be conceded that the attempted distinction between the process made use of by the defendant and that described in the patent fails, except in one particular. The knit loops on the outside of the defendant's fabric are of no materiality on this question, whatever advantage may result from not having to brush the interior and draw upon the body of the material for the nap. The patent says nothing of the character of the fabric, except that it shall be knit, and everything which falls within this description is therefore covered. It also calls for an exterior, and not an interior, brushing, so that nothing can be made out of that. Neither is there anything in the difference in the manner of blocking. The inventor suggests in the specifications the use of his own patent "former" for this purpose, but he by no means confines himself to it, and it is not mentioned in the claims. Whatever means of blocking or distending is employed, as a matter of process, it is the same. But in the use of a separately knit band with selvage edge, we have what, in my judgment, is a variance. The patent evidently contemplates that there shall be a single, integral piece of fabric, and not one made up of two or more parts. Referring to the initial step in the process, already in part quoted, the inventor declares: * ** "I first knit (preferably upon a flat-knitting machine of the ordinary Lamb type) a piece of fabric, * of which the main portion or body may be while the top and * the web being conseThe piece of fabric thus obtained is then by stitching the two longer sides together. * which is intended to form the rim or band of the cap, fitting upon the head of the wearer, is then turned in and stitched around its inner edge so as to make a double selvage." formed of half-cardigan or full-cardigan loops, There is thus formed what is spoken of in the first claim as “an elongated tubular body, with a band-forming selvage at its lower open end"; and in the second claim, as "an open-ended tube of knit fabric, with a band-forming selvage at one end"; while in the third it is described as "a single length of tubular fabric." In either case it must be regarded as fulfilled only when body and selvage band are knit as one web, and not simply sewed together. Where a union is to be effected by stitching the inventor is careful to say so; and where, on the other hand, it may be entirely dispensed with, as where the fabric is knit in a tubular form at the outstart, he does not forget to point that out as an alternative. It may be that the claims, disregarding the specifications, could be made to include a band-forming selvage that was sewed on, as well as one that was knit integral with the body. But the natural reading is otherwise, and the inventor having explained in the appropriate place in the specifications what was intended, it is to be followed. The complainant certainly cannot expect any broad construction of the patent to be given. That there are advantages where the selvage band is integral with the body, as well as where it is not, sufficient to make a distinction, is shown by the evidence. In the former case the band is simply turned over and stitched to the body, saving work, as well as making a much less prominent and objectionable seam. But where, on the other hand, the band is made separate, it is not so liable to be stretched and made ill fitting; and the body, as it is claimed, can be knit and handled more effectively both with respect to the design and characer of the fabric. It is said, however, that infringement is confessed by the defendant in his answer to the interrogatories. But however much it may so appear, it is manifest that this was not intended; nor are we, by reason of any such concession, to put a construction on the patent in this case which it will not bear in every other. Notwithstanding what is so answered, the distinction which has been pointed out exists with regard to the integral character of the fabric described in the patent, and it is by this that the question of infringement must be determined. It is also said that the defendant, in his examination, recognized that there was no material difference between a selvage band which is knit and one which is sewed to the body; speaking of them interchangeably in his testimony. But this occurred in answer to questions put by his counsel in which the identity of the two was assumed, and there is little significance to be given to his answering them, as they were framed, without stopping to mark the distinction. Further than this, it is possible that a separate band which is sewed to the body may, under certain circumstances, be properly spoken of as a selvage band. But that is not controlling. The question is whether the patent, as it stands, calls for the band and the body to be of one integral piece or web, which it plainly does, for reasons already given. Both on the ground, therefore, of the noninfringement of the patent, as well as its invalidity, the sui cannot be maintained. Let a decree be drawn dismissing the bill, with costs. DANIEL v. RESTEIN & CO. (Circuit Court, E. D. Pennsylvania. July 1, 1904.) No. 2. 