springs do not in cross section differ materially in appearance from plaintiffs', excepting that they have no convolute coils. Unlike plaintiffs', they are made of sinuous or wavy instead of round wires, and are connected not by two continuous resilient wire stays, one of which is more resilient than the other, but by two or more rows of resilient wire coiled springs, all of which are above and beyond the helical springs and are not a part of a continuous wire, but are separate and distinct, each extending from one sinuous or wavy arch to the next adjoining only. The added member in defendant's commercialized form of such device, to which member allusion above is made, was inserted at the suggestion of defendant's principal customer, and consists of a thin flat metal strip or bar about one and one-half inches wide, placed vertically and edgewise at or near the rear top edge of the wooden frame of the seat back. Its upper edge is bent over toward the front into an imperfect roll. The wavy arched spring wires are held to its rear side by clips, and pass downward and forward under such bar, their ends being fastened to the upper horizontal metal strip of the spring-supporting frame, although they might be fastened, it would seem, to the front edge of the top of the wooden frame, if the manufacturer should choose so to do.

The plaintiffs' patent must have issued on account of the restrictions placed on their combination of their connecting stays with the arched springs and the offices thereby performed. Plaintiffs' relatively rigid stay is susceptible of much motion, laterally, vertically, and rearwardly. This freedom of movement is attainable only by its location upon the arched springs at a distance from the rigid framework of the seat back. Were it located at or on such framework, it would not be free to move endwise to perform its function of transmitting from one spring to another any lengthwise strains imposed upon it, nor would it move readily forward or rearward, if at all. The portion of the arches extending between the framework and the stay yields with the residue of such arches when pressure is applied to such stay. The yielding and soft qualities of the plaintiffs' spring construction are so pronounced as to cause its rejection by manufacturers because it is not strong enough to maintain and hold in position the hair stuffing, and, if made strong enough to do that, is lacking in resiliency. The weight of the evidence would seem to indicate its impracticability as a working device, if constructed within the terms of the patent. Its construction, moreover, requires expensive machinery. The defendant's added strip or bar is not the equivalent of the relatively rigid connecting stay shown in the patent in suit. It is differently located and does not perform the same, or substantially the same, function or operate in a similar manner. It is so near the top of the seat back and the point at which the ends of the arches are attached, and is so rigid in itself and so firmly held by the numerous wires passing over and around it and attached to the metal frame as to render it incapable of any motion, even before the upholstering is done, which appreciably affects the arched springs, and, after the stuffing and leather cover are adjusted, the application of a considerable force fails perceptibly to move the stay endwise, rearward, forward, or downward. The frictional contact of an occupant's back with the leather covering can produce no noticeable impression on such stay or bar, and such member consequently performs no function in transmitting from one spring to another any lengthwise strains. An essential feature of plaintiffs' spring construction-a feature on which they lay much stress-is therefore wanting in defendant's device. The defendant's arches are not convolutely extended, and in reality terminate at the top of the metal strip or stay which serves substantially the same purpose as an extension upward of the top of the seat back. If such metal strip may be likened to plaintiffs' relatively rigid stay, it must then be conceded that defendant's device is devoid of all arched spring construction between such stay and the trimming rail, and that the transmission of lengthwise strains resides in the resilient coiled spring stay alone. The defendant's structure is commercially operative and successful, and has gone into extensive use. It differs materially from the plaintiffs' in the result attained and the means of attaining it. Conceding the validity of the patent in suit, but considering its place in the art and its questionable utility, to give it a broad construction would operate to discourage rather than promote inventive talent. Infringement is not made out, and the judgment of the trial court is therefore reversed. A discussion of the charge of piracy from the Young and the Schultz & Sweeney inventions so freely made against the plaintiffs is unnecessary. In view of the conclusions reached, defendant's motion to remand to take additional evidence is denied.

An order may be taken in accordance with the foregoing.

LEMLEY v. DOBSON-EVANS CO.

(Circuit Court of Appeals, Sixth Circuit. June 5, 1917.)

No. 2936.

1. PATENTS 32-SUIT FOR INFRINGEMENT EVIDENCE.

The printed date of the filing of the application as shown on the officially printed copy of the patent will be accepted as correct in the absence of objection.

2. PATENTS283(1)-SUIT FOR INFRINGEMENT-DEFENSES-ANTICIPATION.

A patent the application for which antedates that for the patent in suit is a part of the prior art and if anticipatory may be shown in defense of a suit for infringement under subdivision 4, § 4920, Rev. St. (Comp. St. 1916, § 9466[4]), as evidence that the patentee "was not the original or first inventor or discoverer" of the thing patented, since the filing of the application was constructively a reduction to practice by the prior applicant and carries with it the presumption that he had at that time made the invention.

3. PATENTS

328-INVENTION-LOOSE-LEAF BINDER.

