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upon itself close against the jamb and leave the gateway substantially free. The claim is for:

1. A gate for hallways and other places, consisting of a series of npright pickets, and a series of cross and connecting braces or bars pivotel to the pickets at two or more central points, and having upper and lower points of connection arrangeil to slide vertically within or upon the pickets, whereby the latter are adapted to slide upon a base-support across the gate-opening without changing their parallelism or their positions vertically, substantially as described, for the purpose specified.

The following drawing, being Fig. 1 of the patent, shows the kind of gate more readily than would an extended description :

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The defendant has also a patent for a folding gate, No.358,956, dated March 8, 1887. The particular gate complained of is slightly modified from his patent and is shown below:

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The modification consists in having the central and outer end uprights supported from the base instearl of being lung from a trans.

verse rod above. The circuit judge held that such a gate did not intringe the first claim of complainant's patent. To determine that question it is first necessary to settle what construction is to be put upon the patent. An examination of the art shows that the invention of Maddox and Humphries was not of that primary, pioneer, or fundamental character wbich admits of a broad and comprehensive interpretation of its claims. Folding gates were old. Some of them consisted mainly of upright bars or rods, called "pickets,” connected together so as to admit of their being moved back against the door jamb or extended therefrom. Others consisted mainly of diagonal intersecting rods so arranged as to form the movable lattice-work known as a "lazy-tongs.” In some instances the support for the outer end rested on a base; in others it was suspended from above.

The defendant conteads that the patent in suit must be restricted to a gate in which the pickets are the characteristic feature and that it is not infringed by his own gate, in which the lattice-work or lazy-tongs

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is the characteristic feature. In both gates—in fact, apparently, in all folding gates—the upright next the inner jamb is in no proper sense a picket at all. It is fastened rigidly, has no movement of its own, and is practically only the permanent support pon which the mechanicallyoperating combination of lazy-tougs, cross-braces, bars, pickets, or what not, is bottome. It has no different function from that of a gate-post itselt, into whiclı, in the older varieties of lazy-tongs gates, (Merritt, 6,9.57; Bresee, 60,678,) the inner end of the lattice work was inserted. Lattice or lazy-tongs gates had also before the patent in suit been provided with an upright at the outer end so pivoted to the lazy-tongs that at one point the pivot had no vertical motion, while at the other points tlie vertical motion incinceli by the operation of the gate was provided for by allowing the pivots to play in slots in the upright. Such devices are shown in Frazee, 172,852, and in Suead, 67,143, the above sketch being Fig. 1 of the last cited patent.

The fixed pivots in the jamb-upright and in the movable or sliding upright FF' are in the same horizontal plane, and inspection of the movement of a lazy-tongs when in operation shows that if it is to be fastened to objects which are themselves to have no vertical motion and is also to be given free play the fixed pivots (i. e., fixed in the sense of having no vertical motion) must be located in the same horizontal plane. Looking at the Snead gate, it is manifest that the greater the space it has to close the weaker it will be, having nothing to support it when open except at the ends. The gate of defendant meets this difficulty by means of a central support to which the lazy-tongs are pivoted by a fixed pivot in the same horizontal plane as the fixed pivots at the jamb and outer movable upright, while the other connec. tions between the lazy-tongs and the central upright are made to slide vertically, thus avoiding any vertical motion in the upright itself.

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In the complainant's gate the central upright or pivot is arranged in like manner, the plane or fixed pivots being located centrally in coinplainant's gate and at the bottom in defendant's. In this device of a central upright support for a folding gate arranged to be pivoted to the lattice-work in the same way as the outer upright-namely, with · the fixed pivot in the same horizontal plane as is the pivot which fastens the lattice-work to the jamb-upright-it is hard to see any patentable invention. It is not necessary, however, to pass upon that point. The complainant has no claim for that single simple improvement, and a brief review of the history of his application shows that the claim here relied on is only for a combination, which his assignors have specifically described, and to which descriptiou they must, in view of the state of the art, be closely confined.

In 1877 Maddox, one of the patentees of the patent in suit, took out a patent for a folding gate, No. 191,984, shown above.

It consisted of a series of sliding vertical bars linked together in two or more lines of connection by knuckle-joints with stops, the whole being arranged to be drawn out from the wall so as to fill up the space in the hallway and fold up close together again against the wall into a small compass. In the specification of the patent in suit it is stated that the invention of the patentees, Maddox and Humphrieshas for its object to improve the gate for hallways and other places for which the patent (last above referred to] was granted to Maddox, (which patent) consists in a series of vertical pickets or bars connected *** by knuckle-joints with stops.

