(259 Fed. 575) RUSSELL GRADER MFG. CO. v. F. B. ZEIG MFG. CO. 1. PATENTS 328-INFRINGEMENT-ROAD GRADER. The Wold patent, No. 918,633, for a road grader, held not infringed. 2. PATENTS 238-INFRINGEMENT-OMISSION OF ELEMENT. A claim is not infringed, if one of its elements is omitted, without the substitution of an equivalent. 3. PATENTS 246-INFRINGEMENT-OMISSION OF ELEMENT. In an overcrowded art, where a broad generic invention is not possible, a defendant, who omits altogether one element of a combination, cannot be held as an infringer, even though he makes another element do the double work. Appeal from the District Court of the United States for the Southern District of Ohio; John E. Sater, Judge. Suit by the Russell Grader Manufacturing Company against the F. B. Zeig Manufacturing Company. Decree for defendant, and complainant appeals. Affirmed. A. C. Paul, of Minneapolis, Minn., for appellant. Border Bowman and Paul A. Staley, both of Springfield, Ohio, for appellee. Before WARRINGTON and KNAPPEN, Circuit Judges, and WALTER EVANS, District Judge. KNAPPEN, Circuit Judge. Suit for infringement of United · States patent No. 918,633, to Wold, April 20, 1909, on road graders. The bill includes also a charge of infringement of a road grader patent to Clemons, No. 924,966, also issued in 1909. In the District Court the Wold patent was held not infringed, but claims 2 and 17 of the Clemons patent were held infringed. Defendant alone appealed from the interlocutory decree, which was here reversed so far as the Clemons patent is concerned. Zeig v. Russell, 249 Fed. 56, 161 C. C. A. 116. Plaintiff now appeals from so much of the final decree below as holds the Wold patent not infringed. [1] Plaintiff's machine, as constructed under the Clemons patent, is illustrated and described in our opinion on the former appeal. 249 Fed. 57, 59, 161 C. C. A. 116. Defendant's machine there illustrated was held not to infringe the Clemons patent, for the reason that, while the mechanism of that patent is such that normally the wheels always remain parallel with the drawbar, no matter what change is made in the direction of the scraper blade, yet in the regular operation of the machine the wheels are held in the desired position with respect to the drawbar by means of stop collars on the alignment bar, thus making the manual release of the collars necessary to adjustment of the scraper blade to a different operative position, while defendant's mechanism wholly lacks the stop collars, and is so constructed that the wheels For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 171 C.C.A.-3 must always move automatically with the drawbar and parallel with the line of draft. The general structure and mode of operation of the Wold and Clemons machines are the same. Wold, who is subsequent to Clemons, differs from the latter in but two respects material here: (1) In having in substance the automatic feature just referred to, which defendant has, but which Clemons has not, and whose holding means we held gave Clemons invention over the patent to Mendenhall, issued 25 years earlier; and (2) in respect to the scraper blade carrying frame contained as an element in the claims of the Wold patent in suit, which are Nos. 5 and 9, and which are printed in the margin.1 Conceding, for the purposes, at least, of this opinion, that the claims in suit contain invention over the prior art, the question of infringement ultimately depends upon whether defendant has the elements of a "frame pivoted [on the drawbar]" and "a scraper blade carried by said frame." The frame structure described by the specification is sufficiently shown by so much of Fig. 1 of the patent drawings as relates to the operative portion of the machine: The specification describes the frame element in question and its relation to the scraper blade as follows: "A rectangular frame, composed preferably of a forward channel bar 11, a rear channel bar 12, and end bars 13 connecting them. The rear bar 12 has a central pivotal connection with the drawbar 8 through a bolt 14. The forward channel bar has a series of holes 15 therein, and a pin 16 is adapted to fit into one of said holes and into a slot 17 provided in the drawbar 8. * ** Angle bars 18 are secured to the end bars 13, and 1 "5. In a grading machine, the combination with the drawbar, of a frame pivoted thereon, a scraper blade carried by said frame, bars pivoted at their forward ends, crank axles journaled in said bars and having carrying wheels, means for oscillating said crank axles, means connecting said bars with one another to hold them in parallel relation." "9. In a grading machine, a frame and a scraper blade carried thereby in combination with pivoted bars and crank axles journaled therein, carrying wheels for said crank axles, means connecting said bars with one another to insure their simultaneous lateral oscillation and means for oscillating said crank axles." braces 19 extend from these angle bars to bolts 20, which pass through the webs of channel bars 21 and form the pivots therefor on the frame and particularly on the rear bar 12 thereof. The scraper 22 is rigidly secured to the angle bars 18 and braces 23 extend from said scraper to the bar 12." In brief, the "frame" of the claims in suit, as described in the specification, is composed of front and rear bars connected by end bars, and as a unitary structure is directly and pivotally connected with the drawbar; the scraper blade is carried directly by this frame. A selfcontained frame and a scraper blade carried thereby are important and undisputed features of plaintiff's patent. Each of the 13 claims. contains them. Defendant's machine, as shown by reference to the cut in our former opinion (249 Fed. at page 59, 161 C. C. A. 116), lacks this self-contained frame feature, unless, as plaintiff contends here, the equivalent of that frame is found in the curved, partly D-shaped front-piece (attached to the drawbar), in connection with the scraper blade attached to the rear end of the curved front piece; the scraper blade thus closing the figure D formation. [2] Whatever might be said of the asserted equivalency, were the grader art, or even frames for supporting the scraper blade, new, such is not the case in either respect. The grader art was old and crowded when Wold entered the field, and it was old (and presumably necessary) to carry the blade by some kind of a frame. Indeed, the scraper blade of both Clemons and Mendenhall were carried "on a frame supported by rear and forward wheels." 