Names of Counsel.

January 30, 1866, for improvement in quartz mill, No. 52,347. "Letters patent to Thomas Varney, granted and dated April 9, 1867, No. 63,675, for improvement in quartz mill. "As to patent to P. W. Gates, No. 216,608.

"Letters patent to H. Pearce, granted and dated July 31, 1866, No. 56,793, for improvement in quartz mill.

"As to patent to P. W. Gates, No. 250,656.

"Letters patent to P. W. Gates, granted and dated June 28, 1881, No. 243,545, for improvement in rock or stone breaker.

"Letters patent to Daniel Hughes, granted and dated February 20, 1866, No. 52,716, for improvement in quartz crusher, etc.

"Letters patent to L. Fagin, granted and dated October 30, 1866, No. 59,201, for improvement in hanging millstones.

"English letters patent to Claude Marie Savoye, No. 6195 of 1831, for improvement in machinery for grinding grain and other substances.

"The defendants, further answering, say upon information and belief that some of the older ones of complainant's said patents show and describe improvements which are claimed in other and later of the complainant's said patents, and they further say that as to the said several patents by them herein and hereintofore mentioned are shown and described devices, parts, or combination of parts that are substantially the same as the devices and combinations set forth in other patents than those to which they are specifically named as relating, and that any and all of said patents will be referred to as containing the substance of any or either of the complainant's said patents as may be deemed appropriate."

The cause was put at issue, a large amount of evidence taken, and after argument on March 31, 1890, the court below dismissed the bill at complainant's costs. From this decree an appeal was taken to this court.

Mr. Lewis L. Coburn for appellant.

Mr. L. L. Bond, (with whom was Mr. C. E. Pickard on the brief,) for appellees.

Opinion of the Court.

MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.

The patents that are before us for consideration are for improvements in stone-crushing machines. We shall preface our discussion of the questions that arise by adopting from the brief of the plaintiff in error the following description of the final and perfected form of the machine, and which is claimed to embody the various inventions and improvements covered by the several patents:

"The inventions of these various patents can be more readily understood by first understanding the construction of this type of stone-crushing machines which has become to be known as the gyratory type of stone crushers. This name comes from the fact that the crushing cone is carried on a vertical shaft which has its bearing at one end in the axis of the conical enclosing case which surrounds the crushing cone, while the bearing of the other end of the cone shaft is eccentric to the axis of the enclosing or surrounding conical cylinder which surrounds the crushing cone. This vertical shaft which carries the crushing cone of the machine is loose in its bearings, but the end of this shaft which is eccentric to the axis of the enclosing conical case or cylinder of the machine is carried around in a circle by being placed in an eccentric box in a gear wheel that is revolved on its centre, which centre is in the axis of the enclosing case or cylinder of the machine. The shaft which carries the crushing cone describes in its movement, when the machine is in operation, a conical orbit around the vertical axis of the enclosing conical cylinder of the machine. The stone to be crushed is dumped into the top of the machine between the crushing cone and the cylindrical conical case or shell which surrounds it, the cone shaft is carried around in its conical orbit, the crushing cone impinges the ore or rock between it and the surrounding case or cylinder, and crushes it. The shaft or arbor of this crushing cone being loose in its bearings, it does not rub or grind the stone, but simply cracks it into finer pieces, and then impinges the next pieces of ore or rock, and so on around the entire

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Opinion of the Court.

conical orbit, the space between the crushing cone and the enclosing conical case or cylinder opposite of where the ore or rock is being cracked or broken becomes greater by reason of the crushing cone being carried to the opposite side of the enclosing case or cylinder, and the broken rock falls down into a narrower space, and when the crushing cone comes around again, it is again broken, until it is sufficiently fine to pass out at the bottom of the space between the crushing cone and its enclosing case or cylinder.

