alarm, and causing the hammer to sound a bell. On the first stroke of the hammer, the friction wheel of the self-lighter is set free, and a light appears. In the patent to Farmer, of 1859, No. 22,602, the drawing attached to the specification indicates a combination for operating a water motor by accumulated force, obtained by means of suspended weights. Reference to the simplified diagram in evidence and the Farmer patent, discloses that:

"If the motion of the armature, D, were employed directly to operate the valve, k, and to raise the detent, q, as it might be, a very great comparative electrical power would be required; but if the armature, D, is used only to liberate a weighted arm, poised nearly vertically, or a series of any number of weighted arms be employed, each arm being heavier than the one which precedes it, and employed to liberate that which succeeds it, the last one liberating the machinery by its momentum in falling, only a small fraction of the same electrical power will be required."

According to the defendant's expert witness, the citations substantially described the principle of the patent in suit, and that the complainant's apparatus is merely a trifling modification of that which was commonly known. The evidence, however, indicates that Bragg applied a known principle assisted by new instrumentalities, to a new use, and if he was the first and original inventor, something new was created of patentable merit. The patent therefore cannot be held invalid for want of novelty, despite the similarity of the principle of mechanism as shown in the anticipated patents. As was said in Diamond Drill & Machine Co. v. Kelly (C. C.) 120 Fed. 289:

"The principles of mechanics are always the same, and, in the almost endless combinations of them possible, it is not to be expected that duplicates will not occur."

Under the doctrine of Hobbs v. Beach, 180 U. S. 392, 21 Sup. Ct. 409, 45 L. Ed. 586, the adaptation of old elements to a new use, and the minor changes required for that purpose where a new industry was practically established, may be within the realms of invention. And, even though the anticipatory references belong to a nonanalogous class, they may still be considered to determine the scope of the claims. Jones v. Cyphers (C. C.) 115 Fed. 324. The question of patentability and construction of claims, however, is not necessary to the decision of this controversy. The comparisons that have been made between. the Bragg device and the mechanism of the prior art were merely to indicate the probable scope of the claims, and the probability of its conception and use by others prior to the invention in suit. Haworth

v. Stark (C. C.) 88 Fed. 512. Lee v. Upson & Hart Co. (C. C.) 43 Fed. 670. The evidence of prior use by others seems to be sufficient to defeat the patent. The invention of Flanders in 1869 will be briefly considered first. The testimony tending to show an installation of the device as early as 1869 is not entitled to probative weight. It was deemed strange in the Terre Haute Case, that if the device was publicly used as claimed, the attention of the committee from a Philadelphia engine company sent to the city of Boston in the spring of 1869 to inspect fire houses and apparatus was not apprised of the improvement. The evidence shows that some of the members of the committee visited the engine house where the device was claimed to have been in

actual use. The point was urged that contemporary records of the Boston fire department made no mention of such mechanism. True, the witness Flanders explained that the record of the fire department only scheduled property owned by the city, but it may still be presumed that if the device had been in public use as claimed, the attention of the visiting members of the committee would have been directed thereFurthermore, a number of witnesses, members of the engine company, testified that during their connection with the said engine company, in the year 1869, and for several succeeding years, their attention was never called to the device, nor did they ever hear of its use. Such being the evidential facts in relation to the suggested prior use, the conclusion reached by the learned court in the Terre Haute Case was undoubtedly correct.

to.

To establish the defense of prior use, stress is justly placed upon the testimony relating to the Higgins and Bailey apparatus. The proofs show that, in 1872, Higgins was engineer of steam fire engine No. 6, in the city of Albany. He devised means prior to July 28, 1872, to automatically unfasten the horses in the stalls at the instant that the alarm was sounded. His recollection as to the exact time when the device was in use is based upon a news item in the Sunday Press, published in the city of Albany, on July 29, 1872. The said item graphically described the manner in which the horses were released and hitched to the pole of the engine under his (Higgins') supervision. Higgins narrated an incident which occurred on the night of September 1, 1872, by which his recollection was refreshed as to the time when the device was in successful operation. The gong, he stated, sounded an alarm of fire, and the horses quickly responding took their places, but, before they could be hitched to the steamer, they obstinately returned to their stalls, making it necessary to lead them to the engine. Soon afterward the horses, while proceeding to the fire, ran away into the river and were drowned. He produced a sketch drawn under his direction showing the device and modus operandi. He testified that, when the gong attached to the wall of the engine house struck a blow, a clamp was drawn back, operating to release a small weight, which, in turn, caused a larger weight to drop, and to thereby, release the horses. Further describing his device he said:

"The chain going under the stalls along the timber, coming out to this counterweight that pulled the gas pipe that ran along the face of the mangers, and when that was pulled back the halter that held the horses was released, and the gong under it struck, and the horses threw up their heads, and ran out."

