ber, into slots in the collar of the strut on the concave side of the cambered beam, as illustrated by this cut: The purpose of this wedge is to take up the slack between the collar and the compression member which results from bending the beam, and to prevent a twisting or torsional action of the compression member which is caused by this slack, and which sometimes produces a cross bending or buckling of the beam, and always results in lost motion in machines of this character. The appellee has not adopted this curved key or these slots in the collar of the strut, but it uses a straight wedge driven longitudinally along the concave side of the compression member, between it and the collar of the strut, to accomplish the purpose of Robischung's device. Neither the intuition of the inventor nor the skill of the mechanic is required to suggest the fitness of a wedge to take up slack, to prevent lost motion in, or to tighten the loose members of, a mechanical device. Its fitness for these purposes is common knowledge, and has been taught by the common experience of mankind. The argument of counsel for the appellants is, however, that this is not a patent for a wedge, but for the new combination of a wedge with the brake beam of Hien. But it is a conclusive answer to this contention that there is no more invention in the combination of a wedge of the usual form, discharging its customary function of tightening the parts of a mechanical device, with Hien's machine, than there is in the discovery of the wedge itself and its common use for this purpose. If this were not true, every combination of an old machine with a wedge, performing the function of tightening its parts, would constitute an invention. In this way it clearly appears that, if either of the two claims of this first patent to Robischung is for the combination of a common wedge, like that used by the appellee, with the brake beam of Hien, in the customary way in which the appellee has used it to take up the slack in the device or to tighten the parts of the brake beam, there is no invention in conceiving that combination. If, therefore, either of the combinations specified in these claims was patentable at all, it was because it united the new element of a curved wedge driven across the concave side of the compression member, through the slots in the collar of the strut, with the old combination of Hien; and, since the appellee does not use this new element, it is not guilty of infringement of these claims, and there was no error in the conclusion of the court below upon this issue. The new element in the combination specified in claim 5 of the second patent to Robischung was the "interposed locking device for preventing any alteration in the camber of the beam." The purpose of this contrivance was, not to lock the nuts, but to detect any change in the camber of the beams made by unauthorized employés of the railroad companies by turning the nuts on the tension member for the purpose of taking up slack in the system of brake levers. Unauthorized changes of this character were liable to impair the utility and to destroy the efficiency of the brake beams, and the patentee was seeking an artifice that would detect any tampering with the nuts and any change in the camber of the beams. He accomplished his object by interposing between the nut seat and the nut on the end of the tension member a frangible locking plate or disc with a lip which, the patentee says in his specification, "having once been turned up into position to hold the nut, b, cannot thereafter be removed and replaced without destroying the utility of the locking device." This frangibility, this certainty that the lip of the locking plate cannot be removed and replaced after it is once turned up over the nut, is the essence, the principle, of this invention; and the issue here is whether or not the appellee has adopted it. The latter uses a locking plate whose lips are adapted to turn up over the nut and to lock it in place in substantially the same way as does the lip on the disc of the patentee. But it is confended that the plate of the appellee is made of tough or pliable material, so that the lips cannot be broken or the utility of the locking device destroyed by removing and replacing them, but that they may be turned up over the nut, rolled back, and turned up again several times without separating them from the plate. The evidence upon this question is conflicting. On the one hand, there is a brake beam of the appellee from which the lips of its locking plate have been broken, and there is the fact that no locking device is necessary to hold the nuts on the tension rod of a cambered brake beam; while, on the other hand, the testimony of two witnesses is presented to the effect that the discs of the appellee are made of material so tough and pliable that they withstand several removals and replacings without breaking. The court below, after a careful examination of this conflicting evidence, found that the appellee's device was not made of frangible material, that it was therefore not adapted for use as a detector, that it lacked the essential principle of Robischung's invention, and that it did not constitute an infringement of the fifth claim of his second patent. This finding and the decree which followed it are presumptively correct, and under the established rule they should not be disturbed, unless it appears from the evidence with reasonable certainty that they are the result of a serious mistake in the consideration and decision of the question of fact which conditions them. The evidence of the infringement of this device is too weak, uncertain, and conflicting to convince of any mistake in the finding and conclusion of the court below, or to warrant a reversal of its decree upon this claim, and for that reason its conclusion must be sustained. Letters patent No. 345,093 disclose the facts that they were issued to George Westinghouse, Jr., on July 6, 1886, upon an application which he made on May 18, 1886. The only claim of this patent here in suit is the sixth, which reads as follows: "(6) In a brake beam, the combination, substantially as set forth, of a tie bar, a double inclined truss bar, and an interposed king post or strut, having a slot for the reception of a brake lever between the tie bar and the truss bar." The new element in the combination of this claim, which the appellants contend distinguishes it from those shown in the prior history of the art, is the slot in the strut between the tie bar and the truss bar for the reception of the brake lever. Counsel for the appellee deny this contention of the appellants, and insist that this claim was anticipated by the patent to Wellington, No. 145,603, dated December 16, 1873, and the patent to Westinghouse, No. 243,416, issued June 28, 1881, and that the patentee Westinghouse abandoned this device to the public, and placed brake beams, which contained this slot in the strut and embodied the principle of this claim, on sale more than two years before he applied for this patent. The Car-Builders' Dictionary of 1879 contains, at page 448, an illustration which shows the patentee's iron brake beam, with this slot in the strut between