These side plates are

The body of the pliers is composed of two side plates, a b. fixed together by the screws 2 3.4 5. Of these screws, those 2 3 serve as the fulcra of the jaw-levers c d, having at their ends the usual cutters or cutting surfaces c' d'. Each of these jaw-levers has a lip, l, and the end of one meets the end of the other lip just as or just before the two cutting-edges c' d' separate the wire or other meta end to be cut off by them, thus closing the space between the said jaw-levers and side plates, in which is placed the spring f, and preventing the entrance into said space of hard pieces of wire or other articles that would clog the pliers. These lips also serve another essential purpose-viz., that of holding the ends of the spring from displacement and obviating the employment of a separate pin or stud to hold the said spring at one end, as heretofore common.

The screws 4 5 serve as the fulcra of the hand-levers g h, having short arms g' h', to act upon the ends of the longer arms of the jaw-levers and turn them on their fulcra to close the jaws and bring the cutting-edges together. The spring fopens the jaws the instant the clasping pressure on the hand-levers is relaxed.

In order to move the jaw-levers equally at all times and prevent the jaw-levers and body of the pliers turning on the handles, I have provided one hand-lever with a prong, m, having a rounded end that enters a rounded notch in the opposite lever. This one prong and its notch are always in engagement, and so connect the two levers that the body of the pliers cannot vibrate on the screws 4 5, but, on the contrary, the two levers may turn each on its own pivot, both levers always turning the same distance, but, in exactly opposite directions. This connection between the two hand-levers, as described, insures a stiff pair of pliers, that can be handled more readily and accurately than the old form of cutting-pliers referred to, and which are more positive as to the movement of the cutting-jaws.

I am aware, in bolt-cutters, where the short ends of the hand-levers are jointed with the long ends of the cutting jaw-levers, that a series of teeth or cogs have been interposed to cause the hand-levers to be geared together; but in such bolt-cutters one single tooth and notch would not operate to always keep the two hand-levers locked together as to their movement in unison, as is the case with my one prong, m, rounded at its end and inserted within a rounded notch.

I claim

The body composed of the side plates, a b, the independent fulcra 2 3 4 5 for the jaw-levers and hand-levers, the jaw-levers provided with cutting-edges and with lips e, and the hand-levers having short arms g' h', and a prong and notch always in engagement, as described, combined with the V-shaped spring, held, as described, by the lips of the jaw-levers, all as and for the purpose set forth.

One of the defenses set up in the answer is, that Johnson and Thompson surreptitiously obtained the patent in fraud of the rights of the defendants; that the defendants are trustees and directors of a New York corporation, known as the Interchangeable Tool Company; that that corporation was organized in August, 1878, for the purpose of manufacturing cutting-pliers or nippers, under Létters Patent No. 209,677, granted to the defendant Hall, November 5, 1878; that Hall invented certain improvements upon such pliers, and immediately described and explained them to the officers of the company; that the company thereupon caused a model of them to be made, embracing such improvements; that Johnson was employed to make such model of pliers for the company, and made them for the company while in its employ, and under the direction of Hall; that Johnson was in the employ of the company, in making such pliers, from April 20, 1879, until May 1, 1880, during which time the company made and sold upward of 30,000 of such 2016 PAT- -28

pliers, with the knowledge and consent of Johnson, and without any objection on his part, and without notice that he claimed to be the inventor of the whole or any part of such pliers, or intended to apply for a patent for the same; that Hall was the first and original inventor of said original cutting pliers and of said improvements thereon, and assigned to the company the whole of the patent of November 5, 1878, immediately on its issue, and also the whole of said improvements upon such cutting-pliers; that Johnson, after so being in the employ of the company for one year, was dismissed from its service, and thereupon, as the result of a conspiracy between Thompson, Johnson, and one Gustam, Johnson falsely claimed that he was the first and original inventor of said improvements, and applied for a patent therefor, and sold his pretended claim to the invention to Thompson; and that Johnson, without the knowledge of Hall, or of the other defendants, or of the company, applied for a patent for said improvements, falsely alleging that he was their first and original inventor, and surreptitiously obtained said patent, No. 232,975, for said invention of Hall, and for an improvement upon the pliers so patented November 5, 1878. There was a replication to this answer, proofs were taken, and the circuit court entered a decree dismissing the bill, from which the plaintiff has appealed. In its opinion (33 O. G., 1140; 25 Fed. Rep., 906) the circuit court stated, that the question at issue was whether the combination covered by the claim of the plaintiff's patent was invented by Johnson while he was an employé of the corporation; that the plaintiff had sought to prove that a model produced by him, known as Exhibit C, was made by Johnson while he was in the employ of the company; that, on the other hand, the defendants had sought to prove that the model was not inade by Johnson while he was employed by the company, but after he had been discharged from its employ, and for the purpose of supporting a fraudulent claim to an invention really made by Hall, and which claim had been put forth by Johnson for the first time after he had been discharged from the service of the company; and that, upon a full consideration of all the evidence, the conclusion of the court was, that Exhibit C was not made while Johnson was a workman for the company, but was made subsequently to his leaving its employment, and that he was not the first inventor of the combination claimed in the patent issued to the plaintiff.