Defendant's witness McCabe, also an employé of the said fire engine house, corroborated Higgins in all material matters. He likewise refreshed his recollection regarding the time when the device was in successful use, by the news item mentioned. He referred to the occasion when the horses ran away, and the fact of their drowning. Afterward, the chief engineer, apprehending that the device might interfere with an alarm, objected to its use, and it was thereafter for a number of years simply used to open the stable doors, instead of to release the

horses. The difference between the Bragg and Higgins constructions was that in the former the horses were released by withdrawing an armature, while in the latter they were unfastened by a hammer coming in contact with the gong. The announcement in the Sunday Press may not accurately have described the Higgins construction, but it is clear that, before its publication, there was in actual use an automatic arrangement by which the horses were released upon the stroke of the hammer upon the gong.

Complainant contends that the device was merely an abandoned experiment. This, however, was not the fact, for the practicability and operativeness of the apparatus is abundantly shown by the evidence. That the use of the device was discontinued by the chief of the fire department does not warrant the presumption that it was incomplete or used merely as a trial test. No witnesses were called by the defendant to contradict or impeach Higgins, although he was subjected to the test of a cross-examination. As has been intimated, the device was substantially like that described in the specification in suit, and equivalent means were employed to attain the result.

The Bailey apparatus. In 1872, Bailey, who was in charge, as engineer of the steamer Hugh Ranken, altered a hand-lever device, then in use, by which the horses were released on the instant of sounding an alarm of fire. The change or alteration consisted of attaching the hand-lever device to the fire alarm telegraph. Bailey says that his device was in successful operation prior to June 20, 1872. It is undeniable that this improvement accomplished the result of the patent in suit by substantially similar means. The important question is whether the Bailey device was completed and successfully used at the time stated by him. Upon this point he is corroborated by three members of the steamer company, and also by newspaper publications and entries in the records of the company. The narratives of the witnesses would ordinarily be regarded as improbable, on account of the lapse of time, but here, as will now be shown, it was indisputably corroborated by facts and documents. The proofs show that on July 26, 1872, the Troy Times, a daily newspaper published in the city of Troy, printed an announcement of Bailey's adjustment and attachment to the fire alarm telegraph, by which the horses were released from their stalls. On the next day, an article of similar import appeared in the Troy Daily Whig. On July 29, 1872, the Troy Daily Press also contained a news item describing Bailey's improvement. Later, on October 1 and 2, 1872, other news items were printed. relating to said inventions. Such publications were distinctly remembered by the witnesses who testified upon the subject, and served to recall to their minds the exact period of time when the improvement was in public use. Such prior use is further shown as has already been said, by contemporaneous entries in official records kept by Bailey and the secretary of the engine company. The entries are as follows: Monday, July the 14th: "Engineer Bailey commenced putting in his attachment for unhitching horses by means of the F. A. Telegraph." On the 22d: "Working on hitching apparatus."

On Wednesday, the 23d: "Working on hitching apparatus."
On the 24th: "Completed the hitching apparatus to-day."

On Friday, the 25th: "Hitching apparatus as devised by Engineer Bailey works to a charm. The hammer of the gong in striking the blow, throws back a hinge which lets a small weight fall in the cellar, which, in turn, pulls back a bolt, and lets drop a heavier weight, which is connected by wire and cords with the hitching rod in the barn."

In the circumstances presented, there is no doubt that the Bailey invention was in actual public use before the application in suit, and continued in such use by the engine company mentioned for a number of years thereafter. It is true, the witnesses were unable to testify to an independent recollection of the precise date when the apparatus were first operated. Their memories, however, according to their declarations, were distinctly and positively refreshed by the newspaper items, they having read them at the time of their publications, and hence their evidence is entitled to probative weight. No satisfactory reason for discrediting such evidence has been suggested. The narrative by Higgins in relation to the horses running away and drowning is not helpful, but the significance of the news items in evidence, which directly referred to the subject-matter, and recalled the facts to Higgins and Bailey, cannot be overlooked.