the tie rod and the truss rod for the purpose of receiving a brake lever, in the same way in which it is claimed in this patent, issued seven years later. A circular of the Westinghouse Air-Brake Company, which one of the witnesses testified had been among his files since the year 1882, was produced, and this witness said that one of the plates of this circular pictured this slot in the strut of this iron brake beam of the patentee. Two witnesses testify that the Chicago, Burlington & Quincy Railway Company used in 1884 Westinghouse iron brake beams which contained these slots in their struts between the truss rods and the tie rods for the reception of the brake levers. A voucher of the Chicago, Burlington & Quincy Railway Company, dated in April, 1884, for the purchase by it from the Westinghouse Air-Brake Company of 98 iron brake beams, was introduced in evidence, and the parties to these suits stipulated that the "book of material received" of that railway company for the year 1884 contained the following entry: "April 17, 1884. Car No. 10,465. Who from-Westinghouse A. B. Co. Invoice date-4/10. Material-98 iron brake beams. -And that the two witnesses who had before testified to the use of brake beams with slots in the struts on that railroad in that year would, if recalled, testify that the 98 iron brake beams referred to in this voucher and in this storehouse record were the same beams, and that they contained the slots in the struts between the tie rods and the truss rods for the reception of the brake levers in exactly the same form as that claimed in this patent. There is nothing in the record in this case which contradicts or impeaches this evidence, and it convinces beyond a reasonable doubt that more than two years before George Westinghouse, Jr., applied for this patent he had abandoned to the public the slot in the strut of his brake beam between the tie rod and the truss rod, and had advertised and placed on sale iron brake beams which contained this specific element, and these brake beams had gone into public use. Rev. St. § 4886. For this reason, and also because we are not convinced that the court below was in error in its conclusion that the combination here disclosed was anticipated by the prior patents to which reference has been made, the patentability of the combination specified in the sixth claim of this patent No. 345,093 cannot be sustained. Manufacturing Co. v. Mellon, 58 Fed. 705, 7 C. C. A. 439, 19 U. S. App. 239; Craig v. Lumber Co. (C. C.) 72 Fed. 173. The last subject for discussion in these suits is the second claim of letters patent No. 430,755, issued to Henry B. Robischung on June 24, 1890. It reads: "(2) A clamp or yoke, having flanges provided, at or near their extremities, with inwardly projecting lugs, which limit the closing of the flanges, substantially as and for the purposes specified." This contrivance depends for its novelty and patentability solely upon the inwardly projecting lugs on the ends of the flanges of the clamp, which limit their closing. It is not claimed that there was any invention in devising or combining the other elements of this device. The function of the clamp is to attach the brake beam to the safety chain. The following cut is an illustration of it: Fig.53 In operation the lower cylindrical portion of this yoke incloses or clamps the brake beam, while the flanges and the bolt, 5, hold the safety chain. The bolt, 5, and the nut, 6, upon its end, draw the flanges of the clamp towards each other, until the beam is held fast by the clamp. This clamp, with its bolt and nut, was an old device, and the new thing which Robischung did, and which he claimed as his invention here, was to interpose the lugs, 3, upon the ends of the flanges, to prevent them from approaching each other too closely. The evil he sought to remedy he stated in his specification in this way: "Where the usual clamp and bolt are used to connect the safety chain with the beam, the tendency of the bolt is to cause the clamp to bind on or rigidly hold the safety chain, and the tendency of the chain is to loosen the bolt." He described the object he sought to attain in these words: "A second feature consists in providing said clamp with lugs, or projections, which are so placed as to limit or restrict the closing of the clamp, to pre vent its binding on the safety chain, and at the same time to increase the grip of the clamp on the beam." The contention of counsel for the appellants is that these lugs have two functions, the creation, in combination with the bolt, of a spring grip in the clamp, and the prevention of the binding of the safety chain between the flanges. Let this be conceded. Still the means by which these objects are attained is a simple device to limit the closing of the flanges. The desideratum, and the only desideratum, which Robischung needed, the only one he sought or found, was this obvious contrivance to prevent the flanges or jaws of this yoke from closing too tightly. There are some mechanical devices so obvious and appropriate for the performance of their accustomed functions that the common knowledge and experience of those unskilled in mechanics, to say noth of those learned in the art, at once suggests their use when the results which they customarily attain are desired. Projections or lugs on approaching jaws or flanges, for the purpose of limiting their closing, are surely among these contrivances. The moment the want of this limitation is felt, projections on the jaws or flanges naturally occur to those unskilled, as well as to those skilled, in the art, as the most obvious and appropriate means to fill the want. There can be neither discovery nor invention in applying a remedy so plain to, or in combining a contrivance so obvious with, an old mechanical device which needs it. There was, therefore, no invention in interposing the inwardly projecting lugs between the flanges of this clamp, or in combining them with the old elements of that device, to limit the closing of the flanges, in order that they might not bind the chain, and that the yoke and bolt might grip the beam with a spring clamp; and for this reason the second claim of patent No. 430,755 is void for want of patentable novelty. Hollister v. Manufacturing Co., 113 U. S. 59, 72, 73, 5 Sup. Ct. 717, 28 L. Ed. 901; Manufacturing Co. v. Mellon, 58 Fed. 705, 7 C. C. A. 439, 19 U. S. App. 239. The discussion of the numerous issues presented in these suits is now completed. In accordance with the conclusions which have already been announced, the decree in Chicago Railway-Equipment Company v. Interchangeable Brake-Beam Company must be affirmed, and the decree in National Hollow Brake-Beam Company and Chicago Railway Equipment Company v. Interchangeable Brake-Beam Company must be reversed, and that suit must be remanded to the court below, with directions to enter a decree in favor of the appellants and against the Interchangeable Brake-Beam Company for an infringement of the second claim of letters patent No. 361,009, and for the usual injunction and accounting, and to take such further proceedings in that su as shall not be inconsistent with the views expressed in this opinion; and it is so ordered. |