swinging member, the pawls had to be raised with the hand and lifted back over the ratchet-teeth, and the double-track device was introduced for the purpose of avoiding that annoyance, so that the swinging member, when raised from the lowest point, step by step, as the pin of the pawl would ratchet from one notch to the other, and the swinging member raised to its highest position, the pin of the pawl could be switched off into another track, by which it could be returned over a free and smooth surface, allowing the swinging member to be adjusted to its lowest position.

The first patent with the two-track device was that issued to Poolman & Marks in 1884. This patent is for an improvement on adjustable chairs, and applied to a hinged foot rest of the chair. It is a twotrack ratchet-plate, in which the pin on a pivoted pawl works; the two tracks being formed by a dividing rib and a surrounding flange. The lower track is provided with the ratchet-teeth facing toward the left so that the pawl pin can be drawn forward, step by step, to the left, to get any adjusted angular position of the hinged member determined by the number of notches ratcheted. When the pawl pin reaches the extreme of its forward motion, the force applied thereto raises the switch, and the continued movement allows the switch to drop behind the pawl pin; the tracks being thus normally discontinued. The pawl can now be pushed to the right, and, as it moves in this direction, the applied force will lift or switch the pawl pin up into the upper track formed by the dividing rib or projection, so that the pin can be moved to the rear through this track, clear of the ratchet-teeth in the lower track. When the pawl pin reaches the extreme right-hand position, it will drop by gravity around the right-hand end of the dividing rib or projection, so that when it is drawn forward again it will pass through the lower notched track. This patent also shows that this end of the ratchet-plate is open, so that the pawl pin can be taken out of the tracks entirely, although there is nothing claimed in the specification as to this opening. It will be noted that this is a two-track ratchet-plate, in which the pawl pin is switched from a notched track into a smooth track by the action of a pivoted switch, separating the two tracks so that on the forcible rearward movement of the pawl pin the same will be raised into the upper clear track, and pass freely backward, and so that, at the end of its movement to the rear, the pin will drop down from the upper end around the dividing rib in position to pass forward again through the notched track.

Next in order of time was the Cleaveland patent, issued in 1888. It is a two-track ratchet-plate, to be applied to bed bottoms, known as "invalid beds," to render them more efficient, and capable of handling with greater care, in which the head portion can be set at various angles. It consists of a ratchet-plate of a circumferential flange, which is provided with ratchet-teeth on its inner lower face, and a switch pivoted inside of the circumferential flange, with its free end resting upon the left-hand tooth of the ratchet-teeth. This switch is a dividing partition, and separates the ratchet device into two disconnected. tracks; the lower track being provided with the ratchet-teeth, and the upper track being smooth and unobstructed. For the purpose of returning the pin of the pawl, after the swinging member has been

raised, step by step, from its lowest to its highest position, as it passes out of the last notch of the ratchet it opens the switch, which falls behind the pin by gravity, and then forms the track whereby the pin is returned again to the lowest position assumed by the swinging member. This device is like the one used by the defendants in the Luppino patent, with the exception that in the Cleaveland patent the ratchet-teeth are placed upon the lower part of the circumferential flange, and the switch forming the dividing rib is smooth, and in the Luppino patent the lower part of the circumferential flange is smooth, and the upper part of the switch or dividing rib is notched.

The next is the Heather patent, issued in 1900, as a certain new and useful improvement in adjustable spring cot and frames, and consists of a pivoted pawl carried by the hinged head section of the cot, and a two-track catch or ratchet-plate carried by the other section; the said two-track ratchet-plate being provided with two tracks defined by a surrounding flange and a dividing rib, which is provided with projections to be engaged by the pawl upon its upper side; the two tracks being connected so that the pawl can pass from one track to the other at one end, and disconnected by a switch at the other end. The pawl passes from the upper track to the lower track in such manner as to drop to the lower portion of the way below said notched bar, and is switched up into the upper way by being caused to ride over the switch into the upper way of the notched bar. The fact that there is a loop for the purpose of manipulating the pawl does not modify its effect upon the prior art. The mechanism of this device is similar to the one used by the defendants, with the exception that the switch is a very short one, pivoted to the right-hand end of the notched dividing rib, and would be almost identical if the entire notched dividing rib were used as a switch pivoted at the left-hand end of the notched dividing rib.

