This was a suit in equity by the McEwan Bros. Company against George L. White for infringement of a patent.

Briesen & Knauth, for complainant.
Geo. E. Terry, for defendant.

TOWNSEND, District Judge. This is a suit upon letters patent No. 492,927, granted March 7, 1893, to Robert B. McEwan, Jessie L. McEwan, and Richard W. McEwan, for an improvement in paper board. The object of the alleged invention was to obtain a superior quality of paper board at a reduced cost. The specification states that this is accomplished by such processes as subdivide and preserve the permanent particles of printers' ink in newspaper stock, so that they may be blended with the fibers of the paper without impairing the strength of the fibers by bleaching out the ink. The claim is as follows:

“As a new article of manufacture, a paper board formed from printed newspaper, or the like, ground to a pulp, and having the permanent particles of the printers' ink minutely subdivided and uniformly distributed throughout the body of the board, whereby a smooth and even tint is imparted to the board."

Infringement is not denied.

The only evidence in the case is that
The defendant claims that cer-

It

of one witness for the complainant. tain admissions made by him show that the patent is void for want of novelty. It appears that prior to the alleged invention paper board had been made from newspaper stock, in which the ink was utilized as part of the coloring matter. The process by which this was accomplished included the use of an alkali which saponified the oil in the ink, and the saponified matter was then washed out. It is admitted that this process involved additional expense. is not denied that the fiber of the finished product was weakened thereby. It would seem that this was one of the "more or less expensive attempts to bleach out the ink" referred to in the patent in suit, the objectionable results of which the patentee sought to obviate in his product. The patented product consists of paper stock ground to a pulp, and permanent particles of printers' ink so minutely and uniformly distributed throughout as to produce an even tint. The product relied upon as an anticipation is a paper pulp tinted by the coloring matter originally forming one of the constituents of the printers' ink. In the former there is mechanical disintegration; in the latter, chemical solution. Without other evidence that such product did not involve inventive skill, with the allegations of the patentee that it was stronger in fiber and superior in quality, and the admission that it was produced at less expense, I think the complainant is entitled to the benefit of the presumption in favor of the validity of the patent. Let a decree be entered for an injunction and an accounting.

BOWERS v. VON SCHMIDT.

(Circuit Court, N. D. California. July 23, 1894.)

No. 10,244.

DREDGING MACHINES.

1. PATENTS- EXTENT OF CLAIMS-PIONEER INVENTION The Bowers patents, No. 318,859, for dredging machine, and No. 355,251, for hydraulic dredging apparatus, are valid, and cover inventions of a pioneer character, and the claims are entitled to a broad construction. 2 SAME-CENTER OF OSCILLATION.

Two forms of centers of oscillation are described in the Bowers patents, viz. one consisting of a turntable rotating in a circular well in combination with two spuds or vertical anchors passing through apertures in the turntable; the other consisting of a single spud when the turntable is made stationary. The claims which specify, as one of the elements, "a center of oscillation," include and cover both forms, and are not limited to the first form, and Bowers was not anticipated in the latter form by Angell or the defendant.

8. SAME-FUNCTIONAL CLAIMS.

The element designated in the Bowers claims as "a rotary excavator with inward delivery" is not functional in form, but means a rotary excavator of such construction as will produce an inward delivery.

4. SAME-ROTARY EXCAVATOR WITH INWARD DELIVERY.

Two forms of rotary excavators with inward delivery are described in the Bowers patents,-one containing an inner chamber or shield, within the cutter head, having an opening in the top for admission of the spoils; the other with said inner chamber or shield cut away until only enough remains to support the excavator and shaft. The claims containing the element, "a rotary excavator with inward delivery," include and cover both forms, and are not limited to the first form.

5. SAME-AMEndment of SPECIFICATION IN PATENT OFFICE.

Where an applicant for a patent is the original and first inventor of a form of device, but his original specification does not sufficiently describe it, so as to entitle it to be claimed therein, it is competent for him to amend his specification so as to include it, at any time prior to issuance of his patent, even though such amendment be made in reference to another patent, applied for and issued prior to the issuance of the applicant's patent, but subsequent to his invention.

6. SAME

ANTICIPATION-EARLY MODELS AND DRAWINGS.

An apparent anticipation may be avoided by a complainant by proving priority of invention over the alleged anticipation, and models or drawings, if sufficiently plain to enable those skilled in the art to understand them, are competent proof of such priority.

7. SAME-INFRINGEMENT.

The excavator shown in the Von Schmidt patents, Nos. 277,177, 300,333, and 306,368, though differing in the mode of mounting and in the shape of the cutting blades, is essentially the same, and operates in substantially the same way, producing the same result, as the Bowers excavator. 8. SAME-SUBSEQUENT PATENT.

A subsequent device may be an infringement of a prior patent notwithstanding the fact that such subsequent device is in itself an invention, and patented.

9. SAME AGGREGATION AND COMBINATION.

A combination, to be patentable, must produce a different force or effect or result, in the combined forces or processes, from that given by their separate parts. There must be a new result by their union. If not so, it is only an aggregation of separate elements. The Bowers claims bear the test of all the definitions. They are true combinations, and not aggregations.

This was a suit by Alphonzo B. Bowers against Allexey W. Von Schmidt for infringement of two patents on dredging machines. The original application therefor was filed December 9, 1876. eral divisional applications were carved out of it, and upon two of them the patents in suit were issued. While these applications were pending the defendant built and put into use the infringing machine, and at the same time made application for patents for his specific devices, and obtained such patents prior to the issuance of complainant's patents; the same being numbered 277,177, 300,333, and 306,368. The claims of defendant's patents were for his specific devices.

John H. Miller, John L. Boone, and M. M. Estee, for complainant. Wheaton, Kallock & Kierce, for defendant.

MCKENNA, Circuit Judge (orally). This is an action for the infringement of certain claims of two patents issued to plaintiff. The first is numbered 318,859, and dated May 26, 1885, and the second numbered 355,251, and dated December 28, 1886. There is no claim which contains all of what plaintiff claims to be his invention. Its elements are variously combined in 103 claims. Of these, infringement is alleged of Nos. 10, 16, 25, 26, 33, 53, 54, 59, and 75 of patent No. 318,859 (Exhibit A), and of 13, 14, 17, 18, and 22 of patent No. 355,251 (Exhibit B). In the first patent the machine is called a "dredging machine;" in the second, a "hydraulic dredging apparatus." The purpose of both is the dredging of river bottoms, and the transporting of the "spoils" to land.

The elements of the first are: A boat of suitable shape, with suitable machinery to furnish power for its operating parts; a bottomless bucket excavator, of moderate size; a nonrotating suction pipe, mounted on strong trunnions or other equivalent joints; a discharge pipe flexibly joined to the boat at or near its center of oscillation, and consisting of sections flexibly joined, and resting on or supported by hollow floats, and flexibly connected with a nonflexible section which rests on land. There is no controversy about any of the elements, or of the construction of any, except the form or kind of center of oscillation, and the form or kind of excavator. The issue between the parties principally turns on them. The patent describes two centers of oscillation: One a turntable (Figs. 1, 2, and 10), which may be made to rotate by any suitable means in a circular well. It contains two apertures, into which vertical anchors or spuds are fitted loosely, and which may pass through, as occasion requires, into the mud below, and which hold the turntable stationary, the boat swinging about it from side to side. Second, the turntable made rigid with the boat, and so adjusted that the vertical anchors or spuds are arranged on either side of the central line of the boat, enabling each spud, alternately, as it is dropped into the mud, to act as a pivot upon which the boat may swing.