the complainant's device, and in the art of riveting it is certainly a new and useful result to produce a device which will accomplish several times as much work in a given time as any mechanism before in use, and requiring less expensive labor to operate it; and the adaptation of old elements to this new use required, in my judgment, the exercise of the inventive faculty. In Willcox & Gibbs Sewing Mach. Co. v. Merrow Mach. Co., 35 C. C. A. 269, 93 Fed. 206, the patents declared upon were for devices in sewing machines. The circuit court there found from the proofs. in the case that prior to complainant's machine the practical work of such machines (over seam machines) was not more than 1,000 stitches per minute, while by complainant's machine more than 2,000 stitches could be made. The circuit court of appeals for the Second circu commenting upon these proofs, said, at page 272, 35 C. C. A., and page 209, 93 Fed.: "When the increase of speed is so great as it appears to be in this instance, and that, too, in an art where increase of speed (efficiency being preserved) is of such practical importance, we are disposed to consider the changes in parts and arrangement of parts as showing meritorious invention." A new combination of old elements by which an old result is obtained in a more facile, economical, and efficient way may be protected by patent. Thomson v. Bank, 3 C. C. A. 518, 53 Fed. 250, 252; National Hollow Brake Beam Co. v. Interchangeable Brake Beam Co., 45 C. C. A. 544, 106 Fed. 693, 707; Kinloch Tel. Co. v. Western Electric Co., 51 C. C. A. 369, 113 Fed. 659, 665; Seymour v. Osborne, II Wall. 516, 542, 20 L. Ed. 33; Gould v. Rees, 15 Wall. 187, 189, 21 L. Ed. 39. The claim of anticipation is based upon prior patents, and is met by the objection that the inventions approaching more nearly to the device described in the claims of the patent involved in this suit relate to a different art. For example, the patent granted to Daniel O'Neil, dated February 9, 1895, numbered 534,572, is for an apparatus for caulking joints of pipe and mains, and has no relation to the art of pipe-line riveting, the invention now under consideration. The patents introduced relating to pipe riveting relate also to a different method of practicing the art. "A machine or combination which is not designed by its maker, nor actually used, nor apparently adapted to perform the functions of a patented machine or combination, but which is discovered in a remote art, and was used under radically different conditions to perform another function, neither anticipates nor limits the scope of the patent." Ansonia Brass & Copper Co. v. Electrical Supply Co., 144 Ü. S. 11, 18, 12 Sup. Ct. 601, 36 L. Ed. 327; Topliff v. Topliff, 145 U. S. 166, 12 Sup. Ct. 825, 36 L. Ed. 658; Potts & Co. v. Creager, 155 U. S. 597, 608, 15 Sup. Ct. 194, 39 L. Ed. 275; Westinghouse Air-Brake Co. v. New York Air-Brake Co. (C. C.) 59 Fed. 27.5 581, 590. Under these authorities, it is clear that the complainant's device amounts to invention, and is entitled to the protection of the law. With respect to the defense that the defendants have not used the combination, it is contended by the complainant that the device in use by the defendants infringes claims 5 and 6 of his patent. Those claims read as follows: "(5) The combination with a pipe-riveter of an annular frame composed of Indepedent members, each member of which comprises a series of sections united together, and of a tool-holding block secured to and carried by said frame, said block adapted to be moved over the holes to be riveted so as to place the tool carried thereby in vertical alignment therewith. "(6) In a holding device for use in connection with riveting the circumferential seam of pipe sections, the combination with the rigid annular frame, of devices for attaching the same to the pipe to be riveted, of a tool-holding block secured on and carried by the frame, said block adapted to be moved around the pipe seam, and of a tool-supporter located inside the pipe." As it is not a particular principle in mechanics or the discovery of new elements that comprises the invention herein, but rather the arrangement of old elements, whereby means is provided for effecting a much more useful result than before produced in the same line of work, an infringing device must necessarily contain the same arrangement of parts, or so nearly the same, as to be practically identical in operation and result with the original device. A safe rule for guidance in such cases is that a device which would anticipate if earlier, infringes if later. The device used by the defendants, which is charged to infringe that of the complainant, is illustrated by the following