complainants. This pamphlet was widely circulated and admittedly the complainants knew of it. In July, 1893, the defendant, through its president, sent to the complainant corporation a letter, in which, among other things, is the following statement and appeal: Mr. WILLIAM BRACKEN, PHILADELPHIA, PA., July 27, 1893. President Consolidated Electric Storage Company, New York, N. Y.: DEAR SIR: I am favored with copies of your letters of 27th of February and the 24th of July, 1893, to Mr. George W. Pearson, president of the Metropolitan Railway Company, of Washington, D. C., wherein you state that the battery manufactured by The Electric Storage Battery Company, of Philadelphia, is a clear infringement of the Brush patents, and of which "there is no earthly doubt." By what authority do you say our battery infringes the claims of your Brush patent? Surely on the authority of no court, for you well know that no court has declared our battery to be an infringement, and although we have been, to your knowledge, openly engaged in manufacturing our batteries for some years, you have not down to this moment proceeded against us although threatening to do so for nearly eight months past. You apparently propose to dispose of our battery, and business without even resorting to the courts wherein such questions are usually determined. Unlike you, we have sufficient confidence in our position to submit the question to the courts empowered to consider and determine such questions, and there we invite you to meet us at once, and unless you do so, or discontinue your libelous statements against our battery, we will take such steps as we are advised are open to us to protect our interests. We are advised by our counsel and experts that our battery does not infringe any of the claims of your patents, and having confidence in their opinion, we propose to continue making and selling our battery, and shall protect and save harmless all users of them, not only as against any claim you may make, but against all claims from whatever source. Now, being advised of our intentions, we demand, in view of statements made in your letter to Mr. Pearson and other parties, that you proceed at once against us on a bill for infringement accompanied with motion of injunction so that the question of our infringement of your patents may be determined, and to that end we advise you, vis: We are a New Jersey corporation with a factory at Gloucester, in that State, where batteries are being manufactured daily, and we will at any time furnish yon with one of our batteries, at the usual price, accompanying same with a sworn statement of precisely how they are made with permission to use the same in any proceedings against us. We have, to avoid delay, authorized our counsel, Mr. John B. Bennett, Potter building, New York city, to accept service papers in our name and to aid you in every way possible to reach the courts at the earliest possible moment, and you can arrange with him either direct or through your counsel for one of our batteries and a statement of its construction. If you have confidence in your position you will, of course, accept our most reasonable proposition to proceed against us at once, and if you do not we hereby notify you that we shall proceed against you to protect our interests, holding you responsible for the damages resulting to our business by the making of statements and the sending out of such unfounded libelous letters as you have sent to Mr. Pearson. To this letter the complainants returned no answer beyond a mere acknowledgment of receipt and admittedly took no action toward the assertion of their claims until months after. In the meantime the defendants, assuming, as it cannot be denied they had reason to do, that no attack was to be made upon them, increased their capital stock $250,000 and proceeded to erect in addition to their existing factories a very extensive plant at a very large cost. It was not until 1894, months afterward, that this bill of complaint was filed. Realizing the necessity of making explanation of their delay, the complainants allege that it was caused, first, by their diligent searching for some purchaser of the defendants' storage-battery within the jurisdictional limits of the Circuit Court of the United States for the District of Southern New York, in which forum much of the previous litigation concerning the Brush and Faure batteries had taken place, and so avoid by the bringing of their suit in that jurisdiction some of the trouble and labor which would necessarily follow the commencement of a suit in this jurisdiction, and, further, that all the operations of the defendants were considered by the complainants to be simply tentative in the line of producing a practical commercial storage-battery and only an effort on the part of the defendants to pursuade the complainants to spend thousands of dollars in substantially a moot litigation to stop the making and sale or use of only a few