tors, was appointed with power to act in the matter. No action appears to have been taken pursuant to this vote. The application for the receiver was made, not by the corporation, but by four of its stockholders, all of whom, but one, were also creditors of the corporation, pursuant to section 27, chapter 213, of the General Laws of the State of Rhode Island, as amended by chapter 424 of the Session Laws of 1909, which provides:

"Whenever any corporation incorporated under the laws of any other state, and having an estate or effects in this state, is insolvent, * * the su

perior court may, upon the petition of any stockholder or creditor of such corporation incorporated under the laws of any other state, and upon such reasonable notice as the court may prescribe, appoint a receiver of its estate and effects in this state, and distribute the same in accordance with the equitable rights of the parties."

As the Wire Company was a foreign corporation, it could not, under the provisions of this statute, make an application for a receiver, and the weight of the testimony is that the application in question was not made in behalf of the corporation, pursuant to the vote of the directors, but, as stated in the application, in behalf of the petitioners as stockholders and creditors of the corporation.

The assignment of error relating to the refusal of the court below to reopen the case for further evidence raises no question of law. The petitioners, so far as the record discloses, had full opportunity at the trial to present their evidence. The case having been closed, it was discretionary with the trial judge whether he would thereafter reopen the same.

Entertaining these views, we think the court below did not err in dismissing the petition.

The decree of the District Court is affirmed, with costs to the appellee.

WHITNEY v. NEW YORK SCAFFOLDING CO.

(Circuit Court of Appeals, Eighth Circuit. April 2, 1917. Rehearing Denied May 16, 1917.)

No. 4766.

1. PATENTS 328-CONTRIBUTORY INFRINGEMENT-Scaffold.

The manufacture and sale of the hoisting device of the Whitney patent, No. 1,114,832, held on the evidence not to constitute contributory infringement of the Henderson patent, No. 959,008, for a scaffold.

2. PATENTS 259-CONTRIBUTORY INFRINGEMENT-INTENTION.

The question in contributory infringement is whether or not the defendant made or sold his machine or improvement with the intent or purpose of aiding another in the unlawful making, selling, or using of a third person's patented invention, and the burden is on the plaintiff to establish the affirmative of this issue.

[Ed. Note. For other cases, see Patents, Cent. Dig. §§ 400-402.] 3. PATENTS 237—INFRINGEMENT “MECHANICAL EQUIVALENT.”

The term "mechanical equivalent," when applied to the interpretation of a pioneer patent, has a broad and generous signification, while its For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

meaning is very narrow and limited when it conditions the construction of a patent for slight improvement.

[Ed. Note.-For other cases, see Patents, Cent. Dig. §§ 374, 375.

For other definitions, see Words and Phrases, First and Second Series, Mechanical Equivalent.]

4. PATENTS

165-CONSTRUCTION-LIMITATION OF CLAIMS.

Where an inventor has pointed out and claimed in his patent the combination or improvement he claims as his invention, he disclaims and dedicates to the public any other combination or improvement apparent from his specification and claims, not a mere evasion of his own,

[Ed. Note. For other cases, see Patents, Cent. Dig. § 241.]

Appeal from the District Court of the United States for the District of Nebraska; Thomas C. Munger, Judge.

Suit by the New York Scaffolding Company against Egbert Whitney. From an order granting an interlocutory injunction, defendant appeals. Reversed.

See, also, 224 Fed. 452, 140 C. C. A. 138.

Robert H. Parkinson, of Chicago, Ill. (Wallace R. Lane and George Mankle, both of Chicago, Ill., on the brief), for appellant.

1

C. P. Goepel, of New York City, and Paul Bakewell, of St. Louis, Mo., for appellee.

Before SANBORN and CARLAND, Circuit Judges, and RINER, District Judge.

SANBORN, Circuit Judge. This is an appeal from an interlocutory decree based on letters patent No. 959,008 to E. H. Henderson, which enjoins Whitney, the defendant below, from manufacturing or selling scaffold hoisting devices like those shown in patent No. 1,114,832 issued to Whitney on October 27, 1914, on the ground that such manufacture and sale constituted contributory infringement of Claims 1 and 3 of the former patent, which read in this way:

"1. A scaffold consisting in the combination of crossbeams, floor pieces extending between such beams, and a hoisting device associated with each end of each beam, each hoisting device consisting of a continuous U-shaped metal bar extending around the under side of and upward from the associated beam, and a hoisting drum rotatably supported by the side members of such bar."

