tending radially from one side, and a bead portion extending between the journals. It is the crank feature which furnishes the aperture. After the Sherman front flap folder has operated to fold an envelope blank, its motion upward is identical with the ordinary releasing operation of the old folders, and when it has reached the upward position an aperture is disclosed. This aperture is due en tirely to the peculiar construction of the Sherman folder, and not to any peculiar movement given to it by an independent part.

We are of the opinion that, upon a proper construction of claims 14 and 15, there is no infringement. Comparing the two devices, not in respect to the point of exit, but in respect to the means by which an exit is secured, it is clear that the defendants' organization involves an original conception, is meritorious and ingenious, and not an infringement.

The decree of the Circuit Court is affirmed, with costs.

HOCKE et al. v. NEW YORK CENT. & H. R. R. CO.

(Circuit Court of Appeals, Second Circuit. April 9, 1903.)

No. 115.

1. PATENTS-INVENTION-MEANS FOR PREVENTING LOSS OF GOODS IN SHIPMENT. The Mockridge patent, No. 493,595, for means for securing railroads and shippers against loss of freight, consisting of a system of numbering applied to the cars and packages, the duplicating of the numbers on checks and shipping receipts, and a temporary receptacle on the car for holding the checks in loading, is void on its face for lack of patentable invention.

Appeal from the Circuit Court of the United States for the Southern District of New York.

For opinion below, see 117 Fed. 320.

Arthur v. Briesen, for appellants.

Robert J. Fisher, for appellee.

Before WALLACE and LACOMBE, Circuit Judges.

WALLACE, Circuit Judge. Error is assigned of the decree of the court below adjudging the patent in suit void upon its face because the subject-matter was destitute of patentable novelty. The patent is for "means for securing railroads and shippers against loss of freight," and was granted Joseph Babbitt Mockridge, March 14, 1893.

The object and general nature of the alleged invention is thus stated in the preamble:

"The object of the invention is to provide a new and improved means for securing railroads and shippers of merchandise against loss of freight, by preventing the merchandise from being sent to wrong places, and keeping a record of the merchandise loaded into a railroad car, so that it can be easily traced, until it finally arrives at its proper destination." "The invention consists in means by which the shipping of the merchandise is controlled

in such a manner as to prevent the merchandise from being loaded into the wrong car at the shipping station; and, secondly, in case it should happen that a package is wrongly loaded into a car, then to detect at once the respective car into which it was wrongly placed."

The claims of the patent are as follows:

"(1) The means for securing against loss of freight consisting of a receipt or other like document containing characters indicating the car designed to receive the merchandise, a separate independent check or ticket containing duplicate characters of the ones on the said receipt so that the check and receipt control each other, and a receptacle held temporarily on the car, and adapted to receive the ticket, bearing the number of the car on which the receptacle is held, the ticket being deposited in the receptacle at the time the merchandise indicated on the ticket is loaded in the car, substantially as shown and described.

"(2) The means for securing against loss of freight, consisting of a shipping receipt, way bill, or other like document containing characters indicating serial numbers and the number of the transporting medium, a separate independent ticket or check containing duplicate characters of the ones on the said receipt, so that check and receipt control each other, and a receptacle placed temporarily on the numbered transportation medium to receive the correspondingly numbered checks or tickets at the time the merchandise indicated by the serial number on this ticket is placed in the corresponding transporting medium, substantially as shown and described.

"(3) The means for securing against loss of freight, consisting of a receipt or other like document containing characters indicating the car designed to receive the merchandise, and characters to designate the merchandise to be shipped, and a separate independent ticket or check containing sets of characters which are a duplicate of the characters on the said receipt or document, substantially as shown and described."

The means described in the specification may be briefly summarized as follows: (1) The cars upon which the merchandise is to be shipped are numbered, the numeral upon each car designating a particular destination; (2) a shipping receipt prepared at the shipping office containing besides the usual descriptive matter the number of the car into which the package is to be loaded, and designating the package by a given number; (3) a check prepared simultaneously with the shipping receipt, containing the number of the car and the numbers of the packages; (4) a removable box placed upon the car for receiving the checks of the merchandise loaded into it. The shipping receipts may be numbered in serial order, when several packages are to be sent to the same address, according to the order of the reception of the packages, and when this is done the check is numbered correspondingly.