1. PATENTS-ANTICIPATION-PACKING. The Miller patent, No. 524,178, for a packing consisting of two wedges shaped sections, intended to slide upon each other, with a yielding cushion back of one of said sections, by means of which the steam pressure transmitted to the sliding sections causes that side of the strip to widen, forming a tight joint, describes an effective and useful device; but the claims are not limited as to the materials to be used, and, the form of construction having been in use in a prior unpatented packing, the patent is void for anticipation. 2 SAME. Anticipation is not avoided because the anticipating structure, while me chanically the same, is not so efficient as that of the patent, owing to the use in the latter of different and better materials, which are not, however claimed as a feature of the invention. 3. SAME-UNPATENTED DEVICE-EXTENT OF PRIOR USE. To constitute an anticipation by an unpatented device, it is not necessary that it should have come into general use, but it is sufficient if it was in actual and practical use by a number of persons. In Equity. Suit for infringement of letters patent No. 524,178, for a packing, granted to N. B. Miller August 7, 1894. On final hearing. 13. See Patents, vol. 38, Cent. Dig. § 74. Charles Howson, for complainant. ARCHBALD, District Judge.1 There can be little doubt as to the high efficiency of the fibrous packing manufactured by the complainant, by reason of its self-sealing properties, by which the steam pressure operates to make it tight, without depending on the gland or follower yielding again when the pressure is lessened, and thus relieving friction. This is due, however, under the evidence, to two things: (1) The material of which the different parts of the packing are composed; and (2) the form in which they are put together, the one being as important as the other-if the elaborate experiments which have been put in evidence are to be accepted-a similar combination of different materials in the same form not giving the same satisfactory results. The packing is manufactured under a patent issued to N. B. Miller, August 7, 1894, the two claims of which are as follows: "(1) The combination in a packing strip, of the wedge-shaped sections A and B, the inclined surfaces of said sections adjoining, with a yielding cushion back of one of said sections, the whole confined within a casing, substantially as described. "(2) The combination in a packing, of the wedge-shaped sections, A and B, the inclined surfaces of each section adjoining, with an absorbent cushion confined in a braided casing and situated back of one of said sections, the whole combined in an outer casing, substantially as described." The following is a perspective and a sectional view of the packing; A and B being the wedge-shaped parts, and C the cushion: It will be noted that nothing is said in the claims with regard to the material of which these parts are to be respectively composed, except as in the one the cushion is required to be yielding, and in the other absorbent. The specifications, however, disclose that the wedge-shaped sections are intended to slide upon each other, so that the packing may widen out or extend itself laterally under pressure, from which it is argued that a material which will produce that result is necessarily implied. But all that is in fact stated on the subject is that the sections shall be made of flexible material-preferably of alternate layers of duck and rubber-which shall at the same time be comparatively stiff, and yet sufficiently yielding to effect their purpose, the use of a lubri 1Specially assigned. cant such as powdered graphite between the sections to facilitate sliding being also suggested; and that the cushion shall be preferably made of twisted cotton, because of its absorbent qualities, and its ability to transmit lateral pressure through the various layers of the packing. In these suggestions the inventor does not commit or confine himself to any specific material, nor base his invention upon it, and it would unwarrantably restrict its scope to so hold. The patent which covers it is therefore to be taken as essentially one for a mechanical combination or structure, and whatever is fashioned after it in this respect falls within its terms, whatever the material, and constitutes an infringement, or, conversely, if preceding it in time, amounts to an anticipation. It must be conceded that, confining ourselves to what is disclosed in previous patents, there is nothing to be found which affects the novelty of the invention. It is true that, in several of these, wedge-shaped or diagonal sections are employed, the manifest purpose of which, the same as here, is to effect a spreading or widening out of the packing to make a more perfect fit around the piston, with a corresponding yielding—as we may fairly assume-by which the friction is lessened when the pressure is relieved. Thus, in the Furse (1878), a series of conical or obliquely cut rings, reversely arranged upon each other, is found, with flat rings or washers interposed between each set, in much the same way as the cushion in the complainant's packing, the object of which is declared to be in order that the moving parts-piston, ram, or whatever it be-may work with minimum friction. So, in the Law (1887), one form