KING DRILL CO. et al. v. MULLEN et al., 82 F. 636

WOODS, Circuit Judge, after making tlie foregoing statement, delivered the opinion of the court. We have not been aided by brief or argument for the appellees. It appears from the testimony of one of the complainants that the patentees thought themselves “the first to get an automatic side adjustment.”.

The first claim of the patent was designed to cover that feature, but in view of the admission in the specification that the frames of cultivators and other like machines had been made with flexible side pieces and springs employed to hold the pieces outward, and in view of the prior art in evidence, consisting of the patents of Thomas and Mast, No. 55,742, W. T. Walker, No. 138,964, J. A. Barnett, No. 149,181, and W. H. and F. M. Mullen, No. 308,090, we deem it clear that patentable novelty is not shown in the combination either of the first or second claim.

The distinction asserted by the expert between the side pieces and springs of this patent and of prior machines of like construction, referred to in the specification, is hardly intelligible.

His position is that, according to the patent, the springs need no.t be of the particular construction shown, but need only be of such a nature that, when adjusted, they will hold the side frames or wings outwardly with more or less force, and that for this purpose the flat spring shown can be employed, or, as stated in the patent, spiral or other springs may be used; that the novelty of this part of the invention is in so mounting the side wings as to give them an adjustable support by which they can have a lateral swing under spring control; and that, while the claim specifies that the springs are"interposed between the wings and the main frame, whether so interposed or placed as shown in the construction of the defendants’ drill in a place above the wings, or in some other position, can make no difference if the springs employed be adapted to subserve the office contemplated in the patent.

This is equivalent to a denial of the conceded and proven fact of adjustable side pieces controlled or moved by springs in some of the earlier machines in the art, unless the springs of the earlier devices were too weak or too rigid to accomplish the purpose intended, — a proposition which, even in the absence of proof on the point, is not admissible, because it could have required no inventive power to substitute an efficient spring for one found to be defective either for lack or for excess of strength.

The corn plow of Barnett shows a combination substantially identical and designed for a like purpose with the combination described in the first of these claims; and it certainly could not have involved invention or discovery to put into the Thomas and Mast seed planter, in lieu of the devices there shown for moving the pivoted side wings, the springs either of the Barnett plow or of the Walker cultivator.

With such substitution, the Thomas and Mast planter would contain a complete exemplification of the first claim, as it does, also, of the telescopic spout, which alone distinguishes the second claim from the first. The decree below is reversed, with instruction to dismiss the bill.