The testimony is voluminous and contradictory, and, without discussing it, it is sufficient to say that we are of opinion that the evidence establishes the conclusion reached by the circuit court, and that the decree must be affirmed; and it is so ordered.

[United States Circuit Court-Eastern District of Michigan.]

RODEBAUGH ET AL. v. JACKSON ET AL.

Decided February 25, 1889!

47 O. G., 658.

1. RODEBAUGH-SAW-MILL DOG-INVALID PATENT.

The first claim of Letters Patent No. 196, 102, granted October 16, 1877, to George W. Rodebaugh, for an improvement in saw-mill dogs, is anticipated by the patent of Craney, No. 150,534, dated May 5, 1874.

2. LIMITATION IMPOSED BY PATENT OFFICE.

The intimation in Sargeant v. Hall (114 U. S., 38) that the limitations introduced into an application after it was persistantly rejected must be strictly construed against the inventor and in favor of the public, and looked upon as in the nature of disclaimers, means no more than that when under the state of the art and the action of the Office a patentee of a combination has modified and limited his claim he shall be held strictly to the combination as he has described it. It does not debar the patentee from the benefit of the doctrine of equivalents. 3. SAME-MECHANICAL EQUIVALENT.

In such a case, where an infringer has attempted to avoid the patent by the use of a well-recognized mechanical equivalent, the court is bound to look to the state of the art at the time the patent was applied for to determine the limitations of the claim.

4. ANTICIPATION-EQUIVALENT.

When a T-lever had already been used for operating a saw-mill dog, there was no invention in the substitution of an eccentric-lever which was used to perform the same function in a no more effectual manner.

5. SAME-REARRANGEMENT.

The rearrangement of an old combination, where each element of the combination operates practically as before, is not patentable unless a new or greatly-improved result is gained.

6. SAME-NON-INFRINGEMENT.

Where the claim is limited to a lever locking in vertical position, and defendants' lever, like a prior patented lever, locked in a horizontal position, Held that the claim is either anticipated or not infringed.

IN EQUITY.

Mr. Charles J. Hunt for the complainants.

Messrs. Coulter & Griffin and Mr. Harry E. Knight for the defendants.

STATEMENT OF THE CASE.

This was a bill in equity to recover damages for the infringement of the first claim of Letters Patent No. 196,102, issued October 16, 1877, to George W. Rodebaugh, for an improvement in saw-mill dogs. The claim alleged to be an infringement read as follows:

1. The combination of the eccentric-lever E E', pivoted to the standard B at O, with the connecting-strap F, articulated to the arm G of the reciprocatory shaft D, carrying the dog-head, the parts being so arranged that a downward movement of the lever will embed the dog into the log and lock it there, the lever assuming a perpendicular position against the standard out of the way, substantially as described.

The defense was anticipation and non-infringement. BROWN, J.:

