Appeal from the Circuit Court of the United States for the Eastern District of New York.

This is an appeal from an order granting a preliminary injunction restraining the appellant from infringing the eighth claim of letters patent No. 383,258, granted to John W. Sutton, May 22, 1888, for a machine for plucking furs.

Arthur v. Briesen, for appellant.

Louis C. Raegener, for appellees.

Before WALLACE, Circuit Judge, and COXE and HAZEL, District Judges.

COXE, District Judge. We are constrained to hold that the machine which is the real subject of this controversy and to which the testimony of the experts on both sides is confined, does not infringe the eighth claim of the Sutton patent. This conclusion is based principally upon the ground that the machine does not contain the last two elements of the combination. It has no rotary brush or anything that can be called an equivalent for such a brush, unless the doctrine of equivalents is stretched beyond all reasonable limits. In place of a rotary brush the appellant employs a stationary rake or comb, composed of two rows of teeth made of fine stiff wire one and one-fourth of an inch in length and arranged so close together that there is practically no space between them. In view of the explicit statements of the specification attributing to the action of the rotary brush the essential and novel features of the invention, and in view of the express limitation of the claim to such a brush, it seems clear that the defense of noninfringement must prevail.

The appellant does not use a brush of any kind, much less a rotary brush. He uses a fixed metallic comb which cannot revolve on its axis, for it has no axis on which to turn; in this sense, therefore, his comb is immovable. That the machine is able to unhair pelts is immaterial. The appellees cannot include such a machine in a claim for a combination two elements of which relate explicitly to a rotary separating brush.

The order is reversed.

(115 Fed. 511.)

GALVIN v. CITY OF GRAND RAPIDS.

(Circuit Court of Appeals, Sixth Circuit. April 8, 1902.)

1. PATENTS-INVENTION-IMPROVER.

No. 967.

An improvement of a patented combination, which consists merely in carrying forward the old idea by a mechanical change in the form of one of the elements so as to produce a better result, but without changing the mode of operation, does not amount to patentable invention.

2. SAME-IMPROVEMENT IN VALVES.

The Lynch patent, No. 392,961, for a valve embodying an improvement on the valve of the Galvin patent, No. 283,479, which consists merely in

changing the form of the wedges employed to close the disks, is vold for lack of invention, the improvement being one involving only mechanical skill.

Appeal from the Circuit Court of the United States for the Western District of Michigan.

This was an appeal from a decree adjudging invalid for lack of patentable invention letters patent No. 392,961 for a valve, issued to Charles Lynch, November 13, 1888.

Franklin L. Lord and T. E. Tarsney, for appellant.

R. A. Parker, for appellee.

Before LURTON and DAY, Circuit Judges, and COCHRAN, District Judge.

DAY, Circuit Judge. This action seeks an injunction and accounting because of alleged infringement of letters patent of the United States No. 392,961, granted November 13, 1888, to James Galvin, assignee of Charles Lynch. The patent purports to be for an improvement upon the valves covered by letters patent of the United States issued to T. and J. Galvin for a valve. To understand Lynch's improvement, it is necessary to examine the Galvin patent. The Galvin valve is described by the inventors as consisting primarily of a novel arrangement of wedges acting in a plane parallel with the faces of the gate, and serving to force the latter to their seats. The drawings accompanying this patent serve to show the construction.

In the accompanying drawings, Fig. 1 represents a longitudinal vertical section of a valve constructed in accordance with this invention; Fig. 2, a vertical transverse section of the same; Fig. 3, a perspective view, showing the working parts of the valve, one of the disks being removed; Fig. 4, a horizontal longitudinal section through the body of the valve; Fig. 5, a sectional view, showing certain details, and in which one disk only is employed; Fig. 6, a view of one of the wedges detached.

The construction of this valve and its method of operation is described by the complainant's expert as follows:

"The valve comprises a casing of the usual substantially T-shape form; the cross of the T forming the waterway, and the stem the chamber in which the gate is withdrawn in the open position of the valve. This chamber is provided with a cap in which is swiveled the operating stem of the valve, the latter being provided with a collar engaging with shoulders in the cap, whereby endwise movement of the stem is prevented. The inwardly projecting movement of the stem is screw threaded, and engages with a correspondingly screw-threaded aperture formed in a head or nut, carrying the disks of the valve. This head or nut is provided with two pairs of oppositely projecting arms or lugs, arranged, respectively, in planes at right angles to each other, one pair of thread lugs being employed for connecting the valve disks, which latter are provided with elongated apertures, formed in upwardly extending portions thereof, and through which said lugs project,—the other pair of lugs are provided with inwardly extending portions,-forming supports for a pair of swinging wedges arranged between the inner faces of said disks. The wedges are so tapered as to have their larger diameters arranged outward, and the disks are provided with oppositely tapered bearing faces. The valve casing is provided · on its sides with cams or inclines against which said wedges would be forced in the inward movement of the head, the arrangement being such that when, by the turning of the stem, the head, together with the disks and wedges carried thereby, is forced inward or across the path of the waterway, said wedges will strike against the cams on the side of the casing, which will force the wedges together or towards each other, and will thereby cause the spreading apart of the disks. The proportion of the parts is such that the gate has nearly completed its inward movement before the wedges come in contact with said cams on the casing, and in the remainder of said inward movement the operation of said cams and the spreading of the disks will be accomplished. In order that it may not be necessary for said disks to move or slide upon their seats during the operation of the wedges, the elongated slots in the upward extensions of the disks, before referred to, are provided, whereby, after said disks have come into frictional contact with the seat faces, they may remain stationary during the further movement of the head in operation of the wedges."

The ob

It is claimed that this construction was defective in operation in the fact that when the valve is placed horizontally the upper wedge has a tendency to fall by gravitation between the disks before the same were in place, thereby causing the disks to separate prematurely, and before they were in full position across the waterway. ject of the Lynch patent is to remedy this defect in the Galvin valve, and he states the object of his invention to be an improvement upon that patent, and to consist of a novel form or construction of the wedges for the purpose of preventing them from falling down from gravity. And, he says, "in all particulars except the form and proportion of the wedges, the valve may be of the same construction as set forth in the patent above referred to; but instead of making the

wedges as shown in said patent their inner face is filled out and made straight to form bearing surfaces to rest upon the inner edge of the screw stem, and prevent the wedges approaching each other, except when the nut or yoke passes sufficiently far down upon the screw to carry the wedges clear of its end, which will occur only at the time the valve disks begin to bear upon the stops which arrest their action." This is the full scope of the discovery and alleged invention of Lynch. It is accomplished by so widening the wedges or providing them with inward projections that they will bear upon the valve stem so long as that is between them, and only begin to spread the disks when the stem is withdrawn, which occurs just as the disks are in place and ready for the wedging process.

In the accompanying drawings, Fig. I is a longitudinal sectional view of a valve embodying the improvement; Figs. 2 and 3, transverse sections of the same, the former showing the valve closed and the latter showing it partly open; and Figs. 4 and 5, perspective views of one of the wedges.

The Lynch patent, which is illustrated by the accompanying drawings, has two claims, which are as follows:

"(1) In combination with a shell or casing, a screw stem swiveled therein, a nut or yoke threaded to receive said stem, disks carried by said yoke, and wedges also carried by said yoke and located between the disks, said wedges having their inner or opposing faces extended inward to bear against