And as we have already indicated, there is nothing in the prior art to discredit the examiner's accedence to Ries's demands.

The defendant's device has a primary lever, under the control of the operator, which is used to close the circuit, and which, upon the closing of the circuit, releases a secondary lever. By means of a weight upon the secondary lever, it is moved across the contact points of resistance coils. That is, defendant uses a gravity engine instead of a solenoid as the "actuating mechanism" for the automatic movement of the secondary lever. But the claim covers any actuating mechanism that performs the same function as the solenoid in bringing about the new result; and furthermore, even if the Ries invention were not of a primary character, the gravity engine, before Ries's time, had been used as the mechanism for actuating a contact arm across the points of resistance. By means of a pin and a link the primary and secondary levers of defendant are so related that the operator, through his direct control of the primary lever, can stop the automatic movement of the secondary lever at any desired point of resistance, and thereby adjust the current to the load. The adjustable stop of defendant is therefore practically identical with Ries's. The adjustable speed regulating device to control the rate of motion of the secondary lever is the same in both apparatuses-an adjustable dashpot. These elements that are brought together in defendant's self-contained apparatus have the same relations of movement and time, perform the same offices, and accomplish the same results, as in Ries's apparatus. What effect is to be given to the fact that defendant's apparatus is made in accordance with the specifications of the later Dillon patent?

Where neither a new result nor a new principle of operation in producing the result has been achieved, and the patentee has merely improved upon the old way of accomplishing the old result, the presumption is that his patent is not infringed by a later patent for improvements upon the same old way of accomplishing the same old result. That is, presumably, each is an independent improver in a field that was as open to the one as to the other-presumably the thought of the one has not overlapped the thought of the other. But the presumption is not conclusive, and, even in the cases of the narrowest patents, it is always open for the complainant to show that the defendant has appropriated his property.

Where a new result has been attained by some patentable mode of operation, the patentee cannot have a monopoly of the new result. It is open for any one to devise and patent a new means of producing the same result-a means that has a different principle of operation-and one who succeeds in doing this is not an infringer of the older patent.

But where a complainant patentee has accomplished a new result by a new means, a defendant cannot escape the charge of infringement merely by showing a later patent. The field covered by the primary patent is not free for defendant's plowing without the owner's consent. True, the defendant may have devised an inde

pendent method of arriving at the same result; but it is also true that he may merely have added supplementary devices, or improved some details of the primary patent. There is no presumption either way. The facts are to be taken from the proofs. And the facts in this case being, as we find, that the Ries invention is primary, that Dillon accomplishes the same result by the same principles of operation, we think infringement is established. Consolidated Valve Co. v. Crosby Valve Co., 113 U. S. 157, 5 Sup. Ct. 513, 28 L. Ed. 939; Morley Sewing Machine Co. v. Lancaster, 129 U. S. 263, 9 Sup. Ct. 299, 32 L. Ed. 715; National Hollow Brake Beam Co. v. Interchangeable Brake Beam Co., 106 Fed. 693, 45 C. C. A. 544; Crown Cork & Seal Co. v. Aluminum Stopper Co., 108 Fed. 845, 48 C. C. A. 72; Lamson Consolidated Store Service Co. v. Hillınan, 123 Fed. 416, 59 C. C. A. 510; Western Telephone Mfg. Co. v. American Electric Telephone Co. (C. C. A.) 131 Fed. 78.

Whether Dillon displayed invention in adding supplementary devices or in improving certain elements in Ries's combinations is irrelevant to the question of infringement. Store Service and Telephone Cases, supra.

The Circuit Court, having found that Ries devised a new combination of elements that produced a new result, was in error, we believe, in limiting the complainants to the solenoid and other specific features covered in other claims, and in denying them the range of equivalency that properly inheres in the broad terms of the claims in suit.

