Thomas A. Banning, for appellant Dowagiac Mfg. Co. Paul A. Staley and Border Bowman, for appellee. Before LURTON, DAY, and SEVERENS, Circuit Judges. SEVERENS, Circuit Judge. These causes were heard together, for the reason that both involve the validity and scope of the patent on which both the cases are founded, as they now stand on appeal. The question of infringement is presented upon facts slightly different in the two cases, but the facts are so nearly identical that both cases may conveniently be disposed of in one opinion. Thus needless repetition will be avoided. There was a cross appeal in the second of the cases above entitled, by the Superior Drill Company, which was complainant in the court below, taken upon the grounds that the circuit court erred in decreeing that certain other of the complainant's patents, which were alleged by the bill to have been infringed, were invalid, and also in dismissing the bill as to other persons who were joined as defendants. This cross appeal was dismissed at the hearing, for the reason that, this being an appeal from an interlocutory decree for an injunction, it was premature, upon the authority of Hohorst v. Packet Co., 148 U. S. 262, 13 Sup. Ct. 590, 37 L. Ed. 443, and Western Electric Co. v. Williams-Abbott Electric Co., 48 C. C. A. 159, 108 Fed. 952. The bills in both cases were filed by the Superior Drill Company against the appellants, respectively, for the purpose of restraining the alleged infringement of several patents relating to seed drills belonging to the Superior Drill Company, and for profits and damages. In the circuit court (Judge Wanty presiding in the first case, and Judge Clark in the second) all those patents were held void, except one. This was No. 557,868, issued April 7, 1896, to F. R. Packham, which was held valid and infringed in respect to the first, second, third, and sixth claims thereof. A perpetual injunction was awarded, and a reference to the master ordered, to ascertain and report profits and damages. The defendants in both cases have appealed. The cross appeal of the drill company having been dismissed, the controversy in this court relates only to the questions of the validity and the infringement of the Packham patent, above mentioned. This patent relates to the construction of furrow openers, in the class of grain drills known as "disc drills," and was granted for an improvement in such furrow openers. Specifically, it consists in locating a shield or guard at a particular place in the organization of the furrow opener, and in a particular relation to the other parts of the furrow opener; the purpose being to produce certain results, which will be presently explained. The general composition of grain. drills and their mode of operation being well known, it will be necessary to particularly describe only those parts of a drill which are immediately involved in the operations of opening the furrow, dropping and scattering the seed in the furrow, and covering the seed with the soil. As might be expected from the universal use of these implements, which have become so indispensable in the production of grain crops, a great many inventions and a long list of patents had already developed and spread the knowledge of the art of their construction, and their use, at the time of Packham's invention. In one of the leading forms of these the furrow was opened by a device in the shape of a very narrow double-moldboard plow, which, penetrating the ground at an acute angle, opened and slightly raised the soil on either side, whereupon the seed was dropped through a tube behind and within the wings of the opener, while the soil was thus lifted, and immediately upon the passing forward of the opener out of the way the soil dropped back upon the seed. In another the furrow was made by a wedgeshaped device, called a "shoe," and somewhat in the form of a sharp V, both in its horizontal and its vertical shape, the point dividing the soil, which was pressed sidewise by the wings; and the lower edge of the shoe being also an angle, and the wings flaring outward, the earth was, in consequence, pressed downward while it was being pressed. sidewise, thus leaving the furrow in a V shape. The seed was dropped in the furrow immediately behind the shoe, and, the sides of the furrow being impacted, it was necessary to employ a covering device, as a short chain carrying rings dragging behind the shoe, or blades. which were set so as to scrape the earth back into the drill, or a press wheel which would crush down upon the seed the upper part of the sides of the furrow. In another, instead of a shoe, the same work was done by using a roller in the form of two concave discs, having their concave sides facing each other, and their edges united in one; the result being that, as the roller moved on its journal, it formed and left the V-shaped furrow of the shoe drill. Some covering apparatus was necessary, as in the case of the shoe drill, and for the same reason. In recent years the disc harrow has come into general