MERROW v. SHOEMAKER et al. (Circuit Court, E. D. Pennsylvania. December 5, 1893.) No. 13. 1. PATENTS-ANTICIPATION-CROCHETING MACHINES. An invention of intermittent feeding mechanism, combined with a crocheting machine, to produce an ornamental scalloped border, is not anticipated by sewing machines having intermittent feed mechanism, which could not be made available for the purpose accomplished by the crocheting machine. 2. SAME ESTOPPEL-INTERFERENCE PROCEEDINGS-STIPULATION. A stipulation in an interference proceeding that the preliminary statement of one of the parties thereto should be accepted as evidence on the issue of priority, that no additional evidence should be received, and that the matter should be decided upon this evidence alone, without argument, is not an admission by the other party; and the matter having been decided against him, the claim involved stricken out, and a patent issued for what remained, he was not estopped from claiming priority therefor. 3. SAME-INFRINGEMENT. In a crocheting machine, in which several stitches are to be taken in the same place, a construction which avoids useless horizontal reciprocations of the feed dog during the formation of each group of stitches, without affecting its function of advancing the material after the group is completed, does not avoid infringement. 4. SAME-PARTICULAR PATENT, The Merrow patent, No. 428,508, for a crocheting and overseaming machine, is not anticipated, and is entitled to a liberal construction. In Equity. Suit by Joseph M. Merrow against John Shoemaker and others for infringement of a patent. Decree dismissing certain defendants, and for complainant as to others. Church & Church, for complainant. # # * con DALLAS, Circuit Judge. This is a suit in equity brought by Joseph M. Merrow against the several defendants named, for alleged infringement of letters patent No. 428,508, dated May 20, 1890, issued to the complainant, for "crocheting or overseaming machine." The object of the invention, as stated in the specification, "is to produce new and improved ornamental crocheted finish or border by machinery upon fabrics in general, but particularly upon knitted fabrics, which have heretofore been ornamentally finished by hand, by means of the improvements, sisting in new mechanism and new combinations of mechanism." The invention "relates to feeding mechanism, and new and useful combinations therewith." The only claims involved are as follows: "(1) In a machine of the character specified, the combination of the following mechanisms: A stitch-forming mechanism provided with a thread carrier and a looper, the latter co-operating with the thread carrier to engage the thread on alternately opposite sides of the fabric, and draw loops thereof to or beyond the edge of the fabric, and interloop the ends of said loops, and an intermitting feed mechanism engaging the fabric to advance the latter only after the formation of two or more complete stitches by the stitch-forming mechanism, substantially as described. (2) The combination, in a machine such as described, and with a reciprocating thread-carrying needle, a looper engaging the needle thread alternately on opposite sides of the fabric to draw and interloop said thread along the edge of the fabric, and a fabric-feeding device operating upon the fabric to advance the latter only after several reciprocations of the needle, of a system of driving mechanism, substantially such as described, connecting the needle looper and feeding mechanism in a manner to cause the feeding devices to operate upon the fabric to advance the latter after a series of stitches have been formed, and while the needle is withdrawn from the fabric, and a loop of the thread held by the looper. (3) In a machine such as described, and in combination with a stitch-forming mechanism comprising a thread carrier and a looper co-operating to form stitches around the edge of the fabric, a reciprocating feed dog. held in inoperative relation to the stitch-forming mechanism during the formation of a series of stitches, and brought into operative relation with the fabric at intervals occurring between successive series of stitches, substantially as described. (4) The combination, in a machine such as described, and with a thread carrier and a looper co-operating therewith to form loops around the edge of the fabric and interloop said loops, of a reciprocating feed dog held normally from contact with the fabric during the formation of a series of loops by the thread carrier and looper, with mechanism for elevating said feed dog into contact with the fabric to feed the latter after a cluster of loops has been formed." These claims are free from ambiguity. They are all combination claims. Stitch-forming mechanism adapted to form stitches around the edge of the fabric, and feeding mechanism adapted to advance the fabric only between successive groups of two or more stitches, are elements of each of them. In the first, the function of the intermitting feed is stated, in general terms, to be "engaging the fabric to advance the latter only after the formation of two or more complete stitches by the stitch-forming mechanism;" the second includes the first, and adds "a system of driving mechanism connecting the needle looper and feeding mechanism in a manner to cause the feeding devices to operate upon the fabric to advance the latter after a series of stitches has been formed, and while the needle is withdrawn from the fabric, and a loop of the thread held by the looper;" the third limits the feeding mechanism to "a reciprocating feed dog held in inoperative relation to the stitch-forming mechanism during the formation of a series of stitches, and brought into operative relation with the fabric at intervals occurring between successive series of stitches;" and the fourth claim is limited to the combination with the stitchforming mechanism of a feed dog reciprocating both