batteries, and because the complainants believed the venture of the defendants was destined to be a failure and die a natural death. It is hardly necessary to say that such excuses do not justify the laches of which the complainants have been clearly guilty. If the rights of the complainants are now trespassed upon by the defendants, they were in like manuer trespassed upon more than four years ago, and the trespass, of which so loud complaint is made now, has been continuous. For reasons satisfactory to themselves the complainants, well aware of these continuous trespasses, chose to stand by without taking action looking to the vindication of their rights and the prompt punishment of the trespasser. The result of such inaction on the part of the complainants is found in the increased contribution to the capi. tal stock of the defendant corporation of hundreds of thousands of dollars and the expenditure of an exceedingly large amount of money in the erection of a greatly-extended plant. If, in fact, the rights of the complainants have been invaded by the alleged infringing acts of the defendants, it is scarcely an exaggeration to say that the dilatory conduct of the complainants in protecting their rights amounted to open encouragement of or at least to silent acquiescence in such invasion. Such conduct bars absolutely the remedy asked for at this time by the complainants. (Brisbin v. Burdick, 12 Beavan, 1; Smith v. S. W. Railway Co., Kay, 417.) It was admitted upon the argument that the defendants were financially responsible and amply able to respond to any award of damages that might be made against them. Under all the circumstances and for the reasons given the motion for a preliminary injunction is denied. [Supreme Court of the United States.] DEERING v. WINONA HARVESTER WORKS. Decided December 3, 1894. 69 O. G., 1641. 1. OLIN-HARVESTER-INFRINGEMENT-CLAIM OF IMPROVEMENT-PATENT LIMITED BY STATE OF THE ART AND HISTORY OF APPLICATION and Patent. Claim 1 of Patent No. 223,812, describing a swinging elevator located upon the grain or ascending side of the main belt, pivoted at its lower end and movable at its upper end, cannot be construed to cover a similar device located upon the stubble side, pivoted at its upper end and swinging at its lower end, particularly in view of the facts that the patent is not a pioneer patent, that the specification confines the invention to the terms of the claim, that in no one of the six claims is there a suggestion that the elevator or belt could be located upon the stubble side, that the invention was of doubtful utility and never went into practical use, that the mechanism set forth in the patent to Bullock and Appleby of October 31, 1882, under which the defendant manufactured its machines, was extensively sold throughout the country for about eight years before any assertion of adverse right under the Olin patent, the plaintiff himself becoming a licensee under the patent, and that, though Olin, while in the Patent Office, was thrown into an interference with another application having broader claims, he made no attempt to insert such broader claims. The Olin patent was not infringed, 2. STEWARD-Harvester-VALID-PUBLIC USE-ORAL EVIDENCE WEAKENED AND CONTRADICTED BY EXHIBIT-CLAIM OPERATIVE-INFRINGEMENT. Claims 20 and 21 of Patent No. 272,598, not anticipated by British patent of Howard and Bousfield of 1881, Steward having made oath during pendency of application that he had completed the invention and made a working model before the date of the British patent. Nor was the evidence of a use by one Heller, in 1877-78, of an extension butt-adjuster connected with an Appleby machine sufficient to create the bar of public use. "This case is an illustration of the wisdom of the rule requiring such anticipationą to be proven by evidence so cogent as to leave no reasonable doubt in the mind of the Court that the transaction occurred substantially as stated. The very exhibit produced by the witness Heller contradicted-so far as it could contradict-his testimony, and the witnesses who ought to have corroborated his story gave version which showed it to be untrue in more than one important particular." efforts in that direction must be relegated to that class of unsuccessful and abandoned experiments which, as we have repeatedly held, do not affect the validity of a subsequent patent. (Corn Planter Patent, 6 O. G., 392; 23 Wall., 181, 211; Coffin v. Ogden, 5 O. G., 270; 18 Wall., 120, 124.) Claim 20 is not invalid because inoperative for want of additional elements. The appropriate means for rendering the combination operative will be understood in any such case. This claim is valid and infringed; but as the defendants use a different method of adjusting the extension, which is neither the same invented by Stepard nor an equivalent, claim 21 is not infringed. "His APPEAL from the Circuit Court of the United States for the District of Minnesota. Mr. Ephraim Banning and