casing, is that it was bolted to the car with the open side uppermost. Letters patent No. 164,113, to Stephen Ustick, dated June 18, 1875, shows also a unitary casing of the same general construction as Canda's, and having the separate bottom plate such as Canda uses, but does not make an element of claim 1. This facilitated inspection of and access to the apparatus in the spring box or casing.

Letters patent No. 369,774, to F. Peteler, dated September 13, 1887, cover a cast-iron house or casing, in one piece, adapted to receive the rear end of the drop or follower plates and the spring between them. This construction is a plain anticipation of the Canda threesided casing, and was made to be attached to the longitudinal timbers of the truck frame.

Letters patent No. 382,840, to C. H. Starr, dated May 15, 1888, show a cast-iron casing for the draft connections, formed in one piece, having vertical side walls joined by a top plate, the construction being of the U form in cross-section, to open at the bottom. It is there called a "drawspring cage," and was bolted to the under side of the car sill.

Similar constructions are shown in patent No. 417,786, to Hughes, dated December 24, 1889, and patent No. 406,305, to W. A. Post, dated July 2, 1889. Butler's letters patent No. 213,974, issued April 8, 1879, possesses all the features of Canda's claim 1, except the integral casing which Butler made in two parts.

It is also evident, from the specifications of the Canda patent, that a casing cast in one piece and a casing built up of three pieces is an alternative construction. Canda's patent states (specifications, page 1, lines 52 to 60):

"In some cases I find it advantageous to make the side pieces separate, and apply top and bottom plates, as shown in Fig. 3. The interlocking of the plates and side stops and the supporting vertical bolts impart to the case nearly as much strength as it would have if constructed of one single piece of metal, and without occasioning any undue strain."

Speaking of the Ustick patent, Mr. Soule, one of defendant's experts, testified:

"It would appear, however, that it [Ustick's construction] is a form of box or casing with top, sides, and back end formed integrally, and its front end open; and also that it is fitted with a removable bottom plate."

This describes fairly defendant's structure. Ustick's differs from Canda's only in that Canda's has no back end "integral with the top and sides." Soule's opinion that Ustick's "completely fails to meet the requirements of claim 1 of the Canda patent, in that it is not constructed for attachment to the longitudinal timbers of the car," states no patentable difference between Canda's casing and that of Ustick. It required no invention to attach the spring casing to the draft timbers. Butler's casing was thus placed in 1879. The great majority of casings of different inventors were attached to the draft timbers. In fact, all of the advantages claimed for Canda's spring casing are found singly or in parts in previous devices. He admits in his testimony that when his specifications were prepared he did not know of the McGuire attachment, which was an improvement on the Butler drawbar attachment, and which he concedes would, in point of strength

and efficiency of service, be equal to the construction described in his own patent. The history of the art repels the validity of this claim. Again, the necessary construction of the language of claim 1 excludes a device having a bottom, and the structure there claimed shows nothing to sustain the contents of the casing. It is admitted by Canda that the bottom plate is essential to the operativeness of the structure. To meet the objection, complainants insist that the bottom plate must be implied and read into the first claim for the purpose of sustaining it. This is not permissible. "While it may be done with a view of showing the connection in which the device is used, and proving that it is an operative device, we know of no principle of law which would authorize us to read into a claim an element which is not present, for the purpose of making out a case of novelty or infringement." McCarty v. Lehigh Valley Ry. Co., 160 U. S. 110-116, 16 Sup. Ct. 240, 40 L. Ed. 358; F. R. Stearns Co. v. Russell, 85 Fed. 218224, 29 C. C. A. 121; Santa Clara Co. v. Prescott, 102 Fed. 501, 42 C. C. A. 477.

Nor can the first claim be aided by the fact that claims 2 and 7 expressly include as an element a removable bottom plate, or bottom plates. This feature of construction in the latter claims cannot be read into claim 1. Wilson v. McCormick Harvesting Co., 92 Fed. 167, 34 C. C. A. 280.

* * *

The second and seventh claims, which have been quoted supra, are, like the rest of Canda's claims, mere variations of previous devices. The second claim differs from the first, in that it does not call for "a spring casing formed integrally having an open bottom," but is satisfied by any form or construction of casing having the designated bottom plate locked as specified. This claim originally read as follows:

"In a drawbar attachment for railroad cars, the combination, with the draft timbers, of a spring casing permanently attached to the timbers and provided with a removable bottom plate, substantially as specified."

