In the suit below the appellant alleged infringement of three patents, owned by appellant, and relating to improvements in dry press brick machines. The patents in question are No. 429,296 granted B. C. White and James A. Boyd, June 3, 1890; No. 455,374 issued July. 7, 1891 to B. C. White; and No. 488,622 issued December 27, 1892 granted to B. C. White.

The particular claims of the above patents charged to be infringed are claim ten (10) of the patent of 1890; claims seventeen (17) and twenty-three (23) of the patent of 1891; and claims sixteen (16), nineteen (19) and twenty (20) of the patent of 1892. Claim ten (10) of the patent of 1890 above referred to reads as follows:

"The combination of a mold, upper and lower plungers, toggle-arms connected with both plungers and movable vertically at both ends with the plungers, a toggle-operating beam fulcrumed between its ends and connected with the central joint of the toggle, and a stationary stop or stops located in position to engage the upper plunger and limit the descent of the same, and thereby operating to determine the vertical position of the plungers within the mold at the time of greatest compression, substantially as described." Figure two (2) of the drawing of the above patent will serve to show the element of construction alleged to be infringed by the appellees.

It is contended by appellees that patent No. 395,871, granted January 8, 1889 to J. J. Brewis is an anticipation of the novelty of any invention included in the tenth claim of the patent of 1890.

Figures seven (7) and eight (8) of the Brewis patent are illustrative of the elements of this patent and appear below:

"In Fig. 7 I have shown an adjustable grooved shelf for giving the two pressures on opposite sides of the brick as has been indicated; while in Fig. 8 I have shown an adjustable stop A, secured to the cross head R, which allows the upper plunger to enter the mold box a certain and pre-determined distance so as to give the necessary amount of pressure to the top of the brick until stop A strikes the top table and arrests the further downward movement of the upper plunger. The lower plunger is now raised by the straining of the toggles so as to exert pressure on the brick, and in this way first a top and then a bottom pressure is exerted on the brick."

"In a brick machine of the character decribed, the adjusting stop or bolt A secured to the cross head R, as described, whereby the downward movement of the plunger is arrested as set forth."

Claims seventeen (17) and twenty-three (23) of the patent of 1891 are for certain mechanism to secure to the operation of the machine the desired variable movements, and read as follows:

17. The combination, with a mold and reciprocating feed-box, of a hopper resting in contact with the feed-box, the part of said feed duct or hopper which is in immediate contact with the feed-box being movable freely toward and from the feed-box, whereby gravity tends to hold the said hopper in contact with the feed-box, substantially as described.

23. The combination, with a mold and stationary feed-hopper, of a reciprocating feed-box, a mold-table provided with a flat guide-surface sustaining the feed-box, oscillating arms for actuating the feed-box, and connecting-rods uniting the feed-box to the said arms, said connecting-rods being joined to the oscillating arms and to the feed-box by pivotal connections constructed to rigidly hold the connecting-rods parallel with the feed-box, and means for separately adjusting the lengths of said connecting-rods, substantially as described.

Claims nineteen (19) and twenty (20) of the patent of 1892 are claims for mechanical design, their purpose being to concentrate in a supplemental mechanism certain operating parts of the main machine, and are set out herein below:

19. A frame for a brick-press, comprising two parallel side plates provided upon their inner faces with guides for the vertically movable parts of the machine, and rigidly connected with each other, said plates extending downwardly to the horizontal base or foundation on which the machine rests, and a separate frame for the driving gear of the machine secured against the outer surface of one of the side plates and also extending downwardly to the said base or foundation substantially as described.

20. A brick machine, comprising upper and lower plungers, a toggle for actuating the same, a crank-shaft for actuating said toggle, a main frame consisting of parallel vertical side plates provided on their inner faces with bearings for the vertically movable parts of the machine, and provided with bearings for said crank-shaft, a gear wheel attached to the crank-shaft outside of one of the frame plates, a driving gear embracing a gear-pinion engaged with said gear-wheel on the crank-shaft, and a separate frame for said driving gear secured to the outer surface of the main frame, substantially as described.

Charles K. Offield, for appellant.