The next in order is a patent to Mr. Bowen, issued June 5, 1900, for a new and useful improvement in furniture, and consists of a twotrack ratchet-plate arranged to lie horizontally, instead of vertically, as in the prior devices. It has the usual circumferential flange, and separated by dividing rib or projection. One track is provided with ratchet-teeth, and the other track is smooth. The tracks are connected at their ends by curved passageways, and no switch is used, but the pawl is changed from one to the other passageway by gravity, and a lateral movement of the pawl caused by the curve arrangement of the flange. This device, however, is more in the line of the one employed by the complainants in their patent, and is not important in considering the prior art with reference to the defendants' patent, excepting as to the flange that may be cut away at one end, as represented in their specifications, to permit free engagement of the pawl with the ratchet or catch plate, if this be found desirable. This slot for engaging and disengaging the pawl with the ratchet is important, as bearing upon the question of the second Bowen patent.

The defendants' device is a patent issued to Joseph Luppino July 2, 1901, for a new improvement in adjustable supports for chair backs. It is a two-track ratchet-plate, which is supported by the frame of the chair, in which the pin of the pawl is operated for the purpose of rais

ing and lowering the back of the chair. The ratchet-plate consists of a circumferential flange with a slot in the upper left-hand part of the flange, and two ways are formed by a dividing rib, which is notched on the upper face, and is hinged at the left-hand end for the purpose of forming a switch. In operation, as the swinging back of the chair is raised from its lowest to its highest position, the pawl pin ratchets up over the teeth on the switch forming the central rib. When the hinged section reaches its highest extreme, the pin drops down around the left-hand end of the moving switch. Then, as the swinging member is moved from its highest to its lowest position, the pawl pin passes through the lower smooth track until it reaches the switch, when it will elevate the same, and so that, when the pawl pin passes the end of the switch, the switch will drop behind the pawl pin and close the smooth track then behind it. As the swinging section of the chair is then lifted toward its highest position, the pawl pin will travel up the switch, the end of which is tapered so that the application of force to the hinged section lifts the pawl pin into the first notch on the switch, and so on as it is desired to raise the back of the chair. It is plain that the defendants are justified by the use of similar devices in the prior art and their patent under which they claim the right to manufacture this improvement upon furniture.

The complainants' patents can only be sustained by restricting them properly within the lines set forth in their claims 1 and 4, wherein it is found that the improvement to which they are entitled to a patent is the two tracks being connected, whereby the pawl may pass from one to the other, as in the first claim, and, as in the fourth, wherein it is stated that the two tracks are connected at their ends, and with the peculiar method of adjustment and relation of one part of the device to the other. The ratchet-plate may be so positioned with reference to the pivoted pawl that the device will work as set forth in the specifications, the distinguishing feature being the passage from one track to the other without a switch; and, as to the slot in the circumferential flange, which is the substance of the second patent, it can be sustained in connection with this particular device, as its utility and novelty is in the method by which the connection of the parts is made after they have been disconnected by being so adjusted as to enable the connection to result automatically; otherwise this patent, if broadened in construction to include any slot in a device of this kind, would be anticipated by at least two other patents.

The court is therefore of the opinion that in this case the patents of the complainants are not infringed. They are simply improvements, and they cannot exclude others from making improvements for the purpose of effecting the same object, so long as their invention is not copied. Where an invention is an improvement on a known machine by a mere change of form or combination of parts, the patentee cannot treat another as an infringer, who has improved the original machine by the use of a different form or combination performing the same function. The inventor of the first improvement cannot invoke the doctrine of equivalents to suppress all other improvements which are not colorable invasions of the first. All others have an equal right to make improved machines, provided they do not copy the same, or sub

stantially the same, devices or combination of devices which constitute the peculiar characteristic of the previous invention. Burr v. Duryee, 1 Wall. 531, 17 L. Ed. 650; McCormick v. Talcott, 20 How. 402, 15 L. Ed. 930; Bragg v. Fitch, 121 U. S. 478, 7 Sup. Ct. 978, 30 L. Ed. 1008; Knapp v. Morss, 150 U. S. 221, 14 Sup. Ct. 81, 37 L. Ed. 1059; Kokomo Fence Machine Company v. Kitselman, 189 U. S. 8, 23 Sup. Ct. 521, 47 L. Ed. 689.

Let a decree be drawn dismissing the bill, with costs.

WILKIN v. HILL

(Circuit Court, W. D. Michigan. January 19, 1904.)

1. PATENTS-INFRINGEMENT-LOG TURNER.

The Wilkin patent, No. 583,560, for a log turning and loading device, for turning logs on the saw carriage in steam sawmills, was not anticipated, and discloses invention. Also held infringed.