This was rejected on letters patent to Cushing, No. 412,843, dated October 15, 1889. Canda amended it by adding, after the words "bottom plate," "extending the entire length of the casing and locked to the sides of the casing," "substantially as specified." Every element. of the combination is found in prior constructions in the like relation to every other part, and serves the same purpose in the same manner, with the possible exception of the interlocking feature introduced by this amendment. The extension of a removable bottom plate "the entire length of the casing and locked to the sides of the casing" added to the casing nothing new in the art, in the absence of some patentable interlocking device; for a removable bottom plate was the feature of prior constructions. All bottom plates are "removable," unless the casing be cast or formed integrally. Whether it extended the whole length of the casing, or only so far as was necessary to sustain the contents of the casing-which was its only purpose-was merely at matter of preferential construction. The interlocking element of this claim is designed to relieve the vertical bolts, securing the bottom plate to the side plates, from shearing strain. Canda's construction. necessitates such relief, and therefore the interlocking feature was

added. Knight, complainants' expert, admits that this method of relieving the strain on vertical bolts is a familiar mechanical expedient. The claim, being for a combination, is conclusive acknowledgment that its parts are not original. St. Louis Car C. Co. v. National Mall. Co., 87 Fed. 885, 31 C. C. A. 265.

The only locking described in the patent is that effected by the reciprocal relations of the recesses of the bottom plate and the studs of the side plates, which, when the bottom is in place, extend downward into said recesses. As has been said, the principal function of the bottom plate in devices of this class is to uphold the contents of the spring casing and permit them to be dropped out of the bottom when required. Incidentally it stiffens the sides of the casing, when in place; but the same is true of every bottom plate in all the constructions which the art shows when attached to the side plates of the casing. The plates or bars on the under side of the old structure, "Defendant's Exhibit, Strap Drawbar Construction," answered the purpose of sustaining the parts in the case, and permitted them to be dropped out at the bottom, with equal facility. This is also shown, for example, in the patent to Hardy, No. 459,041, in the patent to Brown, No. 363, 112, and in that to Marston, No. 248,940, all of which, not to mention. many others, have the same means substantially for the removal of the inclosed parts and their connections.

Not only, however, is there an entire absence of patentable merit in the combination set forth in claim 2, but the defendant's bottom plate does not interlock with the side plates of the casing. It is seated loosely between the side plates of the casing, and sustained by horizontal cross-bolts, which serve as ties to bind the parts together transversely. It is of skeleton form, and hung on a hinged pin or bolt, so that it is only necessary to change its position, by the removal of the cross-bolts, and allow it to drop down to a pendent position, in order to permit the dropping and removal of the parts in the casing. It does not aid to resist transverse strain on the casing. This is met only by the cross-bolts. In the Canda construction the plate is held to the casing by vertical bolts, which must be disconnected in order to remove the bottom plate for the inspection or removal of the parts. Whether this interlocking feature makes the combination patentable or not is, however, really immaterial; for it is not found in the defendant's structure. Its absence alone defeats the charge of infringement of the combination.

Claim 7 seems to differ from claim 2, in that the spring casing in the former has one or more "removable plates that lock with the sides of the casing." There is nothing whatever in the specifications or drawings suggestive or descriptive of a bottom plate in two or more pieces, or of the manner or application of two removable plates. If this is to be considered as covering any removable plates with any fixed relation with the side plates, the construction is displayed in “Defendant's Exhibit, Strap Drawbar," in Hardy patent, No. 459,041, in the Brown patent, No. 363,112, and the Post patent, No. 406,305. A recess in the plates to interlock with the sides is the only means of locking described, illustrated, or suggested in the patent; and, as has been said, nothing of that character or for that purpose is found in defend

ant's structure. In brief, the seventh claim is only distinguishable from the second by its failure to limit the number of bottom plates or their extent.

A careful examination of the record in this case, and of the claims alleged to have been infringed, is persuasive that their novelty is, in view of the prior art, more than questionable. If they can be accorded any patentable merit, they must be restricted to the precise form which they present, and, thus construed, they are not infringed by the defendant's construction. St. Louis Car C. Co. v. National Mali. C. Co., 87 Fed. 885, 31 C. C. A. 265.

