judge of the court below in that part of his opinion which we again quote. He says:

"Neither is there anything novel in tie-rods, fastening together upper and lower plates; which are shown in the Bryant (1847), the Tillman (1872), the Hemmich (1875), the Boynton (1876), the Guttermann, the Godley, and the Heim (1888). In all of these, moreover, they are located in hot air flues, or away from the space given up to fire and smoke, and in the Tillman also, the advantage of having them so removed and protected against the action of the products of combustion is expressly claimed."

In what way, however, does this location of the tie-bolts, in combination with the other elements set forth in the claim (all of them admittedly old), produce any new and useful result? The aggregation of these several old elements in one structure may have produced, and doubtless did produce, a hot air furnace that was some improvement upon the prior art, in the respect that they may have been stronger, more durable, or easier of construction. But these results were due to the function of each old element acting independently and by itself, without co-action with the other elements. A box put together with screws, mitred joints and dowel pins, may be an improvement, in appearance, strength and utility, upon one put together with nails alone, but the elements of screws, mitred joints and dowel pins is an aggregation of elements, each contributing its own function and not a patentable combination. No new and useful result, in the sense of the patent law, was achieved or claimed by the combination or aggregation of the elements described in claim 5. The mode of distribution of heat was not modified or changed, and neither its quantity nor quality was affected at all by this combination of old elements. The most that could be claimed is that the structure was more enduring, more easily and securely put together, because the tie-rods which were performing the same function of clamping together the top and bottom plates were protected from deterioration by being located within the tubes, and the shoulders on the tubes made a convenient and sufficient support for the top-plate, and the flanges on the bottom plate serve to hold securely the bottom of the tubes in place, and the projection of the tubes through the top-plate serve to hold the sand around the joints. Each of these elements contributed its own function and attribute, which was in nowise dependent upon the others, or affected thereby. We are compelled, therefore, to think that claim 5 set forth a mere aggregation of old elements, and not a new combination involving patentable invention.

The decree of the Circuit Court is therefore reversed, with instructions to take such further proceedings as are not inconsistent with this opinion.

BENBOW-BRAMMER MFG. CO. v. STRAUS et al.

(Circuit Court, S. D. New York. March 23, 1908.)
No. 9,630.

PATENTS-INFRINGEMENT MEANS FOR OPERATING WASHING MACHINES.
The Schroeder patent, No. 535,465, for means for operating washing ma-
chines, the essential feature of which is the means by which, while the
horizontal driving shaft is turned continuously in the same direction, it
imparts a reciprocal movement to the vertical operating shaft, while an
improvement patent, is as to such feature in the nature of a pioneer and
entitled to a fairly liberal range of equivalents. Such movement is ac-
complished by having a cylinder or sleeve mounted on the operating shaft
which carries the gears, and which slides upon the shaft, and, by moving
up and down in operation, brings the cogwheel of the driving shaft in al-
ternate engagement with sets of cogs or teeth above and below it. The
patent held infringed by a machine in which the same movement is ob-
tained on the same principle and by substantially the same means; the
only difference being that the up and down movement necessary to make
the alternate engagements is transferred to the driving shaft by the use
of a grooved hub, instead of a sleeve on the operating shaft, and the
change being merely colorable.

In Equity. Suit to restrain alleged infringement of United States letters patent, No. 535,465, dated March 12, 1895, to John Schroeder for "means for operating washing machines," application filed October 23, 1894, and for an accounting.

Ralph L. Scott, Taylor E. Brown, and Clarence C. Poole (Philip Mauro, of counsel), for complainant.

C. D. Davis and Charles C. Bulkley, for defendants.

RAY, District Judge. Claim 1 of the patent in suit has been under consideration by the courts many times, and its validity sustained. Schroeder v. Brammer (C. C.) 98 Fed. 880; Brammer v. Schroeder, 106 Fed. 918, 46 C. C. A. 41; Benbow-Brammer Co. v. Simpson (C. C.) 132 Fed. 614; Benbow-Brammer Co. v. Heffron Tanner Co. (C. C.) 144 Fed. 429; Benbow-Brammer Co. v. Richmond Cedar Works (C. C.) 149 Fed. 430; Benbow-Brammer Co. v. Wayne Mfg. Co. (C. C.) 157 Fed. 559. However, its scope, its standing as a pioneer or as a mere improvement, is important in determining whether or not the defendant infringes. In Benbow-Brammer Co. v. Richmond Cedar Works (reported in 149 Fed. 430 on application for preliminary injunction), Judge Kohlsaat, on final hearing, has decided that defendant does not infringe. He arrives at the conclusion that Schroeder's invention resided in the "cylinder mounted upon an operating post and having a vertical sliding movement thereon and also having a double row of teeth or cogs meshing with the teeth of the cog at the end of the driving shaft in such a manner as to secure a reciprocating rotary movement of the cylinder," and which, as he understands claim 1, is the third element of that claim; that the means employed by defendant does not include this cylinder, or an allowable equivalent, giving the Schroeder patent its proper construction in view of the prior art; and that therefore defendant does not infringe. If correct in this interpretation of the claim in suit and