use. As usually constructed, the operative part consists of concave discs, located at equal distances upon a shaft having bearings. In use, these discs, and, of course, the shafts, were set at an angle to the line of draft, and when the harrow was drawn forward the revolving discs would cut into the ground, and scrape upon their concave sides, and partly turn, the soil lying in their wake, leaving ridges larger or smaller, depending somewhat upon the angle at which the discs were set. Thereupon invention began, of means and methods to utilize this form. of harrow for the purposes of a seeding drill, and a considerable number of patents were taken out upon such inventions. The general object sought to be obtained was to devise some subsidiary apparatus, which, co-operating with the discs of the harrow, would open a furrow, drop the seed evenly upon the bottom thereof, and then properly cover it. Several of these inventions seem blind enough, but others made some approach toward the definite purpose. These latter we shall more particularly consider when we come to take up the question of the anticipation of the Packham patent. For our immediate purpose we will, however, state the characteristics of a previous patented invention of Packham, upon the construction of which the one in suit was designed to be an improvement. The former patent referred to was No. 527,621, issued October 16, 1894, and was for a seeding machine. The following figure, which includes only those parts of Fig. 1 of the drawings regarded as necessary for the illustration, which, with a few words of explanation, will enable one to see what the improvement of the later patent was: In this figure, c is the drawbar; g' is the seed tube coming down from the hopper, and terminating a little below a horizontal line drawn through the center of the disc; f2 shows where the drawbar of the pressing wheel is attached; and b is the disc journaled at e, the convex side only of the disc being shown. In operation the forward edge of the disc is set to the left of the line of draft, making an angle therewith. The rearward edge of the disc will be to the right of the line of draft, so that when the machine is moved forward the disc will dig a furrow beginning where the forward edge of the disc meets the surface of the ground, growing deeper to the line passed over by the bottom of the disc, and then thinning out to the line where the rear edge of the disc rises out of the ground. During this operation the earth is scraped and lifted sidewise on the concave side of the disc, and, where the disc leaves it, stands in a ridge having a face toward the furrow, more or less perpendicular, according to the angle at which the disc runs to the line of draft. In the illustration shown, the seed drops from the bottom of the conduit into the furrow made by the disc at or about the place where the rear edge of the disc begins to rise out of the earth. When the ground is clean and well pulverized, and the machine moves steadily, the seed would fall through the intervening space between the lower end of the conduit and the furrow in a suitable way. But if clods or stubble or other trash were in the way, the clods might roll into the furrow, as the disc passes by, or the stubble or trash might not be cut off or might extend into the furrow space, or the oscillating motion of the drill might tend to cast some of the seed upon the land side of the furrow; so it seemed a desideratum that a construction should be devised whereby the furrow should be kept clear of obstructions, and the seed be prevented from spilling upon the land outside the furrow while it was being sown and covered. The purpose of the Packham invention, now in question, was to supply this requirement. It consisted in adding a shield to the former construction, extending from the conduit, and on the land side thereof; down into the furrow, and having its forward edge bent a little inwardly, and conformed to the convex surface of the disc, so as to pre vent any obstruction from coming into the furrow, or in the way of the falling seed. The shield was attached to the frame above in a constantly fixed relation to the disc, and so located along the rear and bottom segment of the disc, but at a little distance therefrom, as to follow in the wake of the disc, and just within the furrow made thereby when the machine was in operation; the lower edge of the shield being also bent inwardly to conform to the convexity of the disc, and consequently to the land side of the furrow. The following figures, I and 4, taken from the drawings, show the convex side of the disc, and the form and location of the shield, and, when contrasted with the foregoing figure of Packham's former construction, show the main characteristics of the invention covered by the later patent: a is the disc, and b3 the shield. Their relation to each other and the parts with which they are combined will be clearly seen. It is claimed, as the result of this invention, that the parts are so located and