The history of the art presents innumerable examples of this class of mechanism so nearly identical with those here involved that the selection of the elements of a patentable combination from prior devices in this field has become as difficult as the production of original mechanism which would owe nothing to prior inventors. Perhaps the later constructions exhibit more mechanical skill and improved reinforcement of those parts of the apparatus most subjected to strain and injury by concussion; but these advantages are but matters of degree, not of inventive capacity and merit. The art has conserved the generic features of the early devices. The changes introduced of late years in the arrangement of the parts, or the manner of attachment of the casing to the timbers of the car, and relative positions of the drawbar and springs, and other parts of the various devices, are, in the main, modal merely, and have not the essence of invention.

The bill must be dismissed, with costs.

GENERAL ELECTRIC CO. v. WAGNER ELECTRIC MFG. CO.

(Circuit Court, S. D. New York. May 8, 1903.)

1. PATENTS-SUIT FOR INFRINGEMENT-TITLE TO SUPPORT.

A plaintiff shows title to a patent to support an action thereon where it runs to the patentee as assignor to plaintiff, which is equivalent to running to plaintiff as assignee.

2. SAME-EVIDENCE-STIPULATION.

Where a fact is stipulated on the record during the taking of testimony, it is evidence in the case, and cannot be withdrawn by one party without the consent of the other or an order of court.

8. SAME DISTRICT OF SUIT-WAIVER OF OBJECTION.

The Circuit Courts of the United States having full jurisdiction of patent cases, the limitation in respect to the district of residence of a defendant or of place of business and acts of infringement may be waived, and the objection cannot be made after the case has proceeded beyond the pleadings, and into the taking of testimony. SAME-ELECTRICAL TRANSFORMERS.

The Moody patent, No. 591,869, for an electrical transformer, the distinguishing feature of which is the separation of the primary and secondary coils and the core, and the arrangement of passages for the circulation of air for cooling purposes, was not anticipated, and discloses invention. Also held infringed as to claims 4, 5, 6, and 11,

3. Waiver of right as to district in which suit may be brought, see note to Memphis Sav. Bank v. Houchens, 52 C. C. A. 192.

In Equity. Suit for infringement of letters patent No. 591,869, for an electric transformer, granted October 19, 1897, to Walter S. Moody. On final hearing.

Drury W. Cooper and Thomas B. Kerr, for plaintiff.
James H. Bryson and A. C. Fowler, for defendant.

WHEELER, District Judge. This suit is brought by a corporation of New York against a corporation of Missouri having a place of business in this district and its agent in charge upon patent No. 591,869, dated October 19, 1897, and granted to Walter S. Moody, assignor to the plaintiff, for an electric transformer. The specification sets forth:

"The present invention relates to transformers specially intended for very high voltages, as twenty thousand to thirty thousand volts, for example, and has for one of its objects to so arrange the energizing coils that they are well insulated from the surrounding core and from each other, at the same time providing suitable means for ventilation.

"The invention also has for its object to provide a transformer having two complete and separately controlled systems of cooling, one being for the coils and the other for the laminated core.

"In transformers intended for very high voltage, a large amount of insulation is required between the primary and secondary coils, and where this insulation is applied directly to the coils it is very difficult to keep the temperature of the transformer down to a proper degree, owing to the slowness with which heat can be absorbed from the coils through the insulation. To overcome this objection, I form the coils into any desired shape, the turns being insulated from each other in the usual manner, and the coils as a whole may be covered by tape or other insulation, but preferably such insulation is limited in amount. The insulation required to insulate the turns from one another, and any additional insulation applied, when desired, directly to a complete coil, will be relatively small compared with what would be necessary to form a safe insulation between the primary and secondary coils or between the primary coils and the core, and will not prevent the absorption of heat to any considerable extent.

"The insulation thus applied forms a sort of open-work structure having a number of channels or air passages, preferably closed or substantially closed from one another, and open top and bottom to allow a free circulation of air between the different windings and between the coils and insulation.

"It will be seen that there are two separate ventilating systems for cooling the transformer, one for the coils, the other for the iron, and that each of them is controlled independently of the other."

The claims in controversy are:

"(4) In a transformer, the combination of primary and secondary windings with passages extending between the windings for the circulation of a cooling medium, and a laminated iron core with a second set of passages, through which circulates an insulating cooling medium, said sets of passages forming independent cooling and ventilating systems, one for the coils and one for the core.

"(5) In a transformer, the combination of primary and secondary windings, a laminated iron core, passages extending between the windings through which an insulating medium circulates to cool the windings, a second set of passages extending through the iron core independent of the first, in which an insulating medium circulates to cool the iron, and means for regulating the circulation through both sets of passages.

“(6) In a transformer, the combination of primary and secondary windings, a laminated core, means for maintaining an up-and-down circulation