"This construction of ore crushers, or stone breakers, as they are frequently called, is a continuous feed machine, the stone being constantly fed in at the top of the machine in a coarse state, and continuously passes out at the bottom of the crushing space, broken to a certain definite size, which is fixed by an adjustment of the crushing cone in the enclosing case or cylinder."

This form of machine is illustrated in the following drawing:

Opinion of the Court.

In this cut A represents the conical enclosing case or cylinder which surrounds the crushing cone B, which is rigidly attached to and is carried on the vertical shaft or arbor C. The top or upper end of the arbor C has a bearing in the chilled section box D that is held in an open spider-frame E, this bearing being exactly in line of the axis of the enclosing conical case or cylinder A. The bottom or lower end of the shaft C has its bearing in what is termed an eccentric box, F, which is placed in the gear wheel G. This eccentric box is placed at one side of or eccentric to the vertical axis of the enclosing case or cylinder A. The gear wheel G is supported on the base of the machine, so that the centre of its hub is exactly in line with the vertical axis of the enclosing conical case or cylinder A, and when it is revolved it carries the lower end of the shaft or arbor C, around in a circle, and consequently continually brings the conical crushing cone B in closer proximity to one side of the enclosing case or cylinder to impinge the stone contained in the enclosing case or cylinder, and that impingement is continually changing from one place to another throughout the entire circle, and the space opposite of the place of impingement between the crushing cone and its enclosing case or cylinder is wider than where the impingement of the ore or stone is taking place. This particular motion of the crushing cone and its shaft or arbor has been termed a gyratory motion. The shaft or arbor is never vertical, and one of its bearings is in an eccentric box placed eccentric to the bearing of the other end of the shaft or arbor, and eccentric to the axis of the enclosing case or cylinder. The crushing cone and its shaft or arbor describes at each revolution of the geared wheel in which the eccentric box of the shaft or arbor is placed, a conical orbit.

It is claimed by the plaintiff in error that this form of machine is the composite result of the application of the improvements described in the patents set up in the bill. To test the soundness of this claim it will be necessary for us to look into the condition of the art prior to the issue of the earliest patent owned by the complainant, that is, prior to July 31, 1866, the date of letters patent No. 56,793, granted to Henry Pearce.

Opinion of the Court.

The first patent to which our attention has been particularly directed is that issued April 25, 1846, to Jonathan F. Ostrander, and numbered 4478. It is a claim for an improvement in grinding mills, and the nature of the invention is said to consist in "making the surfaces of the stones, or metallic plates, between which the material is ground, the one convex, the other concave, and also in giving the movable plate or stone a compound motion, consisting of, firstly, an oblique gyrating motion of its axis around the axis of the fixed plate; and, secondly, a rotating motion around its own axis." The material to be ground is fed to the mill by being placed in a cup-shaped opening in the top of the shell that encloses the machine, and the ground material is received in a gutter surrounding the base. We here perceive the double motion, that is, "the revolving and rolling motion," which is a feature of the Pearce patent, and the operation of the two machines is similar in that, in both, the pestle alternately closes upon and recedes from the sides of the outer shell, so that any substance or material to be ground is thereby crushed, and passes downward to the lower part of the machine, where the space gradually lessens, and is crushed finer.

The patent No. 28,031, granted April 24, 1860, to George H. Wood, was for a machine for crushing stone, quartz, ores, or any other substance capable of being reduced or pulverized by pressure. The specification describes a machine having an outer shell or case and an interior cone or pestle, which has an eccentric motion. We shall hereafter show that the machine made by the defendants does not contain the distinguishing features of the Pearce patent. But we have briefly described the inventions of Ostrander and of Wood to make it to appear that machines composed of an outer shell or case enclosing an outer cone or pestle, and operating on the material to be crushed by an eccentric motion, were known to the art.

Letters patent No. 88,216, dated March 23, 1869, reissue No. 3633, dated September 7, 1869, were granted to James W. Rutter for an improvement in ore crushers, and in which it is stated that the invention related to that class of crushing