of the frame. When this frame is used by setting it on the scaffold broadside to the building, putlogs may be laid in and held by the bottom of the frame, as is contemplated by the Henderson patent, and, when in such position, the Henderson claims in issue are readable upon such structure, unless it may be said that the bottom of this Whitney frame, by being bolted to the sides, is not in effect the continuous U-shaped bar of Henderson. But in so far as the function of this bar is to support, by laying therein, the putlogs, it is not of essential materiality whether the continuousness of the frame is effected through one or several pieces of metal, or whether the corners are rounded or rectangular. Inasmuch as this bottom affords support extending around and holding the putlog laid therein, it does not seem important whether it is the precise bar described by Henderson, or its manifest equivalent, capable of performing this same function in the same manner as in the Whitney scaffold hoist, if otherwise all the elements of Henderson's combination appear. It was this same Whitney scaffold hoist whose manufacture and sale for the alleged purpose of its use in a like combination was the contributory infringement charged in the above-named Nebraska suit; and the Circuit Court of Appeals there further found that in such cases where the Whitney scaffold hoist having the drum was shown to have been made, and sold to be set broadside of the building, and used in pairs. with putlogs laid therein after the manner of the combination of the Henderson claims, it contributed to the infringement thereof, and should be dealt with accordingly.

It was sought to show by the evidence that the Whitney scaffold hoist was intended to be used, and in most instances was used, by setting it with its hoisting drum at right angles to the building, and employing the double angle iron putlogs bolted together, with the bolts resting on the lower crosspiece of the frame, as has been referred to in connection with the Murray hoist on the Blackstone Hotel job. While there was evidence that these frames and drums had been so used, there was also evidence of their use broadside of the building with wooden putlogs laid therein, as in Henderson, and some evidence which would warrant the conclusion that in some cases it was intended or expected that they would be so used broadside of the building, with putlogs. In such cases, if intended by appellants for such use, the alleged contributory infringement appeared, and notwithstanding there is no evidence of any manufacture or sale of the Whitney scaffold hoist for a period of nearly two years next before the filing of the bill herein, relief was properly granted for whatever of contributory infringement there appeared through evidence of the intended manufacture and sale of the Whitney scaffold hoist with hoisting drum, where intended by appellants for use broadside the building, with putlogs laid therein, as in Henderson, and due restraint against future offending in this respect was likewise properly decreed.

3. The Little Wonder machine shows a pair of side bars or rods about six inches apart with cross rods bolted to top and bottom, forming a rectangular frame, between the uprights of which there is a complicated mechanism having series of oppositely arranged toothed

jaws operated by a lever. Below is a cut of "Plaintiff's Exhibit 20," which purports to be a photograph of a pair of the Little Wonders in actual use equipped with a putlog.

The cables shown are attached to outriggers, and may hang from the top to the bottom of the wall to be served by the scaffold. Moving the lever of the machine up and down, with a pump-handle motion, causes the mechanism alternately to release, clutch, and hold the cables, and thereby raising or lowering the machine, very much as a man would climb a rope, leaving the frame firmly held to the cable at any desired point. In this mechanism there is no drum whatever, or anything like a drum. The cables remain suspended their entire length as they are hung from the outriggers, and there is no winding, and no occasion for any drum. In the use of the Little Wonder there is thus omitted the element of the drum as included in the Henderson claims.

The charge of infringement is based on the identity of the frame of this machine with Henderson's U-bar frame, the equivalency in the combination with the Little Wonder mechanism to the specified drum machine, and the manufacture and sale of the Little Wonder for intended use in scaffolds after the manner of the Henderson claims. The ends of this putlog have holes to accommodate the cables which must pass through. The putlog appears too wide for the frame, and seems. to be cut out to accommodate the side rods. Indeed, the evidence shows that in many, if not most, instances there are two more holes in each end of the putlogs for the side rods to pass through, and that they are placed in position by first unbolting and removing the lower cross rod, putting the side rods through the holes made for them, and replacing and bolting the lower rod. In this wise the putlog is held.

absolutely, though not necessarily rigidly. While Henderson's claims do not, except inferentially, indicate that the putlogs should not be fastened to the frame, it appears from the file wrapper that after rejection of his claims the patent was finally granted partly on the representation by Henderson "that the connection between the U-shaped bar and the crossbeams is absolute and positive and no rivets, bolts or other auxiliary means are employed," from which it is inferable that his putlogs were held by the U-bar alone without fastening of any kind such as the rods and cable may be said to constitute in the use of Little Wonder. While this alone might not patentably distinguish the two combinations, it is well to be considered in connection with other differences.

It is contended that, while a drum is included as an element of the combination in each of the Henderson claims, yet this describes only the hoisting mechanism of the combination, and that any other hoisting mechanism would be its mechanical equivalent in the combination. Any substantial patentable advance shown in this patent bears a particular relation to the drum mechanism of the claims, not to be found in its relation towards the other mechanism under consideration. As has been pointed out, the drum construction is necessarily of considerable width to accommodate a drum wide enough to hold the cable to be wound thereon. The entire absence of the drum makes possible the comparatively extreme narrowness of the Little Wonder machine, rendering it practically immaterial in this respect, whether it is set at right angles or broadside to the building. If set at right angles, it would occupy scarcely more of the width of the platform than the Henderson machine set broadside.