horizontally and vertically. In support of the defense of anticipation, 14 patents have been placed in evidence, but only 6 of them are referred to in the defendant's brief; and to these latter, therefore, I have confined my attention. Taken separately or together, they do not disclose the invention covered by the patent in suit. As appears from the analysis which has been made of the claims in question, the gist of the invention claimed by the complainant is the combination of the stitch-forming mechanism, by which stitches around the edge of the fabric are made, with a feed mechanism operating to advance the fabric as, and only as, a series of stitches shall have been previously formed, so as to expand the outer ends of the stitches, and shape them into scallops properly spaced, whereby an ornamental border upon the material operated upon is "oduced. By the means stated, the complainant attained this object; but in none of the patents set up are the same or equivalent means described, nor could the same, or substantially the same, result be achieved by any means which any or all of them disclose. The patent first mentioned in defendant's brief is that of William C. Hicks, No. 29,268, but upon examination it clearly appears that it does not conflict with that of the complainant. It is for an "improvement in sewing machines," a "mode of sewing or uniting cloth by a succession of differential chain stitches" to prevent ripping. The formation of an ornamental border around the edge of the fabric is not contemplated, and the feed movement occurs, not between groups of stitches, but after the formation of each and every separate stitch. With reference to the remaining five patents insisted upon, the defendants' counsel asked their expert to state what they "show to be old, in so far as the action of feed is concerned." He replied: "The peculiarity of these feeds is that intermissions occur in their action, so that the sewing mechanism may make several stitches or loops without any motion of the fabric, and therefore locate more than one stitch or loop at the same point in the lengthwise direction of the fabric, and produce ornamental effects by such multiplication or duplication of stitches." My own investigation does not incline me to accept the opinion embodied in this answer as wholly and precisely correct; but, be this as it may, neither the question nor answer covers the relevant matter. The patents referred to all relate, to sewing machines, and not to crocheting mechanism; and the witness was not asked, and did not say, whether the intermissions which he testifies occur in the action of the feeds were, or could be made, available to produce the complainant's ornamental border. I am satisfied that they neither were nor could be, and the fact is that, in each instance, the only result attained or attainable is essentially different from that produced by the organism of his patent. The answer alleges prior knowledge and use by a number of persons, but the argument upon this defense has dealt only with asserted use by Thomas P. Cope & Bros. and by George D. Munsing. It is not necessary to consider the question of the identity of the Cope-Morley machine or of the Munsing machine with that of the complainant. The point may be fully disposed of upon the question of priority of invention. The complainant contends that he disclosed his invention, and so described its details that it was fully understood by the persons to whom he disclosed it, prior to June 16, 1887. If so, he has established his date of invention as not later than that day, and the question of anticipation must be solved with reference thereto, provided that he was duly diligent in filing his application for a patent, and in constructing his machine. The subject of diligence, however, presents no real difficulty; and I may dispose of it at once by saying that the evidence is amply convincing that, if the date of his invention is as claimed by the complainant, he proceeded, with respect both to his application and the construction of his machine, as speedily as, under the circumstances of the case, was reasonably practicable. As to the complainant's date, a fact which is indisputable, and quite important in its bearing, is that on June 16, 1887, his mill was destroyed by fire. There can be no doubt that for some time before this fire occurred he had entertained the thought of combining with the then existing plain crocheting machine some device to adapt it for making the scallop finish in imitation of and substitution for that class of border as theretofore produced by hand operation of the ordinary crochet needle. He had then, certainly, also conceived the idea of accomplishing this by advancing the fabric only after a group or series of stitches had been formed to or beyond its edge by the stitch-forming mechanism then in use. In brief, he had distinctly in mind at that time the end which, in his specification, he afterwards declared to be the object of his invention, and also the method which is carried on in its practice. But had he then conceived and perfected the means-the combination of the stitch-forming mechanism with the peculiar feed mechanism-for which he subsequently obtained a patent? I have carefully examined and considered the evidence bearing upon this question, and have arrived at the conclusion that it must be answered in the affirmative. The proofs are too voluminous to be referred to at length, but a few extracts will suffice to indicate their general tenor and effect. The complainant testified: * "As a result of my experiments in the development of the scallop method, I had devised mechanism for producing this result, and when, in the fore part of the year 1887, I concluded to build the scallop machine, (the plain machine having met with encouraging success,) I determined to adapt the scallop mechanism to the plain crochet, machines we were then building; that is