Mr. T. A. Banning for the appellant. STATEMENT OF THE CASE. This was a bill in equity for the infringement of Letters Patent No. 223,812, issued January 27, 1880, to William F. Olin, for an improve. ment in harvesters, and Patent No. 272,598, issued February 20, 1883, to John F. Steward, for an improvement in grain-binders. The original bill was founded upon five different patents, but appellant acquiesced in the decree of the Circuit Court dismissing his bill as to all but the two patents above named. In the patent to Olin for an improvement in harvesting-machines, the patentee stated in his specification as follows: In that class of harvesting-machines where the grain is received upon a carrierplatform and elevated over the drive-wheel by an elevator and deliverer to the binders or an automatic binder it is desirable that there shall be no stoppage in the flow of the grain in its passage to the place of delivery; that the butts of the grain shall be carried up parallel, or nearly so, with the heads of the grain, so as to deliver the grain in proper shape for binding purposes, and that the grain shall be delivered to the receiving-table so that it can be bound at or near the middle. The object of this invention is to provide devices for attaining all of these results; and it consists in interposing a roller between the lower end of the elevator and the inner end of the grain-carrier, to facilitate elevating the grain and prevent clogging at that point, and prevent the grain from being carried down or falling through between the elevator and carrier; in providing a belt or chain at the grain side of the machine for elevating the butts of the grain, supported on a swinging bar, so that it can be adjusted, according to the length of grain being elevated, to deliver the grain so that it can be bound at the middle; in devices for operating and adjusting the elevator for the butts; in the peculiar construction of the cover; in arranging and operating the belt for the butts so that it prevents any clogging by short grain at the heel of the sickle; in arranging the device for elevating the butts so that it will bear against the butts of the grain and crowd or move the grain back on the elevator toward the center, for the purpose of straightening the grain in its passage up the elevator, and delivering it so that it can be clasped or bound near the middle, to facilitate the ease of binding; and in the several parts and combinaon of parts hereinafter described as new. Here follows at great length a description of the device claimed to be novel. The specification concludes as follows: The butts of grain are heavier than the heads, and consequently lag behind unless some means are provided to make them move faster than the heads. In order to elevate the butts even with the heads the belt or elevator Q is so arranged that the teeth b will engage with the butts of the grain on the roller I and carry them up while the heads are being carried up by the elevator-belts M. The lower pulley, c, is to be so arranged that it will permit the teeth b on the elevator Q to clear the end of the roller and engage the butts, and this pulley e is located as close to the main frame as is possible and permit the operation of the butt-elevator, which location of the pulley brings the butt-elevator in position to enable it to catch any short grain, which short grain is liable to fall down and be caught by the heel of the sickle and clog the sickle. By locating the lower pulley, o, of the belt Q at the proper distance above the main frame A the teeth b on the elevator will come in contact with such short grain and force it forward on to the carrier-platform, thus keeping the heel of the sickle clear at this point. 10693 PAT-43 The following drawing exhibits the "swinging elevator" feature of the patent: The plaintiff claimed an infringement of the first claim of the patent, which reads as follows: 1. In combination with a harvester-elevator, a swinging elevator pivoted at its lower end and suitable devices for shifting its upper end, whereby the swinging elevator forms a means for elevating the butts of the grain and delivering grain of different lengths at the same point, substantially as specified. In the patent to Steward for improvements in grain-binders, the patentee stated: The object of my invention is to provide means that, combined with an automatic grain-binder, shall make it automatically regulate the position of the band on the gavel-that is, shall automatically place the band upon the gavel in its proper position relative to the length of the grain without any aid or attention from the operator-and its nature consists in locating, in such a position as to be influenced by the heads of the incoming grain, or gavel or bundle, a device to be moved thereby, the said device connected with means for adjudging the relative positions of the said grain and the binding mechanism. The following drawing exhibits the patented device: |