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The patent to C. W. and W. W. Marsh of January 5, 1864, shows alongside of the main belt, an auxiliary belt, mounted on the same rollers as the main belt, and therefore proceeding at the same speed. The horizontal belt carrying the grain over the harvester-platform is described as traveling faster than the main elevator, so as to operate to straighten the grain, or bring the stalks parallel to each other before beginning their ascent. The auxiliary belt, however, is not arranged ou vertical rollers as in the Olin patent, but upon the same rollers as those carrying the main belt; neither is it pivoted at its lower end, nor capable of being shifted at its upper end, and hence is incapable of moving the grain endwise to even the butts. There are two or three other patents, which appear to have a somewhat remoter bearing upon the Olin patent, but are not necessary to be noticed in the consideration of this case.
The gist of Olin's invention seems to be in his taking the grain-guide used by Green, providing it with a belt and teeth somewhat upon the principle of the independent belt or bands used by the Marshes, traveling faster than the main belt, and for the purpose of keeping the butts in line with the heads of the stalks. The important feature, however, connected with all these prior patents is found in the fact that the devices described in them were all located on the grain side of the elevator, and were designed to secure parallelism in the stalks, as they mounted the inain belt, and before they reached its apex. Olin proceeded upon the same theory, and located his swinging elevator or auxiliary belt upon the saine side of the main elevator, and described it in his claim as pivoted at its lower end, with suitable devices for shifting its upper end.
In defendant's device, the grain is carried up upon the main belt or elevator, as in the Olin patent, without, however, any means whatever for hastening the butts or moving the stalks endwise upon the harvesterelevator; but, after having been lifted or carried over the apex of the main belt, and while descending upon the stubble side to the binder, they are adjusted in position by a traveling belt or apron almost iden. tical in principle with that of the Olin patent, but pivoted at its upper end and swinging at its lower end. This device is shown in a patent to Bullock and Appleby of October 31, 1882, in which the prior use of the plain face deflector board or surface was recognized, but was said not to be a sufficient means for effecting the desired adjustment of the grain-stalks endwise.
The butt-ends of the stream of grain will lag by contact with the stationary sur. face of such a designed deflector or adjuster, and the grain will not be properly guided to the binder or the point at which the binding is to be done.
Their invention consists, as they state, essentially in the employment of an adjuster and deflector composed of a traveling surface, mounted in an adjustable frame, and provided with suitable means for operating it, by which the cut grain, while passing from the delivery end of the conveyor to the binder shall be perfectly adjusted lengthwise of its stalks and to an extent corresponding to the length of the grain, 80 as to effect a presentation of the grain always in a given relative position to the binder devices of the machine and in proper condition for binding.
The third and most important claim of the patent was foran endless belt moving in the direction of the grain-dolivery and operating in contact with the stubble end of the grain on its passage from tho olevator to deliver it to a binding mochanism, substantially as set forth.
The real question in this case as between these two devices is, whether the first claim of the Olin patent 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 can be construed to cover a similar device located upon the stubble side, pivoted at its upper end and swing. ing at its lower end. We are of opinion that it cannot. Plaintiff claims in this connection that, by the lower end of the swinging elevator is in reality meant the receiving end, and that, as the defendant's device (which can hardly be called an elevator at all, since it facilitates the descent of the grain) is pivoted at its receiving end, which happens to be its upper end, it is within the spirit though not within the letter of the claim. But of whatever elasticity of construction this claim might have been susceptible, if it had been a pioneer patent, it is clear that, in view of the prior devices, of which it was only an improvement, and of the explicit language of the specification and claims, the patentee had only in view an auxiliary belt located upon the grain or ascending side of the elevator. Indeed, from the statement in the introduction of the specification, through all the description, and in each of the claims, care is taken to emphasize the fact that the invention relates to the combination, with the ordinary harvester-elevator, of a butt-elevator which operates upon the butts of the grain while the grain is being lifted upon the main belt, so as to hasten the ascent of the butts and move the stalks back upon the harvester-elevator. In no one of the six claims of the patent is there a sug gestion that the elevator or belt Q could be located upon the stubble side, although this belt is made an uloment in all but one of the claims.
If Olin had been the first to devise a contrivance of this description for adjusting the flow of grain upou the main elevator, it is possible that, under the cases of Ires v. Hamilton, (O. D., 1876, 459.; 100. G., 336; 02 U. S., 426,) and Hoyt v. Horne, (C. D., 1892, 435;. 59 0. G., 1761; 145 U. 8., 302,) a construction broad enough to include defendant's device inight have been sustained. But in view, not only of the prior devices, but of the fact that this invention was of doubtful utility and never went into practical use, the construction claimed would operate rather to the discouragement than the promotion of inventive talent. Not only does it appear that the device described in this patent did not go into general use, but that the mechanism set forth in the patent to Bullock and Appleby of October 31, 1882, under which the defendant manu. factured its machines, was exteusively sold throughout the country for
to the discovear that the devichanism set fort
about eight years before any assertion of adverse right under the Olin patent, and that the plaintiff himself became a licensee under the Appleby patent, and manufactured his own machines in accordance therewith.
Another fact is deserving of consideration. While the application for the Olin patent was pending, another application was made by McGregor and Flennekin, showing a grain-adjusting device similar to that used by the defendants; that is, a butt-adjuster like that of Olin's, but located upon the descending line of grain travel, and pivoted at its upper end instead of its lower end. This application was thrown into interference with that of Olin-the Examiner holding the subject matter involved in the interference to be an endless belt moving in the direction of the grain-delivery, operating in contact with the end of the grain to deliver it to a binding mechanism.
This interference seems to have been decided in Olin's favor, since a patent was subsequently issued to him; but inasmuch as he thus was warned of the claim of McGregor and Flennekin, and of its extent, it is somewhat singular that he did not at least endeavor to obtain an enlargement of his claim, to cover an endless belt moving in the direction of the delivery, whether such belt were located upon the grain or stubble side of the elevator, and thus anticipate McGregor and Flen. nekin. His failure to make an effort in that direction indicates a con. sciousness on his part that he had limited himself to an endless belt apon the grain side, and the fact that the McGregor and Flennekin patent was subsequently issued, with the broad claim of the endless belt moving in the direction of the grain-delivery, indicates that, notwithstanding the interference, it was not considered as anticipated by the Olin patent previously granted. In the meantime, and during the pendency of the Olin application, Bullock and Appleby applied for a patent upon the combination of the traveling apron with the table of the grain-binder, as used by these defendants, and a patent was issued to them October 31, 1882. If Oliu were entitled to all that plaintiff now claims, it would seem that the patent to McGregor and Flennekin, as well as that to Bullock and Appleby, are infringements upon his own. It is possible that Olin was entitled to a broader claim than that to which he limited himself; but if he described and claimed only a part of his invention, he is presumed to have abandoned the residue to the public. (McClain v. Ortmayer, C. D., 1891, 532; 57 0. G., 1119; 141 U. S., 419.) There was no error in holding that the Olin patent had not been infringed.
Second. There are twenty-one claims in the Steward patent, the last two of which only are involved in this controversy. These claims are as follows:
20. The combination in a grain-bidder, of moving butt-adjusting mechanism, and the board d', substantially as described.
21. The combination of the swinging butt-adjuster, the arms d, 4, and d* and the board d', pivoted to the swinging butt-adjuster, substantially as describod.
The peculiar feature of this portion of the patent is in the attachment to a butt-adjuster, such as is described in the Bullock and Appleby patent—that is, upon the stubble side of the elevator-of a board pivoted to the end of the movable butt-adjuster to bear against the butts of the sheaf of grain, after it passes the butt-adjuster proper, and while it is being acted upon by the binding mechanism. This board d' is described in the patent asa thin board or plate of metal, as wide as the adjusting-canvas, and pivoted to the frame of the latter at its lower extremity. From this board reaches upward and in ward an arm d?. The board and frame aro as one piece; but the board itself is made in two parts, so that its greater portion (which is the lower) can be removed.
As the grain advances into the binding-receptacle, the board bears against the butts, and holds them in an even condition, and in such a position as to insure the central binding of the bundle. In practice two forms of this extension of the butt-adjuster have been used; one consisting of a board or sheet-iron plate rigidly secured to tbe buttadjuster at its lower end, and the other consisting of such a board or plate pivotally connected to the butt-adjuster at its lower end, and connected to the binder in such a way as to cause it to remain “parallel with itself” in the various positions which it assumes. In other words, when the pivotal form of extension is used the connections are such that, while the angle of the butt-adjuster with the top of the binder changes, the angle of the extension and the same board remains constant, or nearly so. Defendant's machine is provided with a moving butt-adjusting mechanism, and also with a board pivoted to the lower end of the butt-adjuster, practically identical in its construction and operation with that of the Steward patent. The defenses to these claims are:
First. That claim 20 is void, in that it describes an incomplete and inoperative invention, and if completed by reading into it the necessary specifications, the defendants do not infringe.
Second. That claim 21 is not infringed by defendant's machine.
Third. That both claims are void, because Steward was not the first inventor, and because substantially the same device as shown and described in the patent and referred to in the claims was in public use in the United States for more than two years before the application was filed.
As the last defense goes to both of these claims, it may properly be considered first.
The English patent to Howard and Bousfield of 1881 may be left out of consideration, because, although it antedates the Steward patent, Steward made oath that he had completed his invention and made a working model before the date of the English patent. As his oath was accepted by the Patent Office as decisive of the fact, and a patent was issued to him upon it, and there is no evidence before us to contradict it, it need not be further noticed here.
The court below found, however, that the device in question was invented and publicly used by one Gottlieb Heller on his farm in Kansas in the harvest of 1877–78. The importance and peculiar character of the testimony upon this point will justify a somewhat extended analysis and consideration of it. Heller is a Kansas farmer, who also appears to have been for some years agent for the Beloit—later the MilwaukeeHarvester Company. He testified that in 1878 he bought from an agent of the Beloit Company a combined harvester and binder, which had a traveling butt-adjuster precisely as it appears in the Bullock and Appleby patent, except that it had no construction corresponding to the board d' of the twentieth claim. He found that when the grain was short and thin it did not work well, so that he added an extension to the batt-adjuster, to keep the straw of the bundle even at the butts.
Tbis extension, as he explained it, was first made with a piece of tin or sheet-iron nailed on to the frame of the butt-adjuster. This arrange. ment proved unsatisfactory. He then says he made an extension out of sheet-iron and heavy hoop-iron, which would adjust and keep straight with the butt of the bundle, and in that way it satisfied him. He illus. trated this device by a rough sketch, containing much the same elements as those described in claim 21 of the Steward patent. He then produced what he claimed to be the identical device which he made in 1878, and used publicly in the barvest of that year. This device was put in evidence. He says his wife and son helped him in the harvest and drove the machine which was used to cut part of two hundred and fifty acres. He also attempted to use the device the next year, 1879, but the grain was so short it proved unsatisfactory, and he took it off and elevated the grain into a wagon. In 1880 he got a new binder, which the adjustable extension did not fit, and for lack of time he put on a rigid one instead of an adjustable one, though he preferred the latter. At various times he put on rigid ones for other persons. The pivoted butt-adjuster represented in his sketch and relied upon to establish the prior use was thrown aside and lost sight of for several years, Heller never applying for a patent'nor taking any steps toward the introduction of the device.
One Rubin, a neighbor of Heller's, who sold him the harvester and binder he used in 1878, went to Heller's farm in the harvest of that year to see how it worked, when Heller's son called bis attention to an. improvement in the butt-adjuster which he said his father bad made; but he evidently did not remember whether the board extension was rigidly or pivotally attached to the adjuster, though he thought it was screwed upon the frame of the adjuster, stiff.
George Heller, the son, testified that his father made an extension, like the one introduced by him, for the harvest of 1878, and that the sheet-iron piece was from an old Kirby self-rake. He seemed to have put it on as a rigid extension at first, and, after using it a day or two, substituted an automatic extension, which he believes to bave been the