The same question of infringement of these claims by this use of the Little Wonder was very recently before the federal court in Nebraska. The District Court, in litigation between appellee here and Whitney, involving the same alleged infringement held it to infringe, but on appeal to the Circuit Court of Appeals it was held, in an exhaustive opinion filed April 2, 1917 (243 Fed. 180, C. C. A. —), there was no infringement of Henderson, in any use of the Little Wonder, whether set at right angles or broadside. It is our view that the Little Wonder is not the mechanical equivalent of the drum mechanism stated in the claims in issue as an element of that combination, and that through the entire absence of the drum a scaffold equipped with the Little Wonder does not respond to the Henderson claims, and thus does not infringe.

We conclude that the decree of the District Court is correct in finding the claims valid, and that there was contributory infringement of claims 1 and 3 by appellants, in making or selling the Whitney scaffold hoist, in those cases where made or sold with intent or knowledge on the part of appellants that they would be used in scaffolds in the manner of the Henderson patent as above pointed out, but that the decree is erroneous in finding infringement in the manufacture or sale or in any use of the Little Wonder machine.

The decree of the District Court is therefore reversed, with direction to enter a decree in accordance with the foregoing views; appellants and appellee each to pay half the costs of this appeal.

JAMES CLARK, JR., ELECTRIC CO. v. UNITED STATES ELECTRICAL TOOL CO. et al.

(Circuit Court of Appeals, Seventh Circuit. August 10, 1917.)

PATENTS

No. 2266.

328-INFRINGEMENT ELECTRIC DRILL.

The Willey patent, No. 750,744, for an electric motor driven portable drill, held not infringed, on evidence showing that the alleged infringing device was in public use more than two years before application for the patent was filed.

Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.

Suit in equity by the James Clark, Jr., Electric Company against the United States Electrical Tool Company and the Schneider Sales Company. Decree for defendants, and complainant appeals. Affirmed. For opinion below, see 217 Fed. 252.

George L. Wilkinson and Thomas F. Sheridan, both of Chicago, Ill., for appellant.

Samuel E. Hibben, of Chicago, Ill., for appellees.

Before BAKER, MACK, and ALSCHULER, Circuit Judges.

BAKER, Circuit Judge. Appellant's bill for alleged infringement of patent No. 750,744, January 26, 1904, to Willey, for an electric motor driven portable drill, was dismissed for want of equity.

Defenses were lack of invention, noninfringement, and prior knowledge and prior use by appellee's president, Smith.

It is unnecessary to consider separately the questions of patentable novelty and infringement, because we find that the drill, manufactured and sold by appellee and alleged to be an infringement, was independently devised and perfected and publicly used by Smith, appellee's president, more than two years before Willey filed his application, March 5, 1903.

Smith, according to the records of the Wadsworth Watch Case Company of Dayton, Ky., was in charge of that company's steam plant and electrical apparatus from July 19, 1900, to October 27, 1904. `Prior to that he had had 20 years' experience with electric apparatus, particularly motors.

A distinguishing feature of the drill of the Willey patent is that the chuck for the tool is not at the end of the armature shaft, but is carried on an offset shaft which is rotated by the armature shaft through reduction gears. Before entering the Wadsworth Company's service, Smith had begun the construction of an electric drill with the chuck at the end of the armature shaft. He testified that he did not finish the drill of that type; that, shortly after he went to the Wadsworth Company, he began to organize the motor, casing and other materials he already had, together with additional materials purchased for cash or picked from scrap, into an electric drill of the type now made by

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 245 F.-48

appellee, with the tool shaft offset from the armature shaft; that he completed this drill in the latter part of 1900; that he and others during 1900 and 1901 publicly used it as a completed and efficient drill; and that he began endeavors to procure financial assistance to make and market the tool. Appellee introduced an exhibit which Smith identified as the original drill completed by him in 1900. Its material and workmanship evidence a patchwork origin.

By 1904 appellee was in the market, competing for trade. Appellant filed its bill in 1913. Appellee's depositions were taken in 1914. This lapse of ten years has deprived appellee of some witnesses named by Smith, and possibly of others forgotten, and has forced the attending witnesses, who undertook to corroborate Smith and identify the exhibit, to search the dregs of memory unfortified by records that might have been available, if suit had promptly been brought. This testimony, while coming from apparently disinterested and credible witnesses and quite persuasive in its character, does not alone come up to the required standard. But there remain one witness and one record whose reliability is certain.

Thomas McGovern was an experienced and competent electrical machinist. He identified the exhibit as either the drill itself or one identical in construction, principle, and operation with the drill he saw in Smith's possession and use while they were both in the Wadsworth Company's service. On the record he stands as a disinterested and reliable witness. No attempt was made to impeach his character. Nothing in the record contradicts his testimony; and the somewhat hazy testimony of other witnesses, above referred to, tends to corroborate it. Doubt is sought to be injected by appellant's suggestion that McGovern confused the exhibit with Smith's first work on a drill having the chuck at the end of the armature shaft (which Smith testifies he had abandoned before entering the Wadsworth Company); but the two types are so distinctive in construction and operation that it is incredible that an expert electrician and machinist should confuse the one with the other.

McGovern's recollection concerning dates was fortified by the unquestioned records of the Wadsworth Company, showing that he began service in July, 1900, and quit January 17, 1901. From then till after this suit was instituted he had no opportunity or occasion to see or know of Smith and his drill.

As triers of the fact we are convinced beyond any reasonable doubt that Smith built and used the alleged infringing structure in the latter part of 1900, more than two years before Willey applied for his patent. The decree is affirmed.