In Equity. Suit for infringement of letters patent No. 583,560, for a log turner, granted to Theodore C. Wilkin June 1, 1897. On final hearing.

Benedict & Morsell, for complainant.
Parker & Burton, for defendant.

WANTY, District Judge. This is a bill brought alleging infringement of patent No. 583,560, issued to the complainant June 1, 1897, for improvements in log turning and loading devices. On the hearing the complainant made a motion to strike out the defendant's exhibit Giddings & Lewis-Lange contract, and defendant's exhibit of Lange's assignment to the defendant, and also to strike out all of the testimony relating to the changes made in the alleged infringing device at the Deward Mill after the commencement of this litigation. The complainant was not a party to the contract made on March 4, 1898, between the Giddings & Lewis Manufacturing Company and Herman O. Lange, and could not be affected by its terms; and, if he had been, the stipulations in that contract were so drawn that they could have no effect in determining the validity or infringement of the complainant's patent, and the assignment of that contract by Lange to the defendant could in no wise affect the rights of the complainant, and the motion to strike out all evidence relating to this contract and the assignment of it is therefore granted. The balance of the motion to strike out the testimony taken by the complainant relates to the changes made in the alleged infringing device after the litigation was commenced. It is true, as contended by complainant's counsel, that, if the device infringed before the changes were made, it could be no defense to a suit for an injunction against the infringement and for an accounting for damages to show that since the litigation began the infringing structure had been changed; but I take it the testimony was not offered for that purpose, but to show that a change could be made, making the device different from the complainant's device, which would still

perform the function claimed for the structure described in the complainant's patent. This proof would stand on the same basis as a model made for the same purpose, and would be admissible, and for that purpose it may be considered in the testimony, and for no other. The motion relating to the striking out of the testimony of the various witnesses in regard to these changes must therefore be overruled.

The patent covers an improved mechanism for use in steam sawmills, called a "log-turner" or "nigger," which is made to turn a log on the saw carriage, and force it against the knees of the carriage. These "niggers" have been in use for many years. The first patent, according to this record, involving the principle of an upright toothed bar through the floor of the sawmill, in relation to the log deck and carriage, and turning the logs, was granted to Esau Tarrant, August 25, 1868, and improvements have been made from time to time since. The claims which are alleged to be infringed in this suit are as follows:

"(1) In a log turning or loading device, the combination of two cylinders, one occupying a vertical position and the other an oblique position; a piston in each cylinder; a toothed bar connected to the rod of one of said pistons; and a link or brace connected to the rod of the other of said pistons, and per manently connected to the upper portion of the toothed bar. (2) In combination with an upright cylinder, E, provided with a piston, a toothed bar, G, pivotally connected with the rod of said piston; a cylinder, F, having its upper end somewhat nearer cylinder E than its lower end; a piston within the cylinder F; and a link or brace pivotally connected with the rod of said piston, and permanently connected with the upper end of bar, G. (3) In combination with a toothed bar and means for moving the same vertically, a link or brace pivotally connected with the upper part of said bar, and means for moving said link or brace longitudinally in a line oblique to and intersecting that in which the toothed bar moves. (4) In a log turning or loading device, the combination of two cylinders, both occupying generally upright positions, but nearer together at their upper than at their lower ends; pistons carried by said cylinders; a toothed bar and a link or brace pivotally connected one to one piston and the other to the other piston, and a flexible joint or connection between the upper portions of the bar and the link or brace, in a plane passing between the two cylinders. (5) The herein-described log turning apparatus, comprising, in combination, cylinder E, provided with a piston, a sliding block as c, and a guide as a; bar, G, jointed to said block; cylinder F, provided with a piston, a sliding block as g, and a guide as e; and link or brace, H, permanently connecting the block, g, and the upper end of bar, G." "(7) In combination with the upright bar of a log turning or loading device, and with means for moving the same longitudinally, a brace or link permanently connected with said bar at or near the upper extremity of the bar, and means for moving said link or brace longitudinally, substantially as set forth, whereby the bar is firmly supported in all positions."

The defenses insisted upon at the hearing are invalidity of the patent and noninfringement.

The prominent feature of these claims, in the words of the patent, "aims to render the pressure practically constant and uniform, or to enable the operator to control its variation at will. This result is accomplished by placing one actuating or controlling cylinder and piston in a vertical position and the other in an inclined position, and connecting the toothed bar to the piston rod of one cylinder, and the supporting links or braces to the other piston rod, and also to the upper part of the toothed bar"; and "a prominent feature