An established royalty, to afford any measure of damages, must be one which has been adopt-original application, in order that in a new one ed at the time of the trespass.

Smith v. Goodyear D. V. Co. 93 U. S. 500 (23: 956); Godfrey v. Eames, 68 U. S. 1 Wall. 317 (17:684); Singer v. Braunsdorf, 7 Blatchf. 521; Bell v. Daniels, 1 Fish. Pat. Cas. 377; Howe v. Newton, 2 Fish. Pat. Cas. 532; Blandy v. Griffith, 3 Fish. Pat. Cas. 616; Jones v. Sewall, 6 After Judges Drummond and Dyer had anFish. Pat. Cas. 364; Goodyear D. V. Co. v. nounced their decision in favor of the comWillis, 7 Pat. Off. Gaz. 45; Henry v. Frances-plainant, March 13, 1880, the defendants filed town Soap-Stone Stove Co. 2 Bann. & Ard. 223; a petition for a rehearing. Birdsell v. McDonald, 6 Pat. Off. Gaz. 682; Case v. Hastings, 7 Pat. Off. Gaz. 558; Ex parte Howes, Dec. Com. Pat. (1872) 42.

In the Dolph patent it is difficult to find any mechanism which was intended to secure the peculiar motions which is in the patent to Gra-1 ham.

Pomeroy v. State Bank of Indiana, 68 U. S. Wall. 597 (17:640): Henderson v. Moore, 9_U. S. 5 Cranch, 11 (3:22); Alexandria Marine Ins. Graham v. Gammon, 3 Bann. & Ard. 10. Co. v. Young, 9 U. S. 5 Cranch, 187 (3:74); The Aultman patents, the last of which was McLanahan v. Universal Ins. Co. 26 U. S. 1 a reissue, do not anticipate the Graham inven- Pet. 183 (7: 98); U. S. v. Buford, 28 U. S. 3 Pet. tion, because they do not provide for any rock-32 (7:585); Barr v. Gratz, 17 U. S. 4 Wheat. 213 ing motion. (4:553); Blunt v. Smith, 20 U. S. 7 Wheat. 248 (5:446); Brown v. Clarke, 45 U. S.'4 How. 4 (11: 850).

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There being no established patent or license fee in the case, in order to get a fair measure of damages, or even an approximation to it, general evidence must necessarily be resorted

to.

Suffolk Mfg. Co. v. Hayden, 70 U. S. 3 Wall. 320 (18:78).

He is the first inventor in the sense of the Act, and entitled to a patent for his invention, who has first perfected and adapted the same to use; and until the invention is so perfected and adapted to use, it is not patentable.

Reed v. Cutter,1 Story, 590; 2 Robb, Pat. Cas. 90; White v. Allen, 2 Fish. Pat. Cas. 446; Roberts v. Reed Torpedo Co. 3 Fish. Pat. Cas. 631; Howe v. Underwood, 1 Fish. Pat. Cas. 166; Eliz abeth v. Nicholson Pavement Co. 97 U. S. 134 (24: 1004).

Wooster v. Simonson, 16 Fed. Rep. 680; Nat. | interlocutory decree, holding the patent to be Car Brake Shoe Co. v. Terre Haute Car & Mfg. valid as regarded its first and second claims, deCo. 19 Fed. Rep. 517. creeing that the defendants had infringed those claims, awarding a recovery of profits to the plaintiff from the 12th of August, 1870, the date of the assignment of the entire patent by the patentee to the plaintiff, and referring it to a master to take an account of profits and damages. On the 21st of July, 1884, the master made a report awarding a sum of money in favor of the plaintiff to which both parties filed exceptions. On a bearing the court sustained some of the defendants' exceptions and overruled all others, and rendered a money decree in favor of the plaintiff. Both parties prayed appeals to this court, but the plaintiff did not perfect his appeal. Since the record was filed in this court, the plaintiff has died, and his administrator, Peter Whitmer, has been substituted in his place as appellee. Only claims 1 and 2 of the patent are involved. The specification states, among other things, that one object of the improvements which constitute the invention set forth in the patent, is to obtain a greater capacity of movement in a floating finger beam, while retaining its connection with a gearing carriage that is drawn forward by a stiff tongue; that, to that end, the first of the improvements of the patentec "consists of the combination of the finger beam with the gearing carriage by means of a vibratable link extending crosswise to the line of draft, a draft rod extending parallel with the line of draft, and two swivel joints, the one for the vibratable link, and the other for the draft rod, so that the finger beam can rise and fall at either end, and rock forward or backward independently of the gearing carriage, while maintaining its connection with it;" and that his "next improvement consists of the combination of the finger beam, gearing carriage, vibratable link, draft rod, and swivel joints, with an arm connected with the finger beam, to enable it to be rocked for the purpose of setting its guard fingers at any desirable inclination to a horizontal line."