drawing: This drawing shows an annular frame, consisting of two members, B B', which lie one on each side of the circumferential line of rivet holes. These members are independent, and composed of independent sections. They are united by cross-plates, B2, and by the tool-holding block, C, and when so united form a rigid frame. The tool-holding block is secured to the annular frame, and carried by it around the pipe, thereby enabling the tool-holding block to be placed in vertical alignment with the holes to be riveted, successively. There also appears a tool-supporter located inside the pipe. All the elements of claims 5 and 6 of complainant's patent are thus present, and in practically the same arrangement for operation, except that the illustration does not show any devices for attaching the annular frame to the pipe to be riveted. From the testimony, however, it appears that the hinge opposite the take-hold or holding-on device, together with the bolts in the tool-holding block, are used for attaching the machine to the pipe. It appears to the court that the defendants' device is not only functionally the same as that of the complainant, but that it reaches the result by substantially the same or similar means, and, as the invention of the complainant is contained in the means devised for operating the riveting tools, the use of such means by others is infringement. Westinghouse v. Boyden Power-Brake Co., 170 U. S. 537, 569, 18 Sup. Ct. 707, 42 L. Ed. 1136. For the reasons here stated, let decree be entered in favor of the complainant. VICTOR TALKING MACH. CO. et al. v. THE FAIR. (Circuit Court, N. D. Illinois, N. D. November 15, 1902.) 1. PATENTS-SUIT FOR INFRINGEMENT-EFFECT OF ABSOLUTE SALE OF PATENTED ARTICLE. The manufacturer of a patented article, who makes an absolute sale thereof to a jobber, without reservation or condition, so far as relates to its sale by the jobber, cannot, by a notice placed thereon, impose restrictions upon its sale to the public by a retail dealer, so as to render him and all users subject to suit for infringement of the patent in case it is sold for less than a fixed price. If he has any remedy for the violation of such conditions, it is upon the alleged contract, and not by a suit in a federal court for infringement. In Equity. Suit for infringement of patent. On demurrer to bill. KOHLSAAT, District Judge. On or about April 18, 1902, complainant the Victor Talking Machine Company sold one of its patented talking machines, numbered 23,157, to a jobber. The jobber took the machine subject to the legal effect of certain conditions, to wit, those contained in a certain printed notice fastened upon said machine, which reads as follows: "This machine, which is registered on our books, No. 23,157, is licensed by us for sale and use only when sold to the public at a price not less than $25. No license is granted to use this machine when sold at a less price. Any sale or use of this machine when sold in violation of this condition will 118 F.-39 be considered as an infringement of our United States patent under which this machine and records used in connection therewith are constructed, and all parties so selling or using this machine contrary to the terms of this license will be treated as infringers of said patents, and will render themselves liable to suit and damages. This license is good only so long as this label and the above-noted registered number remain upon the machine, and erasures or removals of this label will be construed as a violation of the license. A purchase is an acceptance of these conditions. All rights revert to the undersigned in the event of any violation. "Victor Talking Machine Co. "March 1st, 1902." Of this notice the jobber was advised. The jobber sold the same to the defendant herein, who took the same charged with such notice. The defendant subsequently advertised and sold said machine for $18, without any authority from complainant so to do, and, it is alleged, in violation of the terms and conditions of the said requirement. Complainants charge that the transaction amounted simply to a license upon condition, viz., a limited license, and not to an absolute sale, and that, by reason of the sale of said machine at less than $25, defendant became an infringer. On the other hand, the defendant insists that the sale, as originally made, was an absolute sale of the machine, and that, if the complainant has any remedy, it grows out of the contract. The suit is for infringement of complainant's pat ent. In support of its right to maintain such a proceeding, complainant cites Bement v. Harrow Co., 186 U. S. 70, 22 Sup. Ct. 747, 46 L. Ed. which was a case taken by writ of error to the supreme