BROWN MANUF'G CO. v. DEERE et al.; SAME v. DAVID BRADLEY MANUF'G CO., 61 F. 972

WOODS, Circuit Judge (after stating the facts). We quite agree with the court below that the first claim of the patent in suit is not for a combination of the pipe box described with other parts of a cultivator named in the claim or specification, but for the pipe box itself, as a single device, designed and adapted for use in the several ways specified. The contrary contention requires Hurt the word “adapted,” as used in the claim, be given a strained and unwarranted significance.

It is not even approximately synonymous, with “combinedand a substitution of the latter word would be inadmissible, unless the words “to co-operate” were omitted. If the word “arranged” were substituted, it would have the same meaning as “adapted,” unless, again, “to co-operate” were omitted.

We think it clear that the first claim of the patent is for “the pipe box with a projection,” which projection may be adapted to co-operate with a spring, or with a weight or with the draft, for the purpose of rocking the box either against or with the weight of the plows,—-one or both; and while, by the claim, the box has one projection, two illustrations, M and M', are given of projections which may be employed, and it is suggested in the specification that insiead of the flange, M', a counterweight may be employed, or a sleeve or pulley may be arranged on the pipe box with a chain to produce the same effect.

It is easy to see, too, that weights, instead of the spring, might be connected with the arm, M, so as to rock the box in either dii'ection. Indeed, that arm might be lengthened, its upper end enlarged so as to constitute a weight, and a joint introduced near the box, whereby the weight could be turned forward or backward to move the box one way or the other, as desired.

The specification of the patent was drawn, of course, to describe the elements and functions of the elements of all of the claims; and, when they are considered together, it is clear enough that the first claim was designed to be broadest, covering simply the pipe box with a projection, which might be in any of the forms illustrated or suggested; the third to be less broad, covering the same pipe box, except that it should have “longitudinal ribs, combined with the stirrup, O, having corresponding grooves,” etc.; and the second to be yet more narrow, covering “the combination, with the crank-axle and the gangs or plows, of the pipe box having the arm, M, the spring, N, attached to the main frame, the head, I, and the stirrup, Gr, or its equivalent,” etc.

The

interpretation which we are asked to put upon the first claim would jnake it essentially the same as the second.

The proposition of the brief is “that, for the purpose of the present case, the claim is to be construed under the law as a claim for a combination in a corn cultivator of a pipe box, a projection thereon, a spring hitched to such projection at its free end, and one or more ‘rear cultivators or plows’ also pivoted to the pipe box; these being so connected and combined that the spring, acting through such • projection, shall co-operate with the operator in the manipulation of the beams by hand.” It is only under the emergencies and “for the purpose of the present case” that such a combination could be read into the claim; but, if so interpreted, we should still be compelled to regard the claim as void of invention, or at most subject to a construction which would be too narrow to support the charge of infringement.

It is not contented that the supposed combination contains any new element, or is made up of parts which had not been employed together in earlier cultivators to perform the same or similar individual functions.

A new combined result is insisted upon, and one novel feature of construction is asserted, which, it is said, consists simply in changing “the place of hitch” for the spring from the plow beam, where it had theretofore been, to a projection made for the purpose on the pipe box; thereby accomplishing the alleged new result of avoiding the tendency of the spring, when attached in the old way, to resist lateral movements of the plow. “The problem,” we are told, “was to hitch the spring so that it would aid the operator in 'the vertical movement of the beam without interfering with the sidewise movement;” and it is asserted that Brown’s invention consisted in the discovery that the resistance to sidewise movements could be avoided by hitching the spring in front of the vertical bolt upon which the plow beam turns horizontally.

But in the cultivators made by the appellees the spring was hitched to an extension, either of the bolt itself, or of the upper arm of the stirrup through which the bolt passed; and it became necessary, in order to maintain a semblance of infringement, to enlarge still further the scope of the claim. Accordingly, it is insisted that, properly construed, the invention includes ahy place of hitching at or forward of the vertical pivot boft.

But this proposition, manifestly, is not completely applicable when a weight is used in lieu of a spring; and hence it became important, if not imperative, to say, as it has been said, that while Brown thought that for the purposes of the invention “a weight was practically, as well as theoretically, the equivalent of a spring,” he was mistaken in that particular.

But that this assertion was unwarranted is shown by the suggestion already made, that, instead of the spring, a weight might be attached to the arm, M, without change in its construction, so as to perform the exact function of the spring, or, to accomplish the same effect, the arm itself might be lengthened, enlarged at its outer end to produce the requisite weight, and jointed near the pipe box. This last construction would be substantially identical with tbe weight and lever shown in the English patent to Smith, No. 1,582, for improvement in horse rakes.

Brown therefore made no mechanical mistake in treating a weight, for his purpose, as an equivalent for a spring; and, if there was mistake at all, it was because thereby •tbe fact of anticipation by the English patent was made more evident. The attempt to distinguish between the pipe box of this patent, when moved by a lever and weight, and the pipe box of tlie Smith patent, with its lever and weight;* because one is used in a cultivator, and the other in a horse rake, is necessarily unsuccessful.

A more complete analogy in construction and function between things not identical it would be difficult readily to conceive. .But following the line of the appellant’s argument, and leaving out of view, for the purposes of the case, the weights and draft mentioned in the claim, and the sleeves and pulleys suggested in the specification, and considering the spring only as a fit means for performing its allotted function, our conclusion cannot be different.

While it is plainly true that the spring, when hitched to the plow beam, will tend to resist a lateral movement of the plow, the extent of the resistance, it is equally clear, will be proportionate to the distance of the point of attachment from the bolt upon which the beam is pivoted.

To reduce the resistance, it would be only necessary, in a given case, as any intelligent person could see, to reduce that distance; and what the appellees did was to attach the spring to the bolt itself, lengthened out in order to prevent loss -of power, and not, in the manner of Brown’s patent, to a projection on the pipe box provided for tbe purpose.

Once springs had been Introduced into cultivators for the purpose of aiding the operator to move the plows vertically, if it can be said to have ever been a question, outside of the minds of solicitors and expert theorists, how the resistance of the springs to lateral movements could be, avoided, it was a problem whose solution was always too manifestly easy to be called invention or discovery. It was a matter of tbe simplest reasoning and observation.

It was admitted at the argument that, so long as the process consisted in diminishing the resistance by moving the place of the spring’s attachment on the plow beam towards the bolt, it involved no invention; but it is claimed that Brown made an original discovery when he perceived that by passing tbe bolt, and maiding the attachment in front, the resistance was entirely eliminated.

The fact is evident, but no more so to men of ordina ry intelligence now than it was before Brown applied for bis patent; and consequently there could be nothing patentable to Brown in the discovery, if his intelligence is to be discredited by the assumption that the perception then first dawned upon him. Practically, the supposed problem would be solved jxxst as well by connecting the spring with the beam at a point immediately behind the pivot bolt, within a distance of three, six, or perhaps even twelve, inches.

In his patent of 1872, Brown had shown another mode of accomplishing the result by pivoting the fixed end of the spring like the pivoted pai*t of a swinging, bracket. If the claim in question can be regarded as containing invention at all, it must be limited to the particular forms of construction of the pipe box described; and, that done, infringement is not proved. The decree below, in each case, should be affirmed, and it is so ordered.