In the specification as given in their original application they state that their improvement consists incombining a series of cross and connecting braces with the sliding pickets, instead of employing the knuckle-joints, for the purpose of strengthening and bracing the gate during its movements, * * * and in adapting the pickets to be held parallel to each other during their movements in opening and closing the gate.

The original application was rejected on reference to the Maddox gate, and in part on reference to patent to Powell, No. 138,527. This last-named patent shows a folding gate consisting of a single row of lazy-tongs with a series of upright rods at each intersection of the arms composing the lazy-tongs, the function of the uprights being to act as a support to the gate when extended, and also to obstruct the open space between the gate and the ground. Powell's pickets, however, were not so affixed to the gate as to be vertically immovable dur. ing the operation of opening and closing. In reply to this rejection Maddox and Humphries called the attention of the Patent Office to the defect of the Maddox gate-viz., that the knuckle-joints were effective to hold the pickets apart only when the gate is opened to its fullest extent, the pickets at other times falling against each other or spread. ing apart—and pointed out how their improvement of cross-braces counected with every picket of the series, so as to keep them parallel at all times and without vertical motion, overcame that defect, explaining that the brace bar H of the Maddox patent could not perform the functions of their cross and connecting braces” because (although connected with the jamb-picket and outer picket) it was not connected with the intermediate pickets. Iu reply to the reference to Powell they say:

In Maddox and Humphries's gate the main feature consists in the vertical sliding pickets, the other devices being subordinate and adapted as one means for moving the pickets. In Powell's gate the main feature is the lazy-tongs, the vertical rods • * • being subordinate and used to prevent the gate from bowing when extended and incidentally to partially obstruct the space under the extended gate. * * * The rods (of Powell] are not sliding pickets, but incidental devices for supporting the gate on a broad base when extended. Maddox and Humphries construct their gato mainly of sliding pickets so arranged as to slide ou the ground in a horizontal plane, eto.

The applicants also changed the specification touching the statement of their improvement from the form above quoted to the following:

Our improvements * * * consist, first, in so combining a series of cross and connecting braces or bars with the pickets-instead of employing knuckle-joints as to strengthen and support the gate and adapt it to slide upon its support without changing the vertical position of the pickets, and at the same time preserving their parallelism when the gate is opening and closing.

Manifestly, the gate” which is here spoken of as “sliding upon its support” is the picket gate depicted in the drawings annexed to the original Maddox patent and to the patent for the improvement of Maddox and Humphries. Inspection of the defendant's gate shows that it is essentially not a picket gate, but a lazy-tongs gate with a single central support, and therefore it does not infringe.

Decree of Circuit Court is affirmed.

(U. S. Circuit Court-Northern District of Now York.) FULLER & JOHNSON MANUFACTURING COMPANY et al. v. STEVENS

et al.
Decided December 22, 1893.

68 0.G., 1025.
1. STARKS AND FELLAND-MACHINE FOR TRANSPLANTING PLANTS-VALID.

Claims 5 to 8, inclusive, of Letters Patent No. 486,200, granted November 15,

1892, to Starks and Felland, examined and Held to be valid. 2. BEMIS-SAME-SAME.

Claims 3, 4, and 6 of Letters Patent No. 423,724, and claim 5 of No. 423,723, granted March 18, 1890, to Bemis, examined and Held to be valid. Mr. 0. H. Duell for the complainants.

Mr. J. H. Whitaker for the defendants. COXE, J.:

This is an equity action for the infringement of three Letters Patent, Nos. 423,723 and 423,724, granted March 18, 1890, to Frank A. Bemis, and No. 486,200, granted November 15, 1892, to Starks and Felland, for improvements in transplanters.

The claims iuvolved are the fifth claim of No. 423,723, the third, fourth, and sixth claims of No. 423,724, and the first eight claims of No. 486,200.

The patents relate to improvements in machines for transplanting tobacco and other plants by means of which the operators, seated on the machines, place the plants in the furrows made by the plow. The roots are then watered, the furrows filled up, and the earth pressed about the roots. The only manual labor required is placing the plants in the furrow. The rest is automatic. The machines are useful and popular. About two thousand machines embodying the Starks and Felland improvements have been sold.

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