to say, I decided to utilize the principal parts of the plain crochet machine in building the scallop machine. ** I discussed this matter with my foreman, William M. Stedman, and made sketches of several styles of feeding mechanism for this purpose. I took the drawings which I had made for my plain crochet machine, and from which I had built this machine, and drew upon them the mechanism which I had decided to adopt. Q. How long before the fire did you make the pencil additions to the old working drawings? A. I cannot at this time definitely fix the date, but it was but a short time,-a matter of a few days." "I thought that there would be considerable money in this machine. I had worked up a considera ble trade in our plain machines, and I had got the special tools so far completed to build the plain machines with, and had designed my scallop machine so that the special tools which I had made would also be of use in building the scallop machine. I had taken the drawings which I had made to use in constructing the 1885 machine, and had drawn upon them the necessary changes that I had decided to make, or, in other words, the necessary parts for the scallop machine." William H. Stedman testified, in part, as follows: "Q. What, if any, steps were taken by Mr. Merrow during that period, before the fire, looking toward adapting the crochet machine to that kind of work? A. Conversations were frequently had as to the best mechanism to bring about a feed motion which would be adapted to the regular crochet machine, so as to make a scallop finish. Sketches were made of some plans, and freely discussed. Later on, Mr. Merrow, in putting in a new lot of castings, put in an extra number, as he said he wished to make a part of them into scallop machines. The drawings of the regular crochet machine were brought into the shop, and some parts of the scallop machine were penciled into this drawing to see about what changes were needed in the frame of FEDERAL REPORTER, vol. 59. the machine to adapt it to a scallop machine. ism of the regular machine was constructed so as to move the fabric each The feed mechantime the needle was raised out of it, and it was clearly understood by Mr. Merrow and myself that in order to produce a scallop finish the feed should be intermittent,-that is, the fabric be fed along only after several stitches were formed,-and all mechanical motions which would bring about an intermittent feed, that is, all that occurred to us,-were discussed, as to their relative merits, and their peculiar adaptation to the regular machine. The drawing of the regular crochet machine was brought in, and parts which would be needed in applying an intermittent feed to the regular machine were penciled in on the drawing, which was in ink, and necessary changes in the frame of the machine were discussed; and Mr. Merrow concluded. it would be better to use the regular frame for a few scallop machines, and attach the parts needed. as the sketches referred to, exhibiting the feed mechanism of the scallop Q. When did you last see the drawings, as well machine? A. I last saw the drawings of the crochet machine in the afternoon of June 15, 1887, which was the day before the shop was burned. I do not remember the date when I last saw the sketches of the feeding mechanism which had been made." The foregoing testimony is supported by that of other witnesses, and there is nothing to occasion any hesitancy in accepting it, except a single circumstance, which, upon first impression, apparently conflicts with it in one important particular. The complainant and Stedman having said that the drawings which had been exhibited by the former to the latter before the fire, and which it destroyed, had shown the complete mechanism for the scallop machine, a "reproduction" of those drawings, made by the complainant after the fire, upon being put in evidence on his behalf, was found to represent a multiplication of projections upon the cam plate for lifting the feed dog, fitted only to produce, where all the projections are used, the regular or plain, stitch. ancy has been explained and reconciled. But this seeming discrepbeen a commercial success, and it was deemed desirable to so The plain machine had construct the feed mechanism for the new machine as to adapt it, as said by the witness Stedman, "to making any kind of crochet work." The complainant testified: * "These drawings represent the feed mechanism for the scallop machine, as designed before the fire, and reproduced after the fire, for the purpose of carrying out our plan for building scallop machines. plain machine there was a circumscribed space for the feed mechanism, ** In the and this particular feed mechanism was especially prepared and selected from a number of others, as best adapted to occupy the limited space, and special form of the frame and other parts. objects I had in view in designing this feed mechanism was to make as One of the principal much of it as possible applicable to both the plain and scallop machines which we were about to build, and in pursuing this plan I arranged the parts so that the cam plate, X, which governed the vertical motion of the feed dog, could be changed to raise the feed dog at each reciprocation of the needle, or after a series of reciprocations. In the drawings, Fig. B, the cam plate is shown as provided with five projections or cams, numbered 1 to 5, and represents the arrangement which would be employed for the plain stitch, and by omitting four of the projections, or substituting a cam plate with but one projection, the same mechanism was intended to serve for scallop work, in which case the feed dog would be raised but once while the main driving shaft was making five revolutions, and the stitch-forming mechanism was making five complete stitches." Thus, and from other evidence, it appears that the cam plate exhibited upon these drawings, and which was designed with especial |