Inasmuch as the patent has expired pending the determination of this suit, the mandate will be

Decree reversed, with the direction to the Circuit Court to enter a decree in complainants' favor for an accounting.

KELLEY et al. v. DIAMOND DRILL & MACHINE CO.

(Circuit Court of Appeals, Third Circuit. April 27, 1905.)

PATENTS-VALIDITY-COIL-CLASP.

Permission granted a defendant to apply to the trial court for leave to file a supplemental bill in the nature of a bill of review to bring forward new evidence tending to show the invalidity of the Jackson patent, No. 433,791, for a coil-clasp.

In Re Petition for Leave to File Supplemental Bill in the United States Circuit Court.

See 132 Fed. 978; 131 Fed. 89; 130 Fed. 893; 129 Fed. 756, 64 C. C. A. 284.

Horace Pettit, for petitioners.

Wm. C. Strawbridge, for respondent.

Before ACHESON, DALLAS, and GRAY, Circuit Judges.

ACHESON, Circuit Judge. This was a suit in equity in the Circuit Court of the United States for the Eastern District of Pennsylvania, brought by the Diamond Drill & Machine Company against Frank Kelley et al., trading under the firm name of Kelley Bros. & Spielman, for infringement of letters patent No. 433,791, bearing date August 5, 1900, for an improved coil-clasp, granted to Calvin Jackson, of whom the complainant is assignee. At the hearing of the cause upon the pleadings and proofs the Circuit Court adjudged that the patent was valid, and that the defendants had infringed the seventh claim thereof. 120 Fed. 282. Upon appeal by the defendants, this court on June 29, 1903, affirmed the decree of the Circuit Court. 123 Fed. 882, 59 C. C. A. 370. Subsequently the mandate of this court was issued, and was filed in the court below on May 6, 1904. On February 24, 1905, written notice signed by the solicitor and counsel of the appellants was served upon the solicitor and counsel of the appellee that at the opening of the March term, 1905, of this court, on March 7, 1905, or as soon thereafter as counsel could be heard, an application by petition would be made by the appellants to this court for leave to file a supplemental bill in the nature of a bill of review in the Circuit Court, for the reasons and purposes set forth in the petition; and a copy of the petition and copies of certain supporting affidavits were also served in connection with said notice, and at the same time, upon the solicitor and counsel of the appellee. Accordingly at the opening of the term the appellants presented such petition to this court.

The petition, after reciting the various proceedings in the cause, sets forth that during or about the month of June, 1904, the petitioners discovered new matters, then for the first time known to them, which were important and material, and which proved the invalidity of said letters patent No. 433,791. These matters are recited with particularity, and consist of alleged newly discovered evidence of two prior uses, which may be briefly designated as, first, the Maier use of belt-fasteners at the Trenton Spring Mattress

Company's factory; and, second, the wire-cloth fastener used at the De Witt wire cloth factory and elsewhere. The prayer of the petition is as follows:

"Your petitioners therefore pray that they may be granted leave by this honorable court to make application to the Circuit Court of the United States, in and for the Eastern District of Pennsylvania, and more particularly to the Honorable R. W. Archbald, District Judge, who rendered the decision in said court, for leave to file in said court against the said Diamond Drill & Machine Company a supplemental bill, in the nature of a bill of review, to bring forward the aforesaid new matters, in order that the evidence of such new matters may be taken in the cause, and the same adjudged as equity and good conscience may require."