His acts are to be construed liberally; he is not to be estopped by licensing a few persons to use his invention to ascertain its utility, or by any such acts of peculiar indulgence and use as may fairly consist with the clear intention to hold the exclusive privilege.

Jennings v. Pierce, 15 Blatchf. 42, 3 Bann. & Ard. 365; Innis v. Oil City Boiler Works, 22 Fed. Rep. 780; Campbell v. N. Y. 9 Fed. Rep. 503; Elizabeth v. Nicholson Pavement Co. 97 U. S. 126 (24:1000); Mellus v. Silsbee, 4 Mason, 108; Robb, Pat. Cas. 509; Draper v. Wattles, 3 Bann. & Ard. 620, 621.

The mere fact that a new article is shown in the drawings of a patent for a machine would not of itself be an abandonment of the new article, which would properly be the subject of a different patent, until the statutory forfeiture of use for two years had been incurred.

Hatch v. Moffitt, 15 Fed. Rep. 252, 255; Suffolk Mfg. Co. v. Hayden, 70 U. S. 3 Wall. 315 (18:76); Wilson v. Cubley, 26 Fed. Rep. 157; Vt. Farm Machine Co. v. Marble, 19 Fed. Rep. 307, 20 Fed. Rep. 117; Graham v. McCormick, 11 Fed. Rep. 859; Graham v. Geneva Lake Crawford Mfg. Co. Id. 138; McMillan v. Rees, 1 Fed. Rep. 722; Cahn v. Wong Town On, 19 Fed. Rep. 424; Collender v. Griffith, 18 Blatchf. 110, 2 Fed. Rep. 206; Eastern Paper Bag Co. v. Standard Paper Bag Co. 30 Fed. Rep. 65.

Mr. Justice Blatchford delivered the opinion of the court:

The specification further says: "My improvements may be embodied in a machine having the finger beam arranged in advance of the axial line of the shaft or arbor of the driving wheel, or arranged in the rear of that axial line. In the former case, the vibratable link that connects the finger beam with the gearing carriage will be arranged in advance of the driving wheel, and in the latter case in the rear of the driving wheel. In the former case, also, the rod hereinbefore called a 'draft rod' (because the strain to which it is subjected is a pulling strain) becomes a pushing or thrust rod, and connects the inner end of the finger beam with the rear of the gearing carriage. In the former case, the radius bar for the reel and raking platform connects with the rear end of the gearing carriage, and in the latter case with its front end. I prefer to construct a harvesting machine with the finger beam in the rear of the line of the axle of the driving wheel, and, as a description of such a machine, perfected by The defenses set up in the answer were want my improvements, will enable them to be fully of novelty and noninfringement. After issue understood, all of my improvements are emjoined, proofs were taken on both sides, and bodied in the harvesting machine of that deon the 24th of April, 1882, the court made anscription which is represented in the accom

This is a suit in equity, brought in the Circuit Court of the United States for the Northern District of Illinois, by Hugh Graham against Cyrus H. McCormick, Leander J. McCormick, and Robert H. McCormick, on the 8th of June, 1877, founded or the alleged in fringement of letters patent No. 74,312, granted to Alvaro B. Graham, February 11, 1868, for an "improvement in harvesters." In the course of the suit the defendant Cyrus H. McCormick having died, his executor, Cyrus H. Mc Cormick, and his executrix, Nettie Fowler Mc Cormick, were substituted as defendants in his stead.