which is given consists of triangular or wedge-shaped rings put together in the same way as they are here; the purpose being, as it is stated, to force the inner surface of one segment inwardly against the rod, and the outer surface of the other outwardly against the stuffing box. Here, also, the material specifically designated to be used is one made up of alternate layers of duck and rubber, the same as that which is given preference in the patent before us. Again, in the Turner (English, 1891), we have squares of packing made up of triangular pieces, in which form, it is said, the sections, being wedgeshaped and sliding on each other, are easily flattened, and, with very little pressure from the gland, will be molded into the stuffing box, and kept in close contact with the piston rod or other moving part. And finally, in the Walsh (1890), a cushion combined with a separate wearing section is shown; the one being of rubber, and the other of flexible metal; the whole, as well as each part. being inclosed in a braided envelope or cover of fibrous texture, adapted to absorb and retain the lubricants applied. But notwithstanding the fact that practically every feature of the present device, in one form or another, appears in these references, a new and distinct combination of them has been made by the inventor, by which a packing of novel character and efficiency has been produced. In reaching this conclusion, however, the ground upon which this novelty rests, which has already been indicated, should be clearly recognized. It is not to be predicated upon the sliding of the wedgeshaped sections on each other to effect a self-sealing, on which so much stress is laid. Accepting this as a real and valuable property, and as effectively developed in the packing under discussion, it must at the same time be regarded as present to a degree in every one of the references given in which wedge-shaped sections are employed; the necessary result as well as the declared purpose in each, as has been pointed out, being to widen out the packing so as to produce it. The idea is also common to the general packing art-metallic as well as fibrousas appears by the Gerry (1878), where it is distinctly described and claimed. The legal claim to novelty, therefore, in the complainant's packing, lies simply in the special combination of cushion and wedgeshaped parts, by which the inventor has undertaken to bring this action about; the increased effectiveness, if any, however produced, outside of this, going merely to its general merit. If this conclusion be correct, the packing manufactured by the complainant, while good as against the record references which have been brought forward, was unfortunately anticipated by a packing devised by one W. H. Miller, father of N. B. Miller, who took out the patent in suit. This earlier packing, which was put out in 1882, was identical in structure with that manufactured by the complainant under the patent, differing only from it in the materials used. It had a cushion of hemp, instead of twisted cotton, and wedge-shaped sections, of which one was of solid rubber, and the other of cotton webbing, instead of each being made up, as in the complainant's packing, of alternate layers of the two; the whole being confined in a braided covering or casing. How any two devices could be closer, it is difficult to see; and, that the one fulfills the terms of the patent equally with the other, there can be no doubt. As we have already seen, all that is there required with regard to the cushion in either specifications or claims is that it shall be yielding and absorbent, which is just as true of hemp as of cotton; and, with regard to the diagonal sections, that the material shall be flexible, a quality which can be no more denied to rubber and cotton when used separately than when they are combined together. If now for the first time introduced, this packing would unquestionably constitute an infringement of the patent; and, having preceded it in time, it is, by the same consideration, an anticipation. It is contended, however, that the two packings are distinguished by the results the one being highly efficient, and the other not at all so; reliance for this being had upon the experiments which have been referred to. But as already intimated, the difference so established is one of degree, and not of mechanical structure, which alone is patentable; nor of function, which was common in the art and could not be so monopolized. It arises, undoubtedly, as pointed out above, from a wise selection of materials for the triangular sections, as well as the use of a lubricant between them to facilitate lateral sliding. The latter is suggested in the specifications, but does not enter into the claims any more than the material to be used, and is too obvious an expedient on which to base a pretension to novelty. As neither of the things, therefore, on which the superiority of the complainant's packing depends, enters into the invention as defined in the patent, they cannot be relied upon as final steps which sometimes distinguish success from failure, and make patentable that which otherwise would not be. But it is said that the earlier packing was not successful commer |