court. It was brought originally in the courts of New York, and, of course, could not have involved any question of infringement of a patent. Justice Peckham, speaking for the court, said that the only federal question raised in the record was as to the so-called Sherman act. It was in fact a suit on the contract of license which the New York court of appeals took jurisdiction of, and which was affirmed by the supreme court. Moreover, that case grew out of a license to manufacture and sell the patented articles in manufacturing and selling harrows, and no attempt was thereby made to bind purchasers from the licensee. Complainant also cites Heaton-Peninsular Button Fastener Co. v. Eureka Specialty Co., 25 C. C. A. 267, 77 Fed. 288, 35 L. R. A. 728, decided by the circuit court of appeals for the Sixth circuit. In that case the facts were briefly as follows, viz.: Complainant sold a patented machine for fastening buttons to shoes. Affixed to the machine was a metal plate inscribed: "Condition of Sale. "This machine is sold and purchased to use only with fasteners made by the Peninsular Novelty Company, to whom the title to said machine immediately reverts upon violation of this contract of sale." The defendant, the manufacturer of rival fasteners, was held to be a contributory infringer. The court held that only a limited. right to the use of the machine was granted, i. e., in connection with complainant's fasteners. This case carries the law very far, but it is decided upon circumstances which do not exist in the case at bar. The supreme court, in Bement v. Harrow Co., quotes from this opinion with approval an extract bearing on the general control a patentee has over his patent. No reference is made to the matter decided in that case, so that the decision of the court of appeals cannot be held to have been approved by the supreme court as to the point before us. In the case of Phonograph Co. v. Kaufmann (C. C.) 105 Fed. 960, defendant was held to the terms of an agreement made by a dummy for him. The sale was a fraud upon the complainant, and the district judge entertained a bill for infringement. The published opinion of the learned judge does not recite the terms of the so-called jobber's agreement. In the absence of this, I am unable to say how far that case bears upon the one at bar. In the case of Phonograph Co. v. Pike (C. C.) 116 Fed. 863, the complainant sold the machines to a jobber, requiring him to make no sales to dealers who would not sign an agreement governing the sale of the machines, or to those on the suspended list of manufacturers. The jobber sold to defendant without taking such agreement from him. The court held defendant to be an infringer by reason of the jobber's violation of the agreement, and consequent annulment of the license. These latter cases are those nearest in point for the complainant. Whether or not they correctly express the law in those cases need not be discussed here. They do not apply to the facts of the present case. In the case of Wilson v. Sandford, 10 How. 99, 13 L. Ed. 344, defendant was licensed to use a certain patented machine on payment of $1,400,-$250 in cash, and the balance in installments, for which notes were taken,-"and if said notes, or either of them, be not punctually paid, *** then all and singular the rights hereby granted are to revert to the said Wilson, who shall be reinvested in the same manner as if this license had not been made." Default was made, and a bill filed to declare a forfeiture and for injunction. The court held the remedy to be upon the contract, and not cognizable in the federal court, as affecting a patent. In this connection the language of the supreme court in Keeler v. Folding-Bed Co., 157 U.. S., at page 666, 15 Sup. Ct., at page 741, and 39 L. Ed. 848, is sig nificant : "Whether a patentee may protect himself and his assigns by special contracts brought home to the purchasers is not a question before us, and upon which we express no opinion. It is, however, obvious that such a question would arise as a question of contract, and not as one under the inherent meaning and effect of the patent laws." The court was then discussing the emancipation of an article from subjection of the patent covering the same. There can be no doubt that a patentee can convey the whole or part of a patent or a patented article. But can he make a completed sale of a completed article, so that the title vests absolutely in the purchaser, and afterward become reinvested with the title to that specific article? The notice, by its terms, binds only the person who sells to the public and the purchaser at such sale. The jobber took an absolute title. There was no limitation upon him as to price or |