the second movement does not commence until the first ends. An examination of the drawings of this patent, which are here shown, makes it plain that no mechanic merely skilled in the art, with this patent as a guide, would have ever constructed the Dain hay stacker.

It is to be observed that in this British patent the rope to which the power is applied is not attached to the mast 4, as in the Dain patent it is attached to 35 36, which the mast 4 is said to represent. Nor is it attached to the boom 21, which is said to correspond with 33 34 in the Dain patent. It passes down to the weight itself, and when the power is applied neither the mast 4 nor the boom 21 moves as do 35 36 and 33 34 in the Dain patent. They do not move until the weight has finished its vertical movement, and then the mast is forced against the stationary standard. It is also to be observed that Dain has no such construction as the element 18, in which the lower end of the boom 21 slides.

That the addition of the second lifting frame in the Dain patent was invention sufficiently appears. It is not true, as the defendant claims, that the second lifting frame was merely adding a second bend to the rope which Allen had bent once. It accomplished something more than a mere change in the line of force. The plaintiff correctly says in its brief:

"Obviously, if bends were all that was wanted, as many bends as might be desired could be secured by providing a corresponding number of arms rigidly

connected together and arranged to rotate about the same pivot like the spokes of a wheel, producing in effect a pulley or wheel on a large scale.

*

"In the Dain construction there are two levers, pivoted at separate points, and connected together at or near their upper ends in such manner that their relation to each other constantly changes as hoisting progresses. The power is first applied to that one of said levers which initially stands in a more nearly upright position, so that the power is applied thereto at a more favorable angle. At the same time the connection between the second lever and the carrying frame forms a favorable angle for applying lifting power to said frame. The movement of the two levers in hoisting changes their angular relation to each other, and to the line of pull, so that the favorable angle is maintained throughout the hoisting operation, with the result, as stated in the specification of the patent in suit, that the power required is more nearly uniform throughout the entire operation of raising the load, and at the same time, owing to the fact that the power is applied to the lifting lever at a greater angle than was theretofore practicable, the machine may be operated with less power."

Allen introduced the first movable lifting frame in 1885. After him came Locher, No. 349,804, September 28, 1886; Boland, No. 366,617, July 12, 1887; Smith, No. 424,030, March 25, 1890; Blake, No. 433,067, July 29, 1890; Ham, No. 451,045, April 28, 1891; Smith, No. 464,190, December 1, 1891; Bernard's first patent, No. 478,979, July 19, 1892; Bernard's second patent, No. 482,611, September 13, 1892; Blume, No. 486,751, November 22, 1892; and Allen, No. 497,160, May 9, 1893.

All these men were inventors, and were undoubtedly skilled in the art of designing and constructing hay stackers. The fact that no one of them, having before him the first Allen patent, thought of using two swinging lifting frames, is persuasive and satisfactory evidence that that would not occur to one skilled in the art.

The defendant assigns as error the fact that the master in his decision relied on the testimony of Duffield, after he had held that his evidence was incompetent. This testimony related to the commercial value and utility of the plaintiff's machine. To show that utility, it is not necessary to and we do not consider any of Duffield's testimony. The granting of the patent is prima facie evidence of such utility. This prima facie evidence is strengthened by the fact that the defendant itself has appropriated the device, and the further fact that one King also appropriated it, and in a suit brought by this plaintiff has been enjoined from using his infringing structure. We conclude therefore that claims 1, 2, 4, and 12 are valid.

The next question is: Are they infringed by the defendant's machine? There are two differences in the construction of the two hay stackers. Instead of using two bars 35 and 36 as his lifting frame, Vroom uses a single bar L. It is admitted, however, by the defendant that this is an immaterial difference.

The other difference is that the two lifting levers are not, as the defendant claims, connected at their upper ends. All the claims in suit indicate that the two lifting frames in the plaintiff's machine are connected at their upper ends.

As is seen by reference to the diagram in the Vroom patent, the roller 15 slides on the bar L as the rope is pulled and the hay fork raised. It reaches the top of the bar as the fork continues its ascent and remains there for a very considerable portion of the time in which the stacker is being operated, according to the plaintiff's expert, during the last one-third of the time.

The claim of the defendant is that the plaintiff is limited to the precise construction shown in the patent, and that any device which does not show the lifting frames connected at that part of their upper portions at which they appear to be connected in the diagrams accompanying the plaintiff's patent is not an infringement. This claim cannot be sustained.