These means are used as follows: The truckman, who has say three or four packages of merchandise to deliver to a particular car, receives from the shipping office the check which tells him to which car to take them. He takes them to that car, and deposits the check in the removable box. When the several cars have been loaded, the removable boxes are examined by the clerk in charge of the station, and the checks therein are compared with the shipping receipts. By this examination, if the truckman has made an error and delivered the packages into the wrong car, the error is promptly detected. The specification mentions further means, consisting of a printing apparatus to be used for printing upon the shipping receipt

and the check simultaneously the corresponding descriptive matter. As this apparatus is not made a feature of any of the claims, it is to be regarded as nonessential.

It is as difficult to classify the subject of the patent as it was in the case of Jacobs v. Baker, 7 Wall. 295, 19 L. Ed. 200, and Munson v. Mayor, etc., 124 U. S. 601, 8 Sup. Ct. 622, 31 L. Ed. 586; but whether the patent is to be regarded as one for an improvement in an art, or as one for a machine, we are of opinion that it discloses nothing of patentable novelty. It purports to disclose to the public, and especially to that part of the public engaged in the business of shipping and transportation, an improved method of preventing and rectifying mistakes in the transaction of their business. Such improvements generally suggest themselves as their necessity becomes apparent to the intelligent and enterprising men who usually conduct this kind of business, and it would be surprising, indeed, if the long and extensive experience of forwarders and carriers had not discovered so obvious a method as that which is disclosed. What the patentee seems to have done has been to provide evidence that a certain parcel or lot of merchandise has been deposited in a predetermined place, or, if it has not been deposited there, to denote at what other place it has been deposited. There are various ways of doing this, so familiar that the court can take judicial notice of them. One is by having the person with whom the parcel is deposited preserve a record of it, to be returned for examination to the sender. Another is by having a record kept by a tallyman. Another is by having the truckman or other person making delivery return a voucher from the receiver to the shipping clerk. A common instance is that adopted by express companies who provide their expressmen with a book in which, when the parcel is delivered at a store or house, the receiver signs his name. The patentee has provided a box in which the truckman is to deposit the voucher instead of returning it to the shipping clerk, and has located it at the most convenient place, and where there is the least likelihood of his making the mistake of depositing the voucher in the wrong one. All this evidences good judgment upon the part of one who is experienced in the particular business, but it does not rise to the level of invention.

The decree is affirmed, with costs.

UNITED STATES PEG WOOD, SHANK & LEATHER BOARD CO. V. B. F. STURTEVANT CO.

(Circuit Court, D. Massachusetts. March 25, 1903.)

No. 1,595.

1. PATENTS-ANTICIPATION-CONSTRUCTION OF CLAIMS.

Anticipation is not avoided by the fact that the machine of the patent is capable of a use which that alleged to anticipate was not, where such capacity is not referred to in the claims, which cannot be expanded beyond their terms.

2. SAME-ANALOGOUS USE.

Where the principle of operation of two machines is the same, and they are employed for the same purpose, one may be an anticipation of the other, although the material operated on is different.

3. SAME-MACHINE FOR CUTTING SHOE-SHANK STIFFENERS.

The Lewis patent No. 607,602, for a machine for cutting shoe-shank stiffeners, claim 3, held void for anticipation.

4. SAME-ANTICIPATION.

While a patentee cannot enlarge the scope of his invention by reference to a function of his machine not mentioned in his claims, yet the actual operation of the machine may be shown by other parties as bearing on a question of anticipation.

5. SAME-MACHINE FOR CUTTING SHANK-PIECES.

The Lewis patent No. 675,661, for a machine for cutting shank-pieces for shoes, claims 1, 2, 3, 4, 12, and 19, held void for anticipation, as disclosing no patentable improvement over the mechanism of the machine of claim 3 of the prior Lewis patent No. 607,602. Claim 15, which includes a mechanism for feeding the material to be cut, construed and held not infringed.