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panying drawings, and which is an illustration | arm, 7, whose upper end is connected by a rod
of the best mode which I have thus far devised
of embodying them in a working machine."
There are twelve figures of drawings. The
specification states that the machine is what is
commonly called a "combined machine;" and
is adapted to reaping and mowing; that, when
used for the former purpose, it is arranged as
represented in figures 1 to 6; that, when used
for the latter purpose, certain of its parts are
removed, as thereinafter stated, and a grass
divider is substituted for the grain divider, at
the outer end of the finger beam; and that the
gearing which imparts motion to the sickle and
reel is mounted upon a carriage, A, which is
supported by two running or ground wheels,
and is provided with a tongue to which the
horses are hitched.

passes through the said head and through two
ears formed upon the connecting rod J.".

with the lower end of a lever, P, that is piv-
oted to the gearing carriage near its forward
end. The upper end of this lever P extends
within the reach of the driver, who sits upon
the driver's seat, Q, so that he may rock the
finger beam by moving the said lever to and fro.
This rocking lever P is fitted with a spring
bolt, whose end can engage in any one of a
number of notches formed in a segment, R,
which is attached to the gearing carriage con-
centrically with the pivot of the rocking lever,
so that the finger beam may be fastened in the
desired position by the engagement of the
spring bolt in the appropriate notch. The
rocking lever is fitted with a lever handle, p,
and rod connecting with the spring bolt, by
which the spring bolt may be withdrawn from
The parts of the specification which relate the notched segment and held disengaged there-
particularly to the subject matter of claims 1 from during the movement of the lever. In
and 2 are as follows: The finger beam G of order that the connection between the cutter
the machine projects at one side of the rear end on the finger beam and the crank shaft on the
of the gearing carriage A, and is fitted with gearing carriage may not obstruct the free
guard fingers, H, through the slots of which a rocking of the finger beam, the connecting rod
scalloped cutter, I, is arranged to reciprocate J is connected with the cutter I by means of a
end wise. The end of this cutter that is nearest swivel joint, S, consisting (see Fig. 1) of a
the gearing carriage is connected with the head, s, that is pivoted to the cutter stock (by
crank wrist g of the crank shaft D', by means a shank that extends lengthwise therewith, and
of a connecting rod, J. The finger beam is turns in fan ear, s', secured to the end of the
connected with the rear end of the gearing car-cutter stock), and of a cross pivot, 82, that
riage in the following manner: the end of the
beam nearer the carriage is provided with a
shoe, K, from which lugs a a project upward. There are ten claims in the patent, claims 1
These lugs are perforated to admit a joint bolt, and 2 being as follows: "1. The combination,
a', which connects the shoe with one end of a as set forth, in a harvester, of the finger beam
vibratable forked link, L, whose other end is with the gearing carriage, by means of the vi-
connected by a swivel joint, M, with a brack-bratable link, the draft rod and the two swivel
et, N, secured to the rear of the gearing car-joints M and M', so that the finger beam may
riage. This swivel joint is formed by a cross both rise and fall at either end, and rock for-
head (m, Fig. 1), the center of which is bored ward and backward. 2. The combination, as
transversely, to permit a journal formed on the set forth, in a harvester, of the finger beam,
end of the forked link L to turn in it. The erds gearing carriage, vibratable link, draft rod,
of the cross head m are formed into journals, swivel joints, and arm, by which the rocking
which turn in bearings upon the bracket N. of the finger beam is controlled."
Hence the finger beam can both rise and fall free-
ly at either end, and rock forward and backward
without twisting the link that forms its connec
tion with the gearing carriage. Moreover, the
axis of the cross head m of the swivel joint is
arranged in line, or thereabout, with the axis
of the crank shaft D', that imparts motion to
the cutter, so that such rising cr falling, or
rocking, does not materially change the dis-
tance between the crank shaft and the cutter.
The shoe K of the finger beam is connected
also with the front end of the gearing carriage
by a draft rod, O, and the connection between
the rear end of this draft rod and the said shoe
is a swivel joint, M', of which the joint pin a
of the vibratable link L is the longitudinal axis,
and its T-head m1 the horizontal axis. This swiv-
el joint, therefore, while maintaining a firm con-
nection with the draft rod, gives free play for
both the longitudinal and rocking movements
of the finger beam. Hence, when the machine
is used for cutting grass, the said finger beam
may be left free, not only to rise and fall at
either end, but also to rock or to be rocked
forward and backward, so that the points of
its guard fingers incline toward or from a hor-
izontal plane. In order that the finger beam
may be rocked by the conductor of the ma-
chine, the vibratable link L is fitted with an
129 U. S.

