CHISHOLM, BOYD & WHITE CO. v. ANDERSON FOUNDRY & MACHINE WORKS et al., 123 F. 427

After the foregoing statement of facts, GROSSCUP, Circuit Judge, •delivered the opinion of the Court. We shall first deal with patent No. 429,296 and its tenth claim, that being the one which is infringed, according to the averments of the bill. The purpose of the mechanism described in this patent is to .bring about such a movement of the upper and lower plungers, that the upper plunger will come to a stop, while the lower plunger continues to move, thus exerting pressure from below upon the clay, the upper plunger acting only as a resistant.

It is said, that in this way, there is obtained greater uniformity in the density of the brick manufactured. Excepting the stop, whereby the upper plunger’s motion is arrested before the toggle governing the lower plunger’s movement is entirely straightened out, the mechanism bringing this about is admittedly old. In our judgment, the mechanism, including the stop, is substantially anticipated in Brewis patent No. 395,871. The only difference between the combinations is, that in appellants’ patent, the stop is placed on the table, while in the Brewis patent, it is inserted in the plunger.

In both cases the function of the stop is the same. Doubtless the transfer from the plunger to the table is attended with advantage, such as the prevention of mud clogs, but this is incidental merely, and does not seem to us to rise to the plane of patentable invention. It would have been obvious to any mechanic who already knew the advantage of getting pressure from below, and was seeking to get rid of the incidental disadvantage of the mud clogs. An effort is made to escape the Brewis patent as an anticipation on the score that appellants’ invention was conceived prior to the filing of the Brewis application.

This claim, to be made effective, must be proven with reasonable certainty. No such proof exists in the case. Taking appellants’ testimony on this point at its best, and it leaves us in grave doubt respecting the claim thus made. We come now to patent No. 455,374. The novelty here claimed is that it secures to the hopper, from which the clay is formed, the condition of being a floát. This is brought about by means of a telescoping mechanism, whereby the hopper is kept to its place laterally, while allowed to rise or fall vertically; and claim seventeen is designed to cover these mechanical means.

But appellee does not employ this telescoping mechanism. In appellees’ mechanism, the hopper—following the Andrus patent No. 286,892—is fastened to a side bar by means of a screw. True, appellants insist that in the Andrus mechanism the screw was intended to be kept closed, while in appellees’ mechanism the screw can be left-loose, whereby having motion through a slot, the hopper will obtain vertical motion without affecting its horizontal motion. But it is not shown to our satisfaction that appellees purposely, and as a part of the operation of their machines, leave the screw loose.

Nor would such fact, if true, constitute appellees’ mechanism an infringement of appellants’. The appellant has no patent on the mere fact that its hopper floats; its patent is confined to the mechanism that brings about or controls such float; and as we have seen, the mechanical means employed in the patent are,, in this respect, distinctly differentiated.

Respecting claim twenty-three of the same patent-covering mechanism that gives to the guides feeding the machine, an oscillating motion, vertical but not lateral, it is enough to say that this is clearly embodied in the previous patent to White not sued upon in this case. Respecting claim sixteen of patent No. 488,622—covering the use of a wood front in the feed box—the proof satisfies us that machines built previously under the Andrus patent of 1895, had such wood fronts.

Claims nineteen and twenty of the same patent are meant to cover the conception of concentrating into the supplementary machine— where the power is applied—all the bearings of the whole machine, rather than have such bearings divided between the supplementary and the main machine. The advantage is that it enables the machine to be taken apart for the purpose of transportation. This, at most, is mechanical design, and is in our judgment, anticipated in the Andrus invention. The decree of the Circuit Court is affirmed.