The Schade patent, No. 819,461, for a loose-leaf binder, in view of the prior art is void for lack of invention.

Appeal from the District Court of the United States for the Eastern Division of the Southern District of Ohio; John E. Sater, Judge.

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

Suit in equity by the Dobson-Evans Company against S. T. Lemley. Decree for complainant, and defendant appeals. Reversed.

Stuart C. Barnes, of Detroit, Mich., for appellant.
Chester C. Shepherd, of Columbus, Ohio, for appellee.

Before KNAPPEN and DENISON, Circuit Judges, and SANFORD, District Judge.

一.

DENISON, Circuit Judge. In a suit brought by the Dobson-Evans Company against Lemley, based upon the first four claims of patent to Schade, No. 819,461, May 1, 1906, for improvements in loose leaf binders, the District Court thought claims 1, 2, and 4 were valid and infringed, and the usual interlocutory decree was entered. Lemley, the defendant below, brings this appeal. There were several earlier binders of the Schade type. They comprised two or more leaf-holding rings or eyes centrally divided into half rings and with the halves hinged together so that they were adapted to be opened and receive loose sheets with prepared punched holes and then to be closed, whereby the sheets were strung upon the rings. They also embodied a holding cover or plate, whereby the rings and their hinges were retained in proper relative position. The closest resemblance to Schade, in both form and function, is found in Pitt, two years earlier. See Irving-Pitt Co. v. Twinlock Co. (D. C.) 220 Fed. 325; Id. (C. C. A. 2) 225 Fed. 1022, 140 C. C. A. 603; Irving-Pitt Co. v. Trussell (C. C. A. 2) 240 Fed. 730, С. С. А. —; Irving-Pitt Co. v. Blackwell (C. C. A. 8) 238 Fed. 177, C. C. A. See 240 Fed. 730, for drawing. Pitt provided a back plate of the desired length, and bent so as to form, in lateral cross-section, the arc of a circle with inturned lips. Within this back plate and under the retaining lips he put two rigid flat plates side by side, hinged together, so that the plates constituted hinge leaves, their combined width being slightly greater than the chord of the back plate arc. The back plate was made of resilient material, and the result was that the hinge between the two flat plates would form a toggle joint so that they would naturally fall into an obtuse angle, either above or below the line of the lips of the back plate, and be held there by the spring action of the back plate, and their motion in either direction would be limited by the back plate or its lips. To the two opposite hinged plates, Pitt fastened the lower ends of his half rings. When the upper meeting ends of the ring sections were forced apart, the toggle joint would spring into its upper position and the ring would be held open. When the ring sections were closed, the joint would spring into the lower position and hold them there. The resiliency of the back plate, yielding as the toggle-jointed back plates passed the horizontal plane, imparted to the ring sections this capacity to be held in either position in which they were placed. Schade adopted the Pitt structure, except that he substituted for each of Pitt's two flat toggle-jointed plates, to which ring sections were soldered or otherwise rigidly fastened, a continuous wire, the first part of which was held longitudinally and pivoted under one lip of the back plate, the second part of which was bent out into a lateral plane so as to go slightly past the center of the back plate and then back again to the edge of it, forming a hinge leaf, and the remaining part of which was then developed into a half ring in a plane approximately at right angles to the planes both of the first and second parts. When two of these wire sections were opposed and in suitable engagement provided at the point where they met, they constituted a toggle-joint operating like Pitt. This construction is shown in the drawing herewith reproduced and is recited in claim 1 shown in the margin.1

It is not claimed that Schade is anticipated in the complete sense by the prior art, but the defense is that, in view of this art, the change made by him did not involve invention. Rightly to apprehend this art, further structures must be described. By an English patent, Lindner had shown a continuous wire half ring, leaf off-set and edge pivot of a form very close to Schade's corresponding parts; but the two leaf off-sets did not reach each other, and were held in one position by a sliding clamp instead of being held in alternative positions by a spring pressure. Blackmer and Robson also showed two wires, each developed into a half ring, and each containing an off-set portion like Schade. In this, as in Lindner, the two off-set portions did not touch each other, but, unlike Lindner and like Schade, the off-set portion served as a lever which, under spring pressure, held the ring open or closed. An encasing spring member formed an abutment against which this lever rested. Normally, it held the ring closed, and when the ring was forced open, the lever passed the point where the spring would throw it back and the spring held it open. McMillan, instead of using Pitt's flat plates, carried his ring sections themselves to the point of meeting where they were united with a hinge or pivot rod, and he so mounted them in the edges of the base plate that they constituted the spring pressed toggle-joint. The following selected figures from Lindner, Blackmer and Robson, and McMillan illustrate the description that has been given.

[1] The patent of McMillan is No. 794,536, and was issued July 11 1905, on application filed October 13, 1904. The Blackmer and Robson patent was applied for April 28, 1904, and issued August 29, 1905