E. E. Wood and W. R. Wood, for appellee.

Before JENKINS and GROSSCUP, Circuit Judges, and BUNN, District Judge.

After the foregoing statement of facts, GROSSCUP, Circuit Judge, delivered the opinion of the Court.

We shall first deal with patent No. 429,296 and its tenth claim, that being the one which is infringed, according to the averments of the bill. The purpose of the mechanism described in this patent is to bring about such a movement of the upper and lower plungers, that

the upper plunger will come to a stop, while the lower plunger continues to move, thus exerting pressure from below upon the clay, the upper plunger acting only as a resistant. It is said, that in this way, there is obtained greater uniformity in the density of the brick manufactured. Excepting the stop, whereby the upper plunger's motion is arrested before the toggle governing the lower plunger's movement is entirely straightened out, the mechanism bringing this about is admittedly old.

In our judgment, the mechanism, including the stop, is substantially anticipated in Brewis patent No. 395,871. The only difference between the combinations is, that in appellants' patent, the stop is placed on the table, while in the Brewis patent, it is inserted in the plunger. In both cases the function of the stop is the same. Doubtless the transfer from the plunger to the table is attended with advantage, such as the prevention of mud clogs, but this is incidental merely, and does not seem to us to rise to the plane of patentable invention. It would have been obvious to any mechanic who already knew the advantage of getting pressure from below, and was seeking to get rid of the incidental disadvantage of the mud clogs.

An effort is made to escape the Brewis patent as an anticipation on the score that appellants' invention was conceived prior to the filing of the Brewis application. This claim, to be made effective, must be proven with reasonable certainty. No such proof exists in the case. Taking appellants' testimony on this point at its best, and it leaves us in grave doubt respecting the claim thus made.

We come now to patent No. 455,374. The novelty here claimed is that it secures to the hopper, from which the clay is formed, the condition of being a float. This is brought about by means of a telescoping mechanism, whereby the hopper is kept to its place laterally, while allowed to rise or fall vertically; and claim seventeen is designed to cover these mechanical means.

But appellee does not employ this telescoping mechanism. In appellees' mechanism, the hopper-following the Andrus patent No. 286,892-is fastened to a side bar by means of a screw. True, appellants insist that in the Andrus mechanism the screw was intended to be kept closed, while in appellees' mechanism the screw can be left loose, whereby having motion through a slot, the hopper will obtain vertical motion without affecting its horizontal motion. But it is not shown to our satisfaction that appellees purposely, and as a part of the operation of their machines, leave the screw loose. Nor would such fact, if true, constitute appellees' mechanism an infringement of appellants'. The appellant has no patent on the mere fact that its hopper floats; its patent is confined to the mechanism that brings about or controls such float; and as we have seen, the mechanical means employed in the patent are, in this respect, distinctly differentiated.

Respecting claim twenty-three of the same patent-covering mechanism that gives to the guides feeding the machine, an oscillating motion, vertical but not lateral, it is enough to say that this is clearly embodied in the previous patent to White not sued upon in this case. Respecting claim sixteen of patent No. 488,622-covering the use

of a wood front in the feed box-the proof satisfies us that machines built previously under the Andrus patent of 1895, had such wood fronts.

Claims nineteen and twenty of the same patent are meant to cover the conception of concentrating into the supplementary machinewhere the power is applied-all the bearings of the whole machine, rather than have such bearings divided between the supplementary and the main machine. The advantage is that it enables the machine to be taken apart for the purpose of transportation. This, at most, is mechanical design, and is in our judgment, anticipated in the Andrus invention.

The decree of the Circuit Court is affirmed.

NATIONAL NEWSBOARD CO. v. ELKHART EGG CASE CO.❤

(Circuit Court of Appeals, Seventh Circuit. April 14, 1903.)

No. 939.

1. PATENTS-Infringement-PAPER BOARD.

The McEwan patent, No. 492,927, for a paper board made from newspapers or other printed paper by a process described, the essential feature of which is the retaining of as much of the oils contained in the printer's ink as possible, instead of eliminating as much as possible, as was done in the prior art, by means of alkalis, is infringed by board made by a process having the same end in view, and which is only colorably different, by the use of a slight quantity of alkali, and substituting cold water for hot in one part of the process.