of defendant's device and its operation, his conclusion is, of course,

correct.

Claim 1 of the patent in suit reads as follows:

"1. An operating shaft having a rotary reciprocating motion, a cylinder placed upon the shaft, and having a sliding movement thereon, and through which cylinder motion is alone communicated to the shaft, and a double row of teeth or cogs upon the cylinder extending at an angle to the shaft, com bined with a driving shaft having means for revolving it attached to one end, and a wheel for engaging the teeth on the cylinder at the other, the driving shaft being driven continuously in one direction, substantially as shown."

The first element is the operating shaft, which is moved for a time in one direction and then for the same length of time in another. In a washing machine, or any other for that matter, whatever is attached to the lower end of this shaft will be carried first in the one direction and then in the other. Hence clothing in a washtub will not be wound about it. This operating shaft properly pivoted could be given this motion by an arm or lever attached to its upper end, and alternately pushed and pulled by the operator. Schroeder, however, sought to impart this reciprocatory motion continuously and uniformly by means of a horizontal driving shaft continuously turned or driven in one direction by means of a crank or handle at one end. It is self-evident that the necessary reciprocating motion of the operating shaft will be produced by cogs on the operating shaft meshing with cogs on the driving shaft, continuously driven or turned in one direction, provided the cogs on the driving shaft so mesh with those on the operating shaft as to move them first in one direction and then in the other. Moving the cogs on the operating shaft, assuming them to be integral therewith, from left to right, carries the shaft and the stirrer in the tub attached thereto in the same direction. So from right to left the same result. Now, if by some arrangement of parts the continuous movement of the cogs on the driving shaft in one direction can be made to so mesh with those on or attached to the operating shaft as to move them first from left to right and then from right to left, the problem is solved. This is what Schroeder set himself to do. It was selfevident that the result sought would be accomplished if the cogs on the driving shaft, it being stationary, but revolving from left to right, should for a time mesh with those on the operating shaft from above and then for the same length of time from below. Where meshing from above, the cogs of the driving shaft moving from left to right would pull those of the operating shaft from right to left and turn that shaft in the same direction, right to left. Where meshing from below, the cogs of the driving shaft moving in the same direction, that is from left to right, would push those of the operating shaft from left to right and move that shaft in the same direction, left to right. It was now necessary to provide some means or construction which would either transfer the cogs of the driving shaft from the upper to the lower side of the cogs of the operating shaft at short intervals, or transfer the cogs of the operating shaft from the upper to the lower side of the cogs of the driving shaft at short intervals.

Hence Schroeder provides means for doing this in the following manner: Upon his operating shaft he places a cylinder or sleeve, the