3. A scaffold consisting of a plurality of U-shaped bars arranged in pairs, a crossbeam laid in and extending between each pair of such U-shaped bars, a floor laid upon said cross-beam, a drum rotatably supported between the upwardly extending side members of each of said U-shaped bars, and means for controlling the rotation of said drum."

This suit was originally brought against Whitney for an infringement of these claims by the manufacture and sale of hoisting machines like those described in letters patent No. 998,270 issued to himn on July 18, 1911. In those machines Whitney used for his hoisting frames metal bars bent in the form of the inverted letter "U," hoisting drums rotatably supported on brackets on the vertical side members of the U-shaped bars, supporting rods of metal connected with and securely fastened to the lower ends of the vertical side members of

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

his U-shaped frames, upon which rods he supported crosspieces or putlogs upon which the planks or sheeting of the scaffold rested without fastening in any way the crosspieces or putlogs to the lower bars of the frames upon which they rested. This court was of the opinion that the making and selling of these machines by Whitney for use by third parties in combination with the crossbeams and floor pieces of the combinations of Claims 1 and 3 of Henderson's patent constituted an infringement of the latter, and it accordingly directed. the issue of an injunction against their manufacture and sale by Whitney. New York Scaffolding Co. v. Whitney, 224 Fed. 452, 460, 463, 140 C. C. A. 138, 146, 149.

[1] After the court below had issued its injunction pursuant to that opinion, the scaffolding company made a motion in this case in the District Court for a similar injunction against the manufacture and sale by Whitney of hoisting machines like that portrayed in his patent No. 1,114,832. The latter machines were called by Whitney, and were known in the trade, as the "Little Wonder Machines," and for convenience they will be so styled, and the machines like that described in Whitney's patent, No. 998,270, will be called Whitney's first machines in this opinion.

The Little Wonder machine consisted of a rectangular frame and a hoisting device. The frame was made of two vertical metal side rods, which were connected by two metal bars fastened to the side rods, one at the top and the other at the bottom of the frame. Each of these bars was perforated by three holes, one at each end, through which the side bars respectively passed and in which they are fastened by nuts, and one in the center through which the steel wire cable suspending from above and bearing the frame, hoisting device, and scaffold passes and works. The hoisting device consists of two automatic clutches "adapted to engage a suspending cable, means for holding the clutches constantly in vertical alinement and for carrying a load suspended therefrom, means for working the clutches repetitiously toward and from each other in such alinement upon the cable, and means for releasing the clutches severally." These clutches are located in two alining clutch boxes, each box has a vertical peripheral split tubular wall, formed in duplicate wall sections marginally contacting with each other. Each box has a cap fitted over the top of its tubular wall and an inverted cap fitted under the bottom of its tubular wall. By means of these caps which are perforated in the center for the movement of the suspending cable, the wall sections are held together, and by means of terminal perforations in the caps for the vertical side rods of the frame the upper box is held in rigid engagement and the lower box in sliding engagement with the vertical side rods. Two duplicate vertically disposed semitubular jaws in each box mounted on springs, registering with each other face to face, held in position by transverse sliding arms working in transverse slots as the jaws approach to and recede from each other, but movable vertically in unison between anti-friction rollers interposed between the walls of the box and the jaws, constitute the clutch. The jaws have internal rib-like teeth to bite the cable which passes between them, and

each jaw has an external wedge-like projection on its back to produce and release the bite as the clutch is made to rise and fall in the box. When in their normal position both clutches grip and hold the suspending cable. The lower clutch, whose box has a sliding engagement with the side rods of the frame, is movable vertically by means of a lever. To raise the load a workman first lifts the free end of the lever, thereby releasing and raising the lower clutch box, and then forces down the lever, thereby bringing the lower clutch into action and releasing and lifting the upper clutch from which the load is suspended. By thus raising and lowering the lever, like a pump handle, he causes the machine with its load, the scaffold frame and hoisting machine, to climb the cable much as a sailor climbs a rope. The first and third claims of patent No. 1,114,832 describe very well the Little Wonder and, when compared with the first and the third claims of Henderson's patent and with Whitney's first machine, which has the U-shaped bar and the hoisting drum and means for operating it rotatably supported between the side members thereof, illustrate the similarities and differences between the Little Wonder and Henderson's machines and Whitney's first machine. Those claims read in this way:

"1. A hoisting machine of the specified class, comprising two automatic clutches adapted to grip alternatively a suspending cable, means for raising and lowering the clutches independently on the cable, and a suspended frame, upheld by the clutches alternately and provided with means for holding both clutches in vertical alinement."