There was no action taken in the Patent Office which limited Dain to a connection at the mathematical extremities of the two frames. Moreover, such a connection was not essential to the operation of his stacker.

What did he then mean when he said that the frames were connected at their upper ends? If the upper end means the top of the frame and nothing less, then rod 41 should have been in some way fastened to the tops of the extremities of the frames, so as to leave every part of the frame below it. That so impracticable a construction was never contemplated is indicated by the drawings which show rod 41 between the two bars and near the top.

If Vroom, with the same length of Dain's inclined frame 33 34, had made his lever L half an inch longer than Dain's vertical frame 35 36, and then attached the rod 41 half an inch below the top of the lever L, his construction would, without any doubt at all, have been considered a palpable evasion of Dain's patent. It is clear that the words "connected at their upper ends" do not mean at their mathematical extremities. If the attachment is so near the end that the machine gets all the benefit of Dain's invention, infringement is made out. That the defendant's structure does secure all the advantages of Dain's invention is made plain by the evidence.

[2] The fact that the claims in suit use the words "substantially as described" does not, under the circumstances of this case, limit the plaintiff to the exact construction shown in the diagrams and specification. United States v. Society, etc., 224 U. S. 309, 328, 32 Sup. Ct. 479, 56 L. Ed. 778; O. H. Jewell Filter Co. v. Jackson, 140 Fed. 340, 72 C. C. A. 304 (8th Cir.).

It is said by the defendant that Dain improved upon Allen's device, and that Vroom improved upon Allen's device. The fact is, however, that Vroom, knowing of Dain's device, as was admitted on the trial, improved not upon Allen's structure, but upon Dain's. That this improvement upon Dain's machine was itself patentable constitutes no defense to the charge of infringement of Dain's patent.

Plaintiff introduced evidence relating to claims 6, 7, and 8, but prior to the argument before the master withdrew these claims. Neither the master nor the court below passed upon them, and the defendant does not now ask this court to do so; but he says that they are broad

claims, that claims 1, 2, 4, and 12 are narrow ones, and therefore must be strictly limited. Claims 6, 7, and 8 are not, however, broad claims. They all include the element of an extensible carrier which element is not found in claims 1, 2, and 4.

[3] The defendant assigns as error the allowance by the court below of full costs to the plaintiff. He bases this assignment upon the contention that claims 6, 7, and 8 were eliminated, and that in view of the provisions of Revised Statutes, § 4922 (U. S. Comp. St. 1901, p. 3396), relating to disclaimers, the plaintiff is not entitled to costs. That section, however, has no application to this case, because there has been no adjudication with regard to claims 6, 7, and 8, and it does not yet appear that Dain was not the inventor of the devices described in those claims. The court below having allowed costs, this court upon affirming the decree on its merits, will not reverse it on the question of costs. Du Bois v. Kirk, 158 Ú. S. 58, 67, 15 Sup. Ct. 729, 39 L. Ed. 895.

The decree of the court below is affirmed.

(208 Fed. 559)

MONASH YOUNKER CO. v. NATIONAL STEAM SPECIALTY CO. (Circuit Court of Appeals, Seventh Circuit. April 15, 1913.)

No. 1,930.

PATENTS ($328*) — VALIDITY AND INFRINGEMENT
RADIATORS.

RELIEF-VALVE FOR STEAM

The Brissenden patent, No. 952,414, for an automatic relief-valve for steam radiators in which the proper adjustment of the parts is indicated by the escape of steam when the valve seat is displaced, in view of the prior art cannot be given a broad construction, but must be limited to the peculiar arrangement of the parts shown, and as so limited is not infringed by the device of the Leuthesser patent, No. 944,338, in which a stem indicates displacement, operating mechanically, without the aid of steam pressure.

Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois; Kenesaw M. Landis, Judge.

Suit in equity by the National Steam Specialty Company against the Monash Younker Company. Decree for complainant, and defendant appeals. Reversed.

Samuel W. Banning, of Chicago, Ill. (Thomas A. Banning, of Chicago, Ill., of counsel), for appellant.

Charles C. Bulkley, of Chicago, Ill., for appellee.

Before BAKER and KOHLSAAT, Circuit Judges, and CARPENTER, District Judge.

KOHLSAAT, Circuit Judge. The District Court held claims 1, 2, 5, 7, 13, 14, 15, 16, 17, and 18 of patent No. 952,414, granted to W. W. Brissenden on March 15, 1910, on application filed July 22, 1904,

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes 125 C.C.A.-36