Appeal from the Circuit Court of the United States for the District of Indiana.

For opinion below, see 115 Fed. 328.

The suit in the Circuit Court was to restrain infringement of letters patent, No. 492,927, issued to Robert B. McEwan and others, for a new and useful improvement in paper board. The bill was dismissed for want of equity, and from this order this appeal is prosecuted.

The material portion of the patent, together with the claim is as follows: “Our invention relates to the manufacture of paper-board, box-board and the like from newspapers or other similar printed white paper.

Our object is to obtain a quality of board which is superior to the different varieties now on the market, but which can be produced at less cost than any of the said varieties of board of a quality approaching that of ours.

In the manufacture of our improved article we preferably use, on account of its cheapness, its freedom from size and its softness, printed newspaper or other printed paper possessing the characteristic properties of the ordinary paper upon which newspapers are printed, and we have found that old copies of newspapers or the over-issues can be bought up at low rates and utilized for our purpose.

We have found that our improved product can be manufactured most economically and with the best results by following the process which is described below, but it will be understood that the product can be obtained in other ways. In the process referred to we first cleanse the stock from dust and foreign matter and soak it in hot water until it is thoroughly soft. Without permitting it to cool we then transfer it to the beating-engine, and when the pulp is sufficiently beaten it is allowed to pass to the stuff-chest from which it is pumped to the making-cylinder vat, and at all times it is kept as hot as possible under the circumstances. We find that this process • Rehearing denied May 15, 1903.

is expeditious because when the ink on the paper has once been softened by the hot water it is thereafter kept soft instead of being set again by the use of cold water at any point, and the permanent particles of the ink which are not dissolved and washed away are therefore during the beating more readily subdivided with exceeding minuteness and are thoroughly and uniformly distributed throughout and blended with the fibers.

Our novel product, whether made by the process above described, or by any other which may be used in its stead, is a board which has the permanent particles of printers' ink minutely subdivided and uniformly distributed throughout its body to produce a smooth and even tint throughout, while the strength of the fibers has not been impaired by more or less expensive attempts to bleach out the ink.

We desire it to be understood that by the term "newspaper" as used herein, we mean to include paper upon which newspapers, circulars, and the like have been printed and we propose generally to use old copies of newspapers and over-issues for the manufacture of our product. It will also be understood that in practice, if so required for special purposes, we may mix with the newspapers a slight proportion of other paper or of raw fiber. We claim as our invention

As a new article of manufacture, a paperboard 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." The appellees manufactured their board substantially as follows: The newspaper stock was put in a rotary boiler, with one per cent. or less by weight of soda ash, and the usual quantity of water to cover the stock while it was being cooked. The temperature is not stated. The hours of boiling are variously stated-appellees and their witnesses disagreeing in this respect. After the boiling, the stock was beat in cold water. The further facts are stated in the opinion of the Court.

Arthur v. Briesen, for appellant.

Horace Pettit and John M. Van Fleet, for appellee.

Before JENKINS and GROSSCUP, Circuit Judges, and BUNN, District Judge.

After the foregoing statement of facts, GROSSCUP, Circuit Judge, delivered the opinion of the Court:

The patent is for a new product. This product differs from antecedent paper board in that it contains oils, commonly found in ink, which give to the board a toughness and elasticity hitherto unknown. The board can be manufactured from old newspapers, the ink oils formerly eliminated, being now utilized; and this, though incidental, is a valuable feature of the patent. The validity of the patent has been sustained in the Circuit Court of the United States for the District of Connecticut; and in the Circuit Court for the District of New Jersey; and is admitted in the answer of appellees.

Prior to the patent in suit, newspapers were sometimes utilized in the manufacture of paper board; but in such process the effort was to separate the carbon of the ink from the oil-the oil being taken out by alkali and bleaching, leaving the carbon for coloring matter. The alkali employed usually was soda ash, in quantities from ten to twenty pounds per one hundred weight of paper, in addition to the solution left over from the preceding operation; its causticity sometimes being increased by boiling with caustic lime. In this way the oil of the printing ink was converted into soluble soap, and thus washed or bleached out of the pulp fibre.