shaft being so constructed that the cylinder will not turn thereon, which sleeve will slide up and down, this movement being limited. This sleeve has a double row of cogs, upper and lower cogs, extending at an angle to the shaft. If now motion is communicated to those cogs, the cylinder is turned, and the operating shaft with it, and thus through this cylinder motion is communicated to the shaft as it cannot turn thereon. The sole and only purpose of the sliding movement is to give to the cogs on the operating shaft the necessary up and down movement at the proper time; that is, allow them to pass from the upper to the lower side of the cogs on the driving shaft. The shaft itself has no up and down movement, but the part of it (considering the cylinder as a part of it) carrying the cogs does. The driving shaft and cogs thereof have no movement in any direction except to revolve. It is perfectly obvious that, if the cogs of the operating shaft are made integral with it, and it does not move up and down, the same result will be accomplished; that is, the imparting of the reciprocal or reciprocating motion to the operating shaft, by making the driving shaft, or the part of it carrying the cogs which are to mesh with the cogs of the operating shaft, movable up and down so as to allow its cogs to pass from the upper to the lower side of the cogs of the operating shaft. This is exactly what defendants have done in their construction now before the court and alleged to constitute an infringement of the complainant's patent. To do this they have enlarged the operating shaft and grooved it above and below its cogs so as to furnish a road for the inner end of the driving shaft to traverse, and thus effect complete and perfect meshing and the proper transfer of the cogs of the driving shaft from the one side of the cogs of the operating shaft to the other. They have jointed the driving shaft so its inner end carrying the cogs will move up and down in a slit or mortise in the frame, and thus, instead of the cogs on the operating shaft moving up and down at the proper moments of time, each two revolutions of the driving shaft, the cogs on the driving shaft move up and down, or are carried up and down with the pivoted or hinged end thereof. If there is anything patentable in Schroeder's claim 1, in suit, any conception that entitled him to consideration, it has been appropriated in the construction of these defendants. There is, however, quite a difference, several differences, in the means employed for carrying the idea into effect. In Schroeder the cogs of the operating shaft, and carried by it, move up and down with the sleeve or cylinder, which is the means employed for transferring the cogs from the one position to the other without moving the operating shaft up and down. Such a movement of the operating shaft would interfere with and perhaps destroy the effectiveness of the device in a washing machine. Schroeder, the cogs of the driving shaft have no motion up and down or from side to side, except as they revolve with the shaft. This driving shaft simply revolves. In defendants' device there is no sleeve or cylinder on the operating shaft. The cogs of the operating shaft are, or may be, integral with it. There may or may not be two rows of cogs. No part of the operating shaft moves up and down. But in defendants' device, the driving shaft being jointed and pivoted and

In

the frame provided with the slit or mortise, a vertical movement of its cogs at the proper time is permitted, and the result is the same as in Schroeder. It is entirely immaterial to the effectiveness of the device which set of cogs has the vertical movement. One or the other must have it. The law of movement is the same in both devices. The mechanical construction differs. That the one is the equivalent of the other cannot be doubted. But in a patented device which belongs to an old art and is for an improvement merely we are to find what the patentee has claimed and described and what is covered by that claim. If his improvement resides in improved means for accomplishing a given result, and he has specifically described and claimed those means, he cannot claim all means for attaining the result. Others may use the old means, or come into the field of improvement and describe and claim and have a patent for different means, if they disclose patentable invention. It has been held that complainant's patent shows, describes, and claims a patentable improvement in means for accomplishing a given result. In this I have concurred heretofore, and that decision was not appealed from. Benbow-Brammer Mfg. Co. v. Heffron Tanner Co. (C. C.) 144 Fed. 429.

In Brammer v. Schroeder, 106 Fed. 918, 46 C. C. A. 41, the Circuit Court of Appeals, Eighth Circuit, affirming the validity of claim 1 of this Schroeder patent, pointed out wherein Schroeder's invention resides, the principle of his invention, and wherein it differs from the prior art. I quote:

"Now, what was the principle of Schroeder's invention? What was the advance in the progress of the art which his combination marked? What was the peculiar combination of devices which distinguished his from all prior machines? It was the combination of the sliding cog-bearing cylinder, by which alone the reciprocating rotary motion was imparted to the operating shaft, with the old and familiar elements of his combination. The history of the prior art has been searched in vain for any device or machine in which a sliding actuating cylinder on the operating shaft, provided with cogs or cogwheels adapted to mesh with those of the driving wheel, is disclosed. The use of such a sliding cylinder to impart motion to the shaft, in combination with the other parts of this machine designated in the first claim of this pat ent, was new in the art; and the facts that its usefulness is not denied, and that the appellant has seen fit to depart from the many devices open to his use, and to adopt that of the appellee, strongly indicate that it marks a distinct and useful advance in the progress of this art. *** It is plain that the cog-bearing, actuating, sliding cylinder was the element of this combination which embodied its principle and distinguished its mode of operation from those which preceded it. This principle has been appropriated by the appellant. He has adopted this new mode of operation. He has placed in his machine this sliding cylinder, by which alone motion is imparted to the operat ing shaft. He has placed upon that cylinder two rows of cogs, which extend at an angle to the cylinder and mesh with the pinion of the driving shaft. These two rows of teeth are simply the double row of Schroeder separated into two parts and placed facing each other on either side of the pinion of the driving shaft. The two rows of Brammer and the double row of Schroeder perform the same function, operate upon the same principle, and produce the same effect. They mesh with the driving pinion, and by this means revolve the cylinder and its inclosed shaft alternately in opposite directions."

But in those cases the infringing devices differed from the one complained of here. In both the infringing device had a cylinder described in Brammer v. Schroeder, supra, as follows: