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(Supremo Court of tho United States.) DEERING 0. WINONA HARVESTER WORKS.

Decided December 3, 1894.

69 O. G., 1641. 1. OLIN-HARVESTER-INFRINGEMENT—CLAIM OF IMPROVEMENT-PATENT LIM

ITED 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 mov. able at its upper end, cannot be construed to cover a similar device located apon the stubble side, pivoted at its upper end and swinging at its lorer 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 Bnllock and Appleby Hof 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, Stoward 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 uso. “This case is an illustration of the wisdom of the rule requiring such anticipationg to be proven by evidence Bo 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-80 far as it could contradict—his testimony, and the witnesses who ought to have corroborated his story gavo version which showed it to be untrue in more than one important particular."

" His efforts in that direction must be relegated to that class of unsuccessful and abandoned expediments which, as we have repeatedly held, do not affect the validity of a subsequent patent. (Corn Planter Patent, 6 0.G., 392; 23 Wall., 181, 211; Cofin v. Ogden, 5 0. 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 caso. 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 Stertard nor an equivalent, claim 21 is not infringed. 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.
Mr. P. O. Dyrenforth for the appellee.

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 improvement 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 biod. ers 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 provents any clogging by short grain at the heel of the sickle; in arranging the device for elevating the batts so that it will bear against the batts 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 combinarion 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 c 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 thesickle. 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 tho sickle clear at this point.

10693 PAT- 43

The following drawing exhibits the "swinging elevator” feature of the patent:

[graphic]

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 npper 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 specifiod.

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:

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The plaintiff claimed an infringement of the twentieth and twentyfirst claims of the Steward patent, which read as follows:

20. The combination, in a grain-bindor, of moving batt-adjusting mochanism and the board d', substantially as described.

21. Tho combination of the swinging butt-adjuster, the arms d', d, d', and the board d', pivotod to the swinging butt-adjuster, substantially as described.

Upon a hearing upon pleadings and proofs, the court below dismissed the bill upon the ground that the Olin patent was not infringed, and that the Steward patent was invalid by reason of a certain device theretofore used, which was held to have anticipated the patent. From this decree plaintiff appealed to this Court. The opinion of the Circuit Court is reported in 0. D., 1890, 434; 52 O. G., 1223; 40 Fed. Rep., 236,

Mr. Justice BROWN delivered the opinion of the Court.

First. The Olin patent relates to a harvesting machine, and more particularly to a certain method of elevating the grain from the har. vester-platform, upon which it falls as it is cut, to the top of the delivery-apron, where it is discharged from the machine either into the hands of a binder, or into a mechanical grain-binder, as the case

may be.

In machines of this description the grain, as it is cut, falls upon the platform, and is carried to the base of an endless belt provided with teeth, which seize the grain and carry it over the driving-wheel of the barvester, up to a higher level than that where the binding is done, from which point it falls a short distance to reach the binder. The side of the elevator upon which the grain ascends is termed the “grain side;" the side upon which it descends to the binder is called the “stub. ble side.” In the operation of a harvester of this kind it was observed that, as the grain mounted the elevator on the grain side, the butt-end of the stalks, being heavier than the heads, exhibited a tendency to lag behind, so that the stalks assumed a diagonal position across the barvester-platform. The consequence of this was that the heads of the stalks were delivered to the binder in advance of the butts, and obliquely—a peculiarity which interfered with the proper binding of the grain. In addition to this, the different lengths of the stalks required some means whereby the binding band might be placed cen. trally to their lengths, that is, if the stalks, after being cut, are twelve inches long, the band should be placed about six inches from each end, but if the stalks are five feet long, it should be placed about two and a half feet from each end. To obviate the difficulty of the butts lagging behind, and also to secure proper delivery of the grain as to length, Olin invented an auxiliary belt located at a right angle to the main belt, but moving in the same direction and at somewhat greater speed. This auxiliary belt was also provided with teeth, which engaged the butt-end of the stalks, and moving faster than the main belt, kept the butts up to a level with the heads. As shown and described in tho patent, this auxiliary belt was arranged with one end located at the lower end of the main belt and near the carrier-platform, and the other end at the apex of the main belt or the highest point at which the grain ascends. The mechanism was intended to act upon the swath of flowing grain, and change its direction, pushing the stalks end wise, so that they might be delivered to the binder in proper position to be bound in their center, and also hastening their butts so that the stalks might not be delivered diagonally, but parallel with each other and with the flow of the main belt. The claim describes this swinging elevator as pivoted at its lower end, with suitable devices for shifting its upper end, whereby it forms a means for elevating the butts of the grain, and delivering grain of different lengths at the same point.

Devices bearing certain similarity to this, and having in view the performance of a like function, were not wholly unknown to the prior art. These devices, though not claimed to fully anticipate the Olin pat. ent, are important in their bearing upon the construction of this patent and upon the alleged infringement by the defendants.

Thus the patent to Elward of July 6, 1875, exhibits two rollers mounted in front of the horizontal belt. These rollers carry a short belt or apron, whose face, like that of the Olin patent, is perpendicular to the face of the horizontal belt. It is stated in the patent that one of these rollers may be driven by proper gearing, and it is so represented in the model. The face of this small belt moves in the same direction as the horizontal belt, and is set at an angle with the line of direction or travel of the grain. The specification states that this belt or apronmay be operated either by the friction of the passing butts of the grain, or it may be given a positive movement by gears or belts and pulleys from any convenient driving-shaft, the movement of the apron in either case serving to move or shove backward the butts of the grain projecting over the finger-bar.

This auxiliary belt of Elward's acts much in the same way in relation to grain moved by and on the horizontal apron that the auxiliary belt of Olin does upon grain carried upward by the main horizontal belt, shoving the grain endwise toward the rear of the machine while it is being carried along. No method is stated, however, by which the canvas may be rotated, and even if it were, it would still be incompetent to perform the office of the Olin belt, because it is not adjustable at either end.

The patent to George F. Green of March 6, 1877, also shows an adjustable butter, which he designates as a “grain-guide,” pivoted at the lower front corner of the elevator-frame, on the grain side, and provided at its upper end with a handle convenient to the driver sitting in his seat. This so-called "grain-guide” is much like that of Olin's in shape and location, though apparently not provided with a movable belt, and hence not adapted to hasten the ascent of the butts, but only to slove back the butts of the shorter stalks. Instead of operating to hasten the butts, it can only operate to retard them to the extent of the friction between the butts and the surface of the board.

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