A dog is an instrument for holding a log in position while it is being sawed into boards or planks. Formerly the log was supported on the ends of the carriage and was held firmly down and secured against lateral displacement by iron dogs hinged to the carriage and having teeth which were driven into the ends of the log. When the circular saw came into use, the form of the carriage was changed. Instead of supporting the log at the end, it was laid so its side rested on the side rail of the carriage, and was supported its entire length. To hold it in position, two or more movable supports, called "knees,” were placed upon the carriage behind the log. To prevent the rolling of the log, two or more pieces of iron were hinged or hung to the cross-pieces of the carriage, having at their free ends a right-angled hook, which was driven into the log. These were also called "dogs." After a time this arrangement was followed by teeth attached to the knees and operated in various ways. Some were driven down into the timber by blows, and some by means of levers of various shapes. In some cases the teeth moved simultaneously in an upward and downward direction— that is, into the upper and under sides of the log or cantand in others the action was separate. These teeth were not often locked in place; but in a few cases the adjustment of the lever locked them in position. These teeth were also called "dogs; " but the term was also applied to the whole device, which was placed on the knee of the carriage, and included all the mechanism for protruding and retracting the teeth. Under this state of the art the patent in this suit was issued. The patentee Rodebaugh claims an improvement in these dogs, consisting of an eccentric-lever pivoted to the standard upon which the dog slides, the office of which is to raise and lower the reciprocating shaft, which carries the dog-head, by means of a connecting-strap between the eccentric and reciprocating shaft. By the use of this device the teeth of the dog are forced into and withdrawn from the log at pleasure.

In order to ascertain the full scope of Rodebaugh's invention it is necessary to advert for a moment to the first claim of his original application. It reads as follows:

1. The eccentric-lever E E, and connecting-strap F, combined with the vertical shaft or bar D, carrying the dog-head, substantially as described, and for the purpose specified.

This was a broad claim for the use of an eccentric-lever and connecting-strap combined with a shaft carrying the dog-head for the purpose of raising and lowering the teeth, and was rejected by the Patent Office upon the ground that it had been substantially anticipated by Patent No. 163,309, issued to C. R. Ely, for a head-block. This was a combination of a lever working with a cam, the object of which was to elevate and press the dog-head, which was carried upon a cylinder in much the same manner as Rodebaugh's. The ground of the rejection is not

stated; but it is obvious that it must have been upon the theory that the eccentric-lever of Rodebaugh was a substantial equivalent for the weighted lever and cam of the Ely patent. The operation of the two is admitted to be substantially identical, and, in our opinion, the action of the Examiner in holding that there was no invention in substituting the one for the other was correct. Upon this intimation from the Patent Office Rodebaugh thereupon amended his claim and restricted himself to the combination of the eccentric-lever pivoted to a standard, with a connecting-strap articulated to an arm of the reciprocating shaft carrying the dog-head, the parts being so arranged that a downward movement of the lever will embed the dog into the log and lock it there, the lever assuming a perpendicular position against the standard, out of the way. Defendants' theory is that Rodebaugh, having assented to the rejection of his original claim and having substituted another, is bound by the literalism of his new claim; and inasmuch as in the defendants' device the lever when locked does not assume a perpendicular position, as required by Rodebaugh's claim, there is no infringement. If it be broadly true that a patentee who has re-formed his claim under instructions from the Patent Office is thereby debarred from the benefit of the doctrine of equivalents, his position is correct. It is true there is an intimation in the case of Sargeant v. Hall (114 U. S., 86) that the limitations introduced into an application after it was persistently rejected must be strictly construed against the inventor and in favor of the public, and looked upon as in the nature of disclaimers; but on a careful consideration of this and other cases we think nothing more is meant than that where, under the state of the art and the action of the Office, a patentee of the combination has modified and limited his claim he shall be held strictly to the combination as he has described it. Thus in Leggett v. Avery (101 U. S., 259) it is intimated that if an applicant, in order to obtain the issue of a patent, acquiesces in the rejection of a claim thereto, a reissue containing such claim is invalid; but there is no suggestion that the patentee of such reissue is not entitled to the benefit of the doctrine of equivalents. So, in the Goodyear Dental Vulcanite Company v. Davis, (102 U. S., 222-227,) after disclaiming an assertion that the correspondence between the applicant for a patent and the Commissioner of Patents can be allowed to enlarge, diminish, or vary the language of a patent after it is issued, it is said that a patent, like any other written instrument, is to be interpreted by its own terms.

But when a patent bears on its face a particular construction, inasmuch as the specification and claim are in the words of the patentee, it is reasonable to hold that such a construction may be confirmed by what the patentee said when he was making his application. The understanding of the party to a contract has always been regarded as of some importance in its interpretation.

So all that was said in Fay v. Cordesman (109 U. S., 420) is that if the patentee specified any element as entering into the combination, he makes such element material, and the court cannot declare it to be im