U. S. BOOK 32.

It will conduce to a solution of the questions
involved in the case, to give a history of the
progress of the application for the patent
through the Patent Office, as gathered from
certified copies of those proceedings found in
the record: On the 4th of December, 1885, the
patentee, Alvaro B. Graham, as assignor to
himself, William B. Werden, and Cyrus A.
Werden, filed in the Patent Office an applica-
tion for a patent, which was sworn to by him
on the 25th of February, 1864. The specifica-
tion of this application stated that one object
of the invention was the free passage of the
finger bar over the ground, and the perfect
moving of it to adjust itself to the inequalities
of surface over which it might pass; and that
another object of the invention was the cutting
in a proper manner of lodged grass or grain.
It also stated that the machine had a finger bar,
I, the inner end of which was attached, by a
joint, h, to a bar, J, which was at the rear of
the main frame, A, and was connected thereto,
at its left hand side, by a swivel or universal
joint, K, such joint being composed of a rod,
i, which was allowed to turn in a bearing, j,
attached to the main frame, the end of the bar
J being cylindrial and allowed to turn in the
rod i; that the yoint K admitted of the bar J
and finger bar I being raised vertically, and also

39

599

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admitted of those bars being turned in a more | and on the 11th of February, 1867, Mr. Graham
or less inclined position, in their transverse sec- filed an application which resulted in the patent
tion, to admit of the fingers and sickle being in suit, No. 74,342, issued February 11, 1868.
turned more or less down towards the ground, Claims 1 and 2 of the specification of that ap-
as might be required; that this adjustment of plication originally read as follows: 1. "The
the fingers and sickle was effected through the combination, in a harvester, of the finger beam
medium of a lever, M, which was connected by with the gearing carriage, by means of a vi-
a rod, /, with an upright, m, on the bar, J; that bratable link, draught rod, and two swivel
this lever M might be retained in any desired joints, so that the finger beam may both rise
position, within the scope of its movement, by and fall at either end, and rock forward and
means of a perforated bar, n, into the holes of backward, substantially as set forth." 2.
which a pin on the lever caught; that the finger" The combination, in a harvester, of the finger
bar I might be raised separately from the joint
h, as a center, through the medium of a lever,
N, which, like the lever M, was attached to the
main frame A, and had a chain or cor attached
to its lower end, said chain or cord passing
around a pulley, q, on the bar J, and being at
tached to the upper end of an upright, r, attached
to the finger bar at the joint h; that both bars, I
and J, might be elevated simultaneously by a
lever, O, which was also attached to the main
frame A, and bore at its lower end on another
lever, P, the outer end of which was connected
by a chain, 8, with the bar J; that the lever Opatent, the claims having been rejected in the
might be retained at any desired point, within
the scope of its movement, by means of a rack
bar, P'; that, in case an obstruction presented
itself to the inner end of the finger bar I, the
lever O was actuated in order to raise such end
of the finger bar, and if an obstruction pre-
sented itself to the outer end of the finger bar,
the lever N was actuated; and that the applicant
did not claim the connecting of the finger bar
I to the bar J, by a joint h, for that had been
previously done.