249 Fed. 59, 161 C. C. A. 116. Whatever invention there is in Wold's frame rests in its general structure, method of connections, and blade-carrying function, neither of which are found in defendant's machine. In the latter the drawbar, by means of a bracket on the rear of the blade, is pivoted in practical substance directly to the blade, which is rigidly secured to the curved frame. The latter not only lacks, to a substantial degree, the special features of flexibility afforded by plaintiff's carrying frame, but does not itself alone carry the blades. The drawbar directly contributes as much to that labor, as does the curved front piece. Granting that defendant's curved front piece is the equivalent of the front and side bars of Wold's frame, it yet wholly lacks Wold's rear bar, unless defendant's scraper blade is the equivalent of that bar. A claim is not infringed if one of its elements is omitted without the substitution of an equivalent. Cimiotti Co. v. American Co., 198 U. S. 399, 410, 25 Sup. Ct. 697, 49 L. Ed. 1100; Union Paper Bag Co. v. Advance Bag Co. (C. C. A. 6) 194 Fed. 126, 138, 114 C. C. A. 204; Proudfit Co. v. Kalamazoo Co. (C. C. A. 6) 230 Fed. 120, 139, 144 C. C. A. 418. [3] In view of the prior art, defendant's scraper blade is not the equivalent of the rear bar of that frame. The blade cannot be made to do duty at one and the same time as the element carried and as a part of the carrying element. Defendant thus lacks this distinctive element of the claims in suit-the carrying of the scraper blade by the frame of the patent. "In an overcrowded art, where a broad generic invention is not possible, a defendant who omits altogether one element of a combination cannot be held as an infringer, even though he makes another element do the double work." Underwood Typewriter Co. v. Royal Typewriter Co. (C. C. A. 2) 224 Fed. 477, 479, 140 C. C. A. 163, 165. Defendant has, in our opinion, in substantial effect so constructed his device as to dispense with the necessity of the function of plaintiff's blade-carrying frame. The case in this respect is not without analogy to that considered by us in Detroit Showcase Co. v. Kawneer Mfg. Co., 250 Fed. 234, at page 238, 162 C. C. A. 370. The situation is not, in our opinion, analogous to that found in Bundy Mfg. Co. v. Detroit Time Register Co. (C. C. A. 6) 94 Fed. 524, 537, 36 C. C. A. 375. What we said by way of distinguishing that case from the situation' involved in Ohmer v. Ohmer, 238 Fed. 182, at page 193, 151 C. C. A. 258, applies here. In our opinion defendant does not infringe. We find it unnecessary to consider the Hanna patent. The decree of the District Court is affirmed. (259 Fed. 578) O'REILLY v. BENJAMIN HARRIS CO., Inc. (Circuit Court of Appeals, Second Circuit. January 15, 1919.) No. 159. PATENTS 328-INFRINGEMENT POLICE WHISTLE. Decree holding O'Reilly patent, No. 1,094,006, for a police whistle, not infringed affirmed. Appeal from the District Court of the United States for the Southern District of New York. Suit in equity by Joseph J. O'Reilly against the Benjamin Harris Company, Incorporated. Decree for defendant (259 Fed. 292), and complainant appeals. Affirmed. A. B. Malcomson, of New York City, for appellant. Munn, Anderson & Munn, of New York City (T. H. Anderson, of New York City, of counsel), for appellee. Before ROGERS, HOUGH, and MANTON, Circuit Judges. PER CURIAM. Decree affirmed. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (260 Fed. 1) PORTER v. UNITED STATES et al. (Circuit Court of Appeals, Eighth Circuit. August 19, 1919.) No. 5321. INDIANS 27(6)—EVIDENCE SUFFICIENT TO ESTABLISH IDENTITY OF ALLOTTEE. Evidence held to sustain a decree determining which of two members of the Creek Tribe of Indians, claiming the same name, was the allottee of a tract of land. Appeal from the District Court of the United States for the Eastern District of Oklahoma; Ralph E. Campbell, Judge. Suit by the United States and others against Nellie Porter, alias Nellie Deer, alias Lettie McGilbra. Decree for cross-complainants, and defendant appeals. Affirmed. Paul Pinson, of Tulsa, Okl., and Irwin Donovan, of Muskogee, Okl. (John J. Shea and Thomas F. Shea, both of Tulsa, Okl., on the brief), for appellant. James W. Cosgrove, of Muskogee, Okl. (S. M. Rutherford, of Muskogee, Okl., on the brief), for appellees, except the United States. Before HOOK and CARLAND, Circuit Judges, and YOUMANS, District Judge. YOUMANS, District Judge. The United States brought this suit to set aside two of three patents for as many allotments which it is alleged were made by mistake to the same Creek citizen under different names, when that citizen was entitled to but one allotment. The prayer of the bill was: "That Nellie Porter, Nellie Deer, and Lettie McGilbra, as described in complainant's bill, be decreed to be one and the same person; that the names of Nellie Deer and Lettie McGilbra, now appearing upon the approved rolls of the Creek Tribe of Indians, be stricken therefrom; that the certificates and For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes |