to be thrown into and out of engagement with the loose gear; a system of bell-crank levers pivotally attached at their angles to the sleeve; a collar or block fixed relatively as to movement between the shaft and sleeve, said block forming a fulcrum for one arm of each of the levers, and means for operating the levers to move the sleeve; said means comprising a threaded extension of said shaft, a hand-wheel or nut working thereon, and connections between the bell-crank levers and said hand-wheel."

The sixth claim mentions the guard flange, 15, as one of the elements of the combination covered by the patent, but this element or part is not mentioned specifically in the other claims.

The patented device seems to be simple, compact, effective in operation, and especially useful in connection with gas engines, in which class of engines the crank shaft must acquire considerable momentum before the load can be imposed which it is designed to carry. Up to July, 1901, about 500 friction clutches, made according to the specifications of the patent, had been manufactured and sold by the complain

ant.

The defenses to the action that have been interposed are want of patentable novelty and noninfringement. The second of these defenses, in our judgment, is without merit, as the lower court held. It will be observed at a glance that the patented device and the infringing device are very much alike, the one being almost a counterpart of the other. The only noticeable differences in the method of constructing the two clutches are these: In the complainant's clutch. the rotatable pulley, 2, is mounted directly on the shaft, I, while in the defendant's clutch the pulley is journaled on a removable collar which is keyed to the shaft. In both devices, however, the pulley is mounted on the shaft; the only difference being that, while in the one case the pulley comes in direct contact with the body of the shaft, in the other it comes in contact with a collar interposed between it and the shaft. The other difference in the two devices, to be noted, is the following: In the complainant's clutch what is termed the "threaded extension member," 10, is screwed into the end of the power shaft, and extends thence entirely through the hand wheel, II, carrying the collar block, 8, and the locking nut, 9. This method of construction the defendant has modified slightly; that is to say (referring to the drawing illustrating the defendant's device), the collar or fulcrum block is made in two parts, indicated by figures 8 and 9 in the drawing. The interior part is a collar borne by the shaft. The exterior part, 9, has a threaded engagement with the interior part or collar block, and corresponds very closely with the lock nut, 9, in the complainant's structure. In the defendant's device the threaded extension member, 10, is screwed into the exterior block, 9, and passes through the same, so that its end impinges against the end of the shaft, as indicated by the white rectangular space, 16, in the drawing. The threaded extension member carries the hand-wheel, II, to which the toggle arms are pivoted, as well as being pivoted to the collar block. The operation of the two devices is identically the same, and the means employed to accomplish the desired end are not substantially different. Both devices have a threaded extension member, a collar block, a cone-shaped friction sleeve to engage the loose pulley, a hand-wheel mounted on the extension member, and toggle arms pivoted to the hand-wheel and

to the collar block, by which the friction sleeve is pushed forward automatically into engagement with the loose pully. The defendant's expert is compelled to admit that, if the complainant's device possesses patentable novelty in view of the prior art, the differences which he points out in the methods of construction are not "patentable distinctions." In that view we fully concur, holding that, if the complainant's clutch is patentable, the defendant's clutch is an infringe

ment.