organized as to effect substantially the following operation: While the disc is making the furrow the shield keeps the furrow clear of all obstructions liable to come into it from the front or land side, and while the disc holds the earth up and out of the furrow the seed falls down upon the bottom of the furrow between the disc and the shield; much of it striking against the shield and disc, and being distributed somewhat thereby. Then the disc lets go the earth, which drops back upon the seed. Not all of the earth lifted drops back upon the seed, but most of it. In some conditions of the soil a following wheel is used, which presses a little more of the soil into the furrow, and compacts the whole. Thus it is said the seed is all cleanly sowed upon the bottom of the furrow, and evenly covered with the earth pulverized by the disc. It is true that the purpose of deflecting the seed, which is dropped against the inside of the shield, is not mentioned in the specification; but in describing its form it is stated that it extends downwardly, "following substantially the line of the furrow-opening disc," and in the drawings (see Fig. 4, above) it is shown to conform to the convex face of the disc, curving inwardly at the bottom. It is seen that the obvious consequence of this is that the seed falling upon the inside of the -shield would be deflected against the lower portion of the disc, and in use this is found to be the result. And in Goshen Sweeper Co. v. Bissell Carpet Sweeper Co., 19 C. C. A. 13, 72 Fed. 67, it was held by this court that a patentee is entitled to all the advantages of his invention, whether he knew of such advantages or not, and that proposition has been confirmed by our more recent decisions. Frederick R. Stearns & Co. v. Russell, 29 C. C. A. 121, 85 Fed. 218, and Palmer Pneumatic Tire Co. v. Lozier, 33 C. C. A. 255, 268, 90 Fed. 732. And see the learned opinion of Judge Sanborn in National Hollow Brake Beam Co. v. Interchangeable Brake Beam Co., 106 Fed. 693, 709, 45 C. C. A. 544. From an attentive consideration of the record, and a study of the patent in the light of what is generally known of the art, we think these claims for the invention are substantially well founded; and the invention seems to us to have considerable merit, if, indeed, it was not, as the defendants contend, anticipated by former inventions. The claims of the patent which are said to be infringed in case No. 989 are, 1, 2, 3, and 6; and in No. 1041, claims 1, 2, and 3. These claims read as follows: "(1) A furrow opener consisting essentially of a frame or support having a conduit therein; a disc journaled on a suitable trunnion on said frame or support, which is located in front of the conduit; same frame or support being provided with an extended portion which projects below the lower end of the conduit, and in front of the same; said extension being formed at the front to conform to the shape of the side of the disc adjacent to which it is adapted to lie,-substantially as specified. "(2) The combination with the frame having a conduit therein, and a furrow-opener disc journaled at an angle on the frame, of a guide or shield extending below the end of the conduit, and in front of the same,-said shield being located within the angle of the furrow-opening disc, so as to stand wholly within the furrow,-substantially as specified. "(3) The combination with the supporting frame having a conduit therein, and a disc journaled on said frame at an angle to the line of draft, as described, of a downwardly projecting shield in front of and below the conduit, said shield being curved at the front so as to lie adjacent to the disc, and being placed wholly within the path of said disc, so as to extend within the furrow formed thereby,-substantially as specified." "(6) The combination with the frame having a supporting trunnion, and an angularly arranged furrow-opening disc thereon, a downwardly projecting shield in the rear of and below said trunnion,-said shield being located between the said disc and a line extending through the cutting edge thereof parallel to the line of draft, a lug or projection on said frame, and a scraper connected to said lug so as to bear on the inside of said disc,-substantially as specified." It is contended for the appellants that, having regard to the then existing state of the art, Packham's improvement was only the result of the application of mechanical skill to the knowledge already acquired and disclosed to the public. And if, in truth, this invention was but a step in the normal progress in the skill of the workman, or the result of the observation of a need, and the provision of a remedy by the exercise of the ordinary skill of those conversant with the subject, it was not entitled to a patent, and the defense would be made out. Reference to authority is not needed to support this proposition, which is elementary. But the fact remains that for many years those in the front rank of the intelligent and ingenious inventors in this department of art |