CAVERLY v. DEERE et al., 66 F. 305

WOODS, Circuit Judge, after stating the case, delivered the opinion of the court. - Numerous errors Rave been assigned upon the opinion delivered in the circuit court. They are irrelevant and immaterial, except argumentatively. The opinion may be wrong and yet the finding and decree right. The question involved in the appeal is whether or not the court erred in finding and decreeing the bill to be without equity; and for the presentation of that question the first assignment of error alone is sufficient.

The suit was for the infringement of letters patent No. 303,116, issued August 5, 1884, to Sarah Caverly, assignee, for improvements in machines for rounding bent handles and other woodwork. There are four claims.

The first is for “a cutter head consisting of a cylinder with a groove in the center of its periphery, and recesses from either side, terminating in narrow openings on such groove, for the adjustment of the cutter knives.” In other claims the cutter head is made of two cylinders secured together, the openings in which are described as converging so as to form beds for the knives and spouts for the discharge of chips. In the third claim the knives are slotted and adjustable longitudinally, and in the fourth claim are so secured that the bevel on the cutting ends presents a flat surface.

We agree with the circuit court that there is nothing in any of these claims which had not been anticipated by earlier devices and patents. To use the language of the opinion below: “The Moline and Louisville culter heads were made with two disks; they had cutter knives inserted through the recesses extending from the outer face of each disk into the groove,' and forming beds for the cutters and spouts for the discharge of chips; the slotted knives were secured in the openings and adjusted longitudinally therein by set screws.

In other words, ah of the "elements of the complainant’s patent are found in these old working cutter heads of the Grand de Tour Plow Company, the Moline Plow Company, and the Wilder patent, and most of them date back much earlier than even the witnesses for the. complainant would carry the Caverly invention.” It is urged upon us that Die patent in suit,, when construed as it ought to be with reference to the drawings, shows the knives set at an angle of 45°, and that in this respect the device is novel and useful as compared with the prior art.

If it were shown to be true that a machine with knives set at a particular angle had distinct advantages over a machine with knives set at any other angle, the discovery and embodiment of the fact in a working machine ought, we suppose, to be deemed patentable. But nothing of the kind is shown here.

While it is argued from the drawings, and geometrically, that the angle of the knives in the patent is exactly 45°, it* is at the same time asserted, and is clearly true, that there is in the specification nothing showing that the inventor intended to limit the pitch of the knives to the precise number of degrees indicated by the drawings, but only to illustrate distinctly “such angularity as was deemed productive of the most perfect results.” This implies — and, if not admitted, the fact would be evident — that knives set at any angle, say between 40° and 50°, and perhaps within wider limits, will work as well, approximately, as if set at the exact angle of 45°.

It follows that there is no patenta-bility in that particular, even if it be conceded that the drawings of the patent are to be regarded as working plans, showing the particular angle stated, — a proposition which, in view of the fact that: the specification is silent on the subject, is not deemed (enable.

Every mechanic accustomed to the use of the chisel and the joiner’s plane is familiar with the principles upon which such knives work, and if, in a plane or in a cutter head, he should find a knife which stood at an angle of 80° scraping instead of cutting, as it is said the knives in some of the old machines did, he would be at no loss to apply the remedy.

It is, of course, true that certain geometrical propositions are applicable to knives in such a machine standing at the angle of 45° which would not be applicable if the angle were different, and, conversely, if the angle were different the geometrical propositions incident thereto would not be applicable to knives inclined at the first-named angle; but patentability does not follow in the one instance more than in the other.

It is to be observed, too, that, if the invention consists in the exact angle at which the knives stand, infringement cannot be established without proof that in the infringing machines they stand at that exact angle. The decree below should be affirmed, and it is so ordered.