In Equity. Suit for infringement of letters patent No. 607,602, for a machine for cutting shoe-shank stiffeners, granted to George Ezra Morton Lewis, July 19, 1898, and No. 675,661, for a machine for cutting shank-pieces, granted to J. Lewis, June 4, 1901. On final hearing.

James E. Maynadier and George A. Rockwell, for complainant. Elmer P. Howe and Benjamin Phillips, for defendant.

HALE, District Judge. This suit is brought for infringement of United States letters patent No. 607,602, dated July 19, 1898, to George Ezra Morton Lewis, for a machine for cutting shoe-shank stiffeners, and of United States letters patent No. 675,661, dated June 4, 1901, to J. Lewis, for a machine for cutting shank-pieces. The complainant contends that the inventions of both patents have been conjointly used by the defendant.

The claims put in issue by this suit are claim 3 of No. 607,602, and claims 1, 2, 3, 4, 12, 15, and 19, of No. 675,661. Claim 3 of No. 607,602 is as follows:

"In a machine for cutting shoe-shank stiffeners, the combination with the cutting block, the knives, and the cam, h; of the reciprocating holder, i, intermediate of the knives, the lever, e', pivoted to the frame, the rods, b', connecting the holder, i, with the lever, e', the roller, o', on the extremity of e', and the spring, g', for pressing the roller, o', against the cam, h, substantially as set forth."

12. See Patents, vol. 38, Cent. Dig. § 89.

The defenses in the case are anticipation and noninfringement. The claim covers the combination of the cutting block, knives, holder, and actuating mechanism for the holder, of which a detailed description is given. The machine as described in the specification and claim is evidently intended for the purpose of cutting the stiffener or shank between the two oblique knives, but it is true that by simple adjustment the machine may be made to cut between the knives either shank stiffeners or a piece of waste. It appears that the machine has been generally used to cut waste pieces between the knives. The knives operate simultaneously, as appears from the drawing and from the model, although no statement of this simultaneous action is made in the claim.

On the question of anticipation, the defendant refers to several patents shown in the prior patented art, but the leading question of anticipation is raised by the so-called Pulsifer machine. The testimony shows that, in 1892, J. Roak Pulsifer, of Auburn, Maine, had constructed for him a shank-cutting machine for cutting shank pieces with beveled edges from strips of leather board. The original machine was burned in a fire in 1892, but a large number of parts of the original machine have been found and are offered in evidence; a model of the machine, which presents it as in actual use, is before the court. The testimony convinces the court that the machine was in actual and continuous use during several months of the year 1892, and that it cut during that time about 15,000 shanks every working day. The machine is a double machine. It consists of a frame mounted on legs, carrying two main shafts connected together, operating two independent knives for cutting shanks. A cutting bed was provided, in which the original zinc-cutting block was secured, and two knives were made to slide simultaneously in paths obliquely inclined to each other and to the cutting bed. The knives were carried by carriers mounted on slides, which reciprocate in guides, and are actuated by cams mounted upon the main shaft. The cams operate simultaneously, and force the knives into the strip to be cut. Springs are employed to withdraw the knives after they have been forced downward to make their cuts. There are no intervening connections between the cams upon the main shaft and the knife frames, the cams acting directly upon the knife frames. In the center of the shaft is an eccentric for actuating the holder, which engages the material between the knives, and holds the same during their cutting action. The features of the machine are a cutting bed, simultaneously-acting, oblique cutting knives which move towards and from the cutting bed to cut out a shank from the material thereon, a holder for holding the material during the cutting action of the knives, and means for actuating the holder from the main shaft. The machine was not provided with any feed-roll, or any means for feeding the material. The material was fed by hand.

In attempting to differentiate the machine made under claim 3 of the Lewis patent from this Pulsifer machine, the attention of the court is called by the complainant to the fact that the knives of the Pulsifer machine are constructed and arranged solely for cutting shank-pieces between them, and that it cannot be arranged to operate in any other