Turning then to the question of patentability, the structures upon which the defendant particularly relies to show that the complainant's clutch is not patentable, but a mere product of ordinary mechanical skill, are the clutches described in the following letters patent, namely, No. 566,508, issued to William Esty, August 25, 1896; No. 561,198, issued to Jesse H. Brown, June 2, 1896; No. 474,183, issued to Jacob Neuert, May 3, 1892; No. 370,118, issued to John L. Bogert, September 20, 1887; No. 520,528, issued to Edward L. Jones, May 29, 1894; and No. 301,012, issued to Jerome B. Secor, June 24, 1884. It is said that the clutches described in these patents are the nearest approach, which the prior art discloses, to the clutch invented by Hobart, and that of these the Esty clutch was and is the most suggestive. Cuts illustrating the several devices described in the lastmentioned patents will be found on the opposite and succeeding pages. Referring thereto, it will be observed that none of the clutches there described were designed to be placed on the end of a shaft, for which purpose the Hobart clutch was especially constructed, nor can they be so placed. On the contrary, all the clutches to which reference is made, except the Secor clutch, are manifestly designed for other purposes. Thus, the Esty clutch, on which most reliance is placed, was designed to connect two independent line-shafts so as to form one continuous shaft, while the Neuert, Bogert, Jones, and Brown devices are countershaft clutches. The Secor device is a "pin and screw" clutch, especially designed to be used on sewing machines. Now, it may be that the several elements that were combined by Hobart in constructing his clutch can be picked out of the several devices referred to by the defendant, but the particular combination of parts. which he made is not found in either of the prior patents, nor, as we think, was the combination thereby suggested. Even if it be conceded that the individual elements composing the combination are to be found in the prior art, yet, to make the selection of these parts from the prior art, and to combine them, as Hobart did, so as to produce a clutch which is at the same time, simple, compact, effective, and useful, required, as we think, more than ordinary mechanical skill. The officials of the Patent Office, with the prior art before them, so found, and granted a patent. This action on their part creates a presumption of patentable novelty, which presumption can only be overcome by clear proof that they were mistaken, and that the combination lacks patentable novelty. Cantrell v. Wallick, 117 U. S. 689, 695, 6 Sup. Ct. 970, 29 L. Ed. 1017; Coffin v. Ogden, 18 Wall. 120, 124, 21 L. Ed. 821; Streator Cathedral Glass Co. v. Wire Glass Co., 38 C. C. A. 573, 579, 97 Fed. 950; Fraim v. Keen (C. C.) 25 Fed. 820; Osborne

v. Glazier (C. C.) 31 Fed. 402. After a careful consideration of all the clutches to which our attention has been directed, for the purpose of establishing the defense of want of patentable novelty, we are not only not satisfied that the defense has been made out, but are rather disposed to believe that some of the claims of the Hobart patent (particularly the third, fourth, and fifth) cover a meritorious invention, and that the complainant is entitled to protection as respects the invention described in those claims. We are not satisfied that the sixth claim of the patent, which includes as an element the "guard flange," can or ought to be sustained. It cannot be sustained except by reading into it a feature of construction that is fully covered by other claims, and this we do not feel disposed to do. This claim being rejected as invalid, and no disclaimer having been filed before the suit was brought, under section 973 of the Revised Statutes [U. S. Comp. St. 1901, p. 703], the complainant is not entitled to recover his costs. Metallic Extraction Co. v. Brown, 49 C. C. A. 147, 150, 110 Fed. 665, 668, and cases there cited.

It is accordingly ordered that the decree of the lower court be reversed, and that the cause be remanded to that court, with directions to enter a decree in favor of the complainant, awarding an injunction. as prayed for in the bill as respects the claims of the patent above specified.

(123 Fed. 85.)

RUBBER-TIRE WHEEL CO. v. VICTOR RUBBER-TIRE CO.

(Circuit Court of Appeals, Sixth Circuit. June 2, 1903.)

No. 1,169.

1. PATENTS-INVENTION-RUBBER TIRE WHEELS.

The Grant patent, No. 554,675, for a rubber-tire wheel, is void for lack of patentable invention.

Appeal from the Circuit Court of the United States for the Southern District of Ohio.

Paul A. Staley and Border Bowman, for appellant.
H. A. Toulmin, for appellee.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

LURTON, Circuit Judge. This is a bill to restrain infringement of patent No. 554,675 to A. W. Grant, dated February 18, 1896, for improvements in rubber-tired wheels. The defense was that the invention was void for want of patentable novelty, anticipation, and noninfringement. Upon a final hearing upon pleadings and evidence the bill was dismissed upon the authority of Goodyear Tire & Rubber Co. et al. v. Rubber-Tire Wheel Co. et al., 53 C. C. A. 583, 116 Fed. 363. The parties not being the same, the former opinion would not absolutely preclude this court from renewing the inquiry into the validity of the Grant patent.

But an additional obstacle to a reconsideration of the merits of the question is found in the fact that the Supreme Court has since.