or mechanism, or combination of means or elements, and Brachhausen & Reissner, by the combination and means before described, and more fully described in the patent itself, met and overcame them, and it required or demanded more than the skill of the ordinary mechanic, skilled in the construction and operation of such devices. or instruments, to make and apply the combination described in the patent, there was a field for invention, and this patent came in and occupied the field, and is valid. I find and hold there was invention-inventive skill displayed-in transferring the power for moving the disc from the center to the periphery, supporting the disc both at the center and a point near the circumference, and holding the disc in place by means of the rod and friction wheels.

The elements of the combination described in the patent are: (a) The disc with holes or depressions near the circumference to engage the sprocket wheel. (b) The sprocket wheel so located as to engage these openings or depressions in the disc. (c) The central pivot or pin, on which is a movable or adjustable sleeve. These support the disc at the center, and keep it in place. (d) The hinged rod with friction wheels to keep the disc steady and even, and pressed upon or against the vibrating tongues.

But while there was invention in transferring the power from the center to the circumference, adopting means for steadying the disc, etc., the question is, are the patentees in the patent in suit entitled to the credit? Did they originate this change? Did they make this combination?

The statement in the patent in suit, "Heretofore, in this class of instruments, rotary note plates or discs have been driven from a shaft located in the central portion thereof, which shaft was operated by suitable mechanism," gives the distinct impression that means for rotating or driving the discs by power applied at or near the periphery of the disc were theretofore unknown, or at least that these discs in such machines had not been rotated in that manner. The other statements already quoted are to the effect that, because driven by power applied at or near the center, the difficulties to be remedied arise. The inventive idea, if there be one, seems to reside in transferring the means for rotating the disc from near the center to near the circumference thereof.

Turning to the prior art, in United States letters patent No. 267,482, dated November 14, 1882, for music box, issued to Miguil Boom, of Port Au Prince, Hayti, we find a brass or other metal annular disc rigidly mounted on a short vertical shaft journaled in a base, and a top crossbar. The disc is thus adapted to rotate in a horizontal plane. The disc is provided at its edge (circumference) with a projecting flange or ridge which fits into a notched or recessed guide lug attached to the inner side of the frame of the music box, whereby the disc is guided, and vibrations thereof are prevented. A circle of teeth project from the underside of the outer edge of the disc, and these engage a pinion (a cogwheel with teeth) which is mounted on the inner end of a shaft which is turned or revolved by a crank, or any machinery, or by clockwork. The disc

is provided with grooves and teeth. The bar has a comb, with teeth, etc., and as the disc revolves the music is produced. We have here a disc revolved or turned by means of power applied at or near its periphery. We have double means for keeping the disc in place and in steady contact with the teeth. The circle of teeth projecting from the underside of the disc, with which the teeth of the pinion or cogwheel mounted on the shaft for turning it, engage, form an element, or combination of elements, which are the mechanical equivalent of the openings or dents in or near the periphery of the disc in the patent in suit and the sprocket wheel, and which engage with each other to turn or revolve the disc. The whole idea of revolving the disc by power applied at the periphery instead of the center of the disc is there. So of the bar. They are not equivalents in the strict sense, but the general idea is there. Turning again to the prior art, we find that November 28, 1892, 20 days before the filing of the application for the patent in suit, one O. P. Lochmann, of Leipsic, Germany, filed an application for a patent for a musical box, in which were two claims, viz.:

"In musical boxes, a second disc, A, laid upon the note disc so as to cover the same, both discs being held in position by stud, C, said disc, a, being driven by engagement at its circumference with the driving mechanism, for the purpose specified, substantially as described and shown. (2) In musical boxes, a driving mechanism, T, which is carried in a frame fixed to one of the sides of the musical box so as to be readily removable, for the purpose specified, substantially as described and shown."

Turning to the drawings which accompany the claims and specifications, we find the music plate or disc adapted to turn or rotate, as in the patent in suit, on a suitable pin or pivot in the center, and removable therefrom. The same is true of the second disc. We have also a sleeve which supports these discs, but it does not appear whether or not it is adjustable. In place of the hinged rod of the patent in suit, we have a second disc, nonmusical, superimposed on the first or musical disc, and which at the circumference extends beyond the main or musical disc, being of greater diameter. Near the center pin or pivot is a stud which holds and carries this second disc on the same spindle or center pin or pivot as the main or musical disc is carried. This second disc lying on top of the musical disc keeps that rigid and steady, and, in a degree, prevents the jerky and unsteady motion referred to in the specifications of the patent in suit, and also maintains even contact with the vibrating tongues below. In this second disc, at its periphery, as in the disc of the patent in suit, are holes, apertures, or depressions which engage with the teeth of a sprocket wheel as in the patent in suit, and which wheel is the same in all essentials, if not exactly the same, as in the patent in suit, and is located in the same place, and acts in the same way to rotate the musical disc, except that in the patent in suit we have the apertures or depressions to engage the sprocket wheel in the circumference of the musical disc, while in the Lochmann application and patent (for it was subsequently patented) we have them in the supplemental disc. The great advantage of this is that with this construction it is only necessary to have apertures,