"3. A hoisting machine of the specified class, comprising two automatic clutches, means for holding the clutches in vertical alinement and for carrying a suspended load, means for moving the clutches toward and from each other in such alinement, and means for releasing the clutches severally; each clutch having two coacting, spring-mounted, vertical wedge jaws between antifriction rollers, and being adapted to grip automatically a suspending cable and to be released from that cable."

On the argument at the former hearing in this court of the question of the validity of Henderson's patent and its infringement by Whitney's first machine, counsel for Whitney contended that Henderson's patent was anticipated by letters patent No. 854,959, issued to W. J. Murray on May 28, 1907, which disclosed an inverted U-shaped metal bar, a hoisting drum rotatably supported by the side members of this bar, and a crosspiece or putlog securely fastened to the lower ends of the side members of the U-shaped bar upon which putlog the planks or sheeting of the scaffold rested. Murray, however, had portrayed the members of the pairs of his machines set opposite each other for supporting a wide mason's scaffold with their edges to the wall of the building, with the lower ends of the side members of each pair securely fastened to the same crosspiece or putlog, so that neither of the machines could be knocked down for removal without removing the bolts, or rivets, or nuts, by which it was fastened to the crosspiece or putlog, and so that neither of them could be set up again without again fastening the side members of its frame thereto, nor could these machines without new or different crosspieces or putlogs be used broadside to the building-while the machines of Henderson

were fitted for use with their broadsides to the wall of the building. When Henderson's application for a patent was in the Patent Office, it was twice rejected on Murray's patent and was finally allowed on the argument of counsel that Claim 1 specified that the U-shaped metal bar extended around the under side of the crossbeam or putlog, so that the connection between the U-shaped bar and the crossbeam was absolute and positive, "and no connecting rivets or bolts or other auxiliary means" were employed. The majority of this court were of the opinion that Henderson's method of supporting his crosspieces or putlogs on the lower part of his frame without fastening them thereto so that his hoisting machines could be knocked down and set up again without removing or placing bolts, rivets, or nuts, and so that his machines were fitted for use broadsides to the building, permitted his patent to escape anticipation by Murray's and placed him in that large class of inventors who make slight advances in their art and accomplish the result sought with varying degrees of success, so that on that account each is entitled to his own combination or device as long as it differs from those of his competitors and does not include theirs. 224 Fed. 458, 140 C. C. A. 138. As Whitney's first machine embodied an inverted U-shaped bar, a drum, and means for operating it rotatably supported on brackets upon the side members of his bar, a metal rod fastened to the lower ends of the bar on which rod the crosspieces or putlogs might rest without fastenings, and as it was thus constructed so as to fit it for use broadside to the building, its manufacture and sale for use in Henderson's combinations was held to constitute contributory infringement and was enjoined. Does Whitney's manufacture and sale of the Little Wonder constitute a like infringement of the patent to Henderson and entitle the plaintiff to a like injunction?

1. It was indispensable to proof of such infringement that there should be substantial evidence that Whitney made and sold hoisting machines of the type of the Little Wonder with the intent or for the purpose of aiding others in the unlawful making, selling, or using of the patented invention of Henderson. There is no evidence in this case that Whitney ever made or sold a hoisting machine of the type of the Little Wonder which was fitted for or intended by him for use with an unfastened putlog. All the witnesses who disclosed knowledge of the method of construction of the Little Wonders that Whitney had put out testified that the putlogs in them which they observed had two holes in each of their ends at right angles to the length of the putlogs through which the vertical side bars of the rectangular frame of the Little Wonder passed, so that beneath these putlogs the lower bars of the frames of the Little Wonder, through holes in which the side bars extended, could be fastened in their places by nuts beneath them on the lower ends of the side bars. It is true that the witnesses testified that the holes in the putlogs were large enough to permit them to be held in yielding connection with the side bars. But the material, the controlling fact here, is not that they were fastened in their places on the side bars loosely, but that by means of the crossbars of the frames beneath them through which the side bars