"

There were five claims in the specification, the first two of which were as follows: 1. "The attaching of the bar J to the main frame A by means of the swivel or universal joint K, when used in combination with the finger bar I, attached to it by a joint, h, and this I claim irrespective of any peculiar position of the parts or particular application of the same to the frame of the machine, so long as the desired result is obtained." 2. "The arrangement of the lever N, chain or cord p, and upright r, substantially as shown, for raising the outer end of the finger bar I, as set forth.' On the 30th of December, 1865, the Patent Office rejected claims 1 and 2 on a reference to prior patents. On the 24th of March, 1866, the ap plicant erased claims 1, 2 and 3, and substituted for claim 1 the following: 1. "The combination of the finger bar I and bar J attached to the frame A by means of the universal joint or swivel K, in the manner and for the purpose herein specified." On the 4th of April, 1866, the Patent Office rejected this substituted claim 1, by a reference to a prior rejected application and to a prior patent. On the first of October, 1866, it allowed the two remaining claims applied for, which had been numbered 4 and 5 originally. On the 18th of June, 1867, the applicant filed a withdrawal of the amendments filed March 24, 1866, the effect being to limit the invention claimed under the patent to the two claims allowed October 1, 1866, and the patent was granted July 23, 1867, as No. 67,041, with those two claims, which in no manner re late to any question involved in the present suit.

Prior to such withdrawal of June 18, 1867,

beam, gearing carriage, link, draught rod,
swivel joints, and arm, by which the rocking
of the finger beam is controlled, substantially
as set forth." There were fifteen claims in all
made in the specification. On the 29th of
July, 1867, the Patent Office rejected claims 1
and 2 by a reference to prior patents. On the
31st of December, 1867, the applicant amended
claims 1 and 2 so as to read as they are in the
patent as granted. The changes thus made in
those two claims, and which, under the circum-
stances, were made to secure the issuing of the

shape in which they were first proposed, were
these: In claim 1, "the combination as set
forth," was substituted for "the combination;”
"Ve vibratable link," for "a vibratable link;"
"the draught rod," for " 'draught rod;" "the
two swivel joints, M and M'," for "two swivel
joints;" and the words "substantially as set
forth" were erased. In claim 2, "the combi-
nation as set forth," was substituted for "the
combination;""vibratable link," for "link;" and
the words "substantially as set forth" were
erased. In the second claim the word "the"
was always prefixed to the enumerated elements
composing the combination claimed.

The principal question for determination, in
the view we take of the case, is that of infringe-
ment. The circuit court, in its opinion, deliv-
ered on the making of the interlocutory decree
(10 Biss. 39, and 11 Fed. Rep. 859), considered
especially two prior patents, one granted to
David Zug, October 4, 1859, No. 25,697, and
the other granted to F. Ball, October 18, 1859,
No. 25,797. In considering those patents, on
the question of infringement as well as on the
question of novelty, the circuit court said:
"The two claims of the Graham patent, which
are alone in controversy here, are the first and
second. The first claim is for a combination
of the finger beam with the gearing carriage
by means of the vibratable link, the draft rod,
and the two swivel joints, M and M', so that
the finger beam may both rise and fall at either
end and rock backward and forward; and the
second claim is the same as the first, with this
only added: that an arm is attached to the
vibratable link by which the rocking of the
finger beam is controlled by the driver. The
object of this invention, as set forth in these two
claims, seems to be mainly to produce the rock-
ing motion of the finger beam as described and
by the method described. In the Ball patent,
while there may be said to be something equiva-
lent to the swivel joint M of the plaintiff's
machine, where it is attached to the frame, and
also something similar to the draft rod and the
arm, there is nothing to produce the rocking
motion, which is the essential object in the first
two claims of the plaintiff's machine; and con-

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