It is insisted on the part of the appellee that the appellants are precluded from maintaining this petition by reason of the delay in presenting the same to this court after the discovery which was made in the month of June, 1904. But in view of all the circumstances, we are not willing to hold that the petitioners are thus estopped. Mr. Pettit, the counsel of the petitioners, states in one of his affidavits that while "he first had knowledge of the new evidence in June, 1904, at the time of the interview with Franz J. Maier referred to, it was not until about four months afterwards that the defendants learned that they had sufficient corroborative proofs of the prior use by Maier, and of the De Witt wire cloth anticipation, such as would warrant the petitioners in filing this petition." We think that it is a fair conclusion from Mr. Pettit's two affidavits that the information which came to the petitioners in June, 1904, was incomplete; that such partial information as they then acquired was followed up by reasonably diligent efforts on the part of the petitioners to ascertain the facts; and that the necessary information upon which to base an application to this court for leave to file a supplemental bill in the Circuit Court was not fully obtained until the middle of October, 1904. Therefore we will overrule the objection based on lapse of time to our entertaining the petition, and will make an order in compliance with the prayer thereof.

It is ordered that permission be, and the same is hereby granted to the petitioners to make application to the Circuit Court of the United States, in and for the Eastern District of Pennsylvania, within 30 days after the entry of this order, for leave to file in said court against the Diamond Drill & Machine Company a supplemental bill, in the nature of a bill of review, for the purposes set forth in said petition, and in accordance with the prayer thereof. And the Honorable R. W. Archbald, who tried and decided the case originally, is designated and appointed to hold the Circuit Court, and hear and act upon said application, and to act in all proceedings in the cause which may ensue.

AMERICAN SODA FOUNTAIN CO. v. SAMPLE.

(Circuit Court of Appeals, Third Circuit. April 27, 1905.)

PATENTS-SUIT FOR INFRINGEMENT-POWER TO GRANT REHEARING AFTER DECISION ON APPEAL.

Where the Circuit Court of Appeals has adjudged invalid the claims of a patent in issue in an infringement suit, reversing the Circuit Court, and issued its mandate directing the entry of a decree in conformity with its opinion, the authority of the Circuit Court is limited to the entry of a decree executing the mandate by dismissing the bill, and it has no discretion to grant a rehearing on the ground that complainant has filed a disclaimer in the Patent Office which avoids the grounds of invalidity found by the appellate court, unless by leave of the latter court.

On petition for a writ of mandamus to enforce the mandate of the court in the case of the American Soda Fountain Company and another against George W. Sample.

Joshua Pusey and Walter C. Pusey, for petitioner.

W. G. Henderson, for Sample.

Before ACHESON, DALLAS, and GRAY, Circuit Judges.

ACHESON, Circuit Judge. George W. Sample brought his bill of complaint against the American Soda Fountain Company and Alfred H. Lippincott in the Circuit Court of the United States for the Eastern District of Pennsylvania for the alleged infringement of letters patent No. 498,962 for an improvement in draft tubes for soda-water fountains, and, the cause having been heard upon the pleadings and proofs, the court made a decree adjudging that the first and fifth claims of the patent were valid, and that the defendant, the American Soda Fountain Company, had infringed these claims. 126 Fed. 760. Upon appeal by the said defendant, this court held that the first and fifth claims of said patent were invalid for want of patentable novelty, and we reversed the decree of the Circuit Court. 130 Fed. 145, 64 C. C. A. 497. On the 16th day of December, 1904, the mandate of this court was issued to and filed in the Circuit Court, directing that court to enter a decree in conformity with the opinion of this court. Undoubtedly, the mandate required the entry by the Circuit Court of a decree dismissing the bill. Before the court had acted upon our mandate, the complainant below (Sample), on December 30, 1904, presented his petition to the Circuit Court, setting forth that on December 27, 1904, he had filed a disclaimer (copy of which was attached to his petition), and prayed that the court "give further consideration to this cause, in view of said disclaimer being made a part of the patent in suit." On January 15, 1905, the Circuit Court granted a rehearing, upon condition that the petitioner pay all costs that had accrued both in the Circuit Court and in the Court of Appeals. In the opinion (134 Fed. 402) announcing the allowance of a rehearing, the court describes the disclaimer as one by which the complainant "seeks to restrict the claims in controversy" so as to "avoid the effect of the anticipating devices referred to by the Court of Appeals." And then, after recognition of the rule that the Circuit