I am not unmindful of the general rule as stated in Thayer v. Hart, (C. C.) 20 Fed. 693, and many other adjudged cases, that evidence of prior invention affords large opportunity for fraud, deception, or mistake, and it must be established by explicit and positive proof. The Bragg patent, having several times been sustained by courts of the highest integrity, a natural hesitation to reach a different conclusion is entertained. This controversy, however, is unquestionably determinative upon the presentation of new facts, from which an entirely different conclusion, I think, is justified. The rule of comity, as frequently said, has its limitations. In Mast Foos & Co. v. Stover Mfg. Co., 177 U. S. 485, 20 Sup. Ct. 708, 44 L. Ed. 856, the Supreme Court of the United States succinctly said:

"It has no application to questions not considered by a prior court, or, in patent cases, to alleged anticipating devices which were not laid before the court. As to such, the action of the court is purely original, though the fact that such anticipating devices were not called to the attention of the prior court is likely to open them to suspicion."

The alleged prior use by Flanders as said, was heretofore fully considered in a former litigation; but the devices of Higgins and Bailey together with the antecedent patents of Chambers, Haller, and Farmer were not before the court. After careful consideration, I have reached the conclusion that the Higgins and Bailey devices though unpatented, were in successful operation and use prior to the invention in suit; and that the defendant has established such use by a fair preponderance of the evidence and in accordance with the established rule. Such determination as already remarked renders it unnecessary to discuss more fully the scope of the claims in suit or the issue of infringement. The bill is dismissed, with costs.

GENERAL ELECTRIC CO. v. GARRETT COAL CO.

(Circuit Court, W. D. Pennsylvania. October 23, 1905.)
No. 31.

PATENTS-INFRINGEMENT-TROLLEY STAND.

The Bentley patent, No. 488,179, for a trolley stand for electric cars, construed, and held not infringed by a device which did not contain a spring plunger sliding in the drum to support the trolley pole, which is made an essential element of the combination of each claim, nor any mechanical equivalent thereof.

In Equity. On final hearing.

Betts, Betts, Sheffield & Betts, for complainant.

E. E. Robbins and Glenn S. Noble, for respondent.

BUFFINGTON, District Judge. This is a bill in equity brought by the General Electric Company against the Garrett Coal Company, users of a mining electric locomotive made by the Morgan-Gardner Electric Company. The bill alleges infringement of the first claim of a patent. No. 488,179, owned by complainant, which was granted to Edward M. Bentley for a trolley stand for electric cars. The defenses are invalidity of the patent and noninfringement. We will for present purposes assume the validity of the patent, and confine ourselves to the question of infringement. The patent relates to trolleys for electric cars, which the patentee explained frequently jumped off their overhead conductorswhen passing around curves or over switches; that this was due to the fact the trolley moved stiffly in its bearings, and could not accommodate itself to the movements of the car. His device consisted of a hollow pedestal secured to the roof of the car. Loosely fitting therein was a cylindrical rotatable drum, the upper end of which extended above the cylinder, and was provided at one side with a pair of legs, between which was hinged the trolley pole socket. From this socket a lateral arm projected to the center of the drum, where it had a bearing on a plunger fitted to slide smoothly in the drum, and compress a strong spring seated on the drum bottom. The specification then proceeds:

"The operation is obvious. The spring keeps the trolley wheel normally pressed up against the overhead conductor, but permits the pole to sway up and down, as may be necessary. The drum turns easily on its bearings in the cylinder, and thus provides for the lateral movement of the pole in rounding curves and the like."

Upon this device was granted, inter alia, the claim now in dispute, viz.:

"A trolley stand comprising an upright cylinder, a drum rotatable therein, and adapted to carry a pivoted trolley pole, and a spring plunger sliding in the drum to support said pole, substantially as described.”

The alleged infringing apparatus also uses an upright base or cylinder, in which is sleeved a rotatable drum, which supports the trolley pole, which is pivoted thereon. The lower end of the pole extends beyond the supporting pivot to the center of the drum. From this end a strong