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ing machines made and put upon the market machines containing, among other features, divided or broken pressure rollers. These machines proved useful and acceptable to the trade, and in August, 1878, undoubtedly for the purpose of securing to this complainant the exclusive right or monopoly in the market for this class of machines, Mr. Doane, president of the complainant company, secured from Goodrich and Colburn an assignment of their original patent, and obtained the reissue now before the court.
The original patent contained four claims, the first three of which relate to features not involved in this suit, and the fourth claim was intended to cover so much of the device as related to the divided or broken pressure rollers. The reissued patent contains eight claims, the first four being substantially the four claims of the original patent; and the fifth, sixth, seventh, and eighth all relate to the divided pressure rollers, and are intended to claim and cover more fully and particularly this characteristic of the machine. The fourth claim of the original and reissued patent, in substance, is for “the combination of the springs, E4, E4, with the yokes, E3, E3, the frames, E2, E2, E1, E1, and the rollers, E, E, as herein described, and for the purposes set forth." The new claims in the reissue state. moré minutely the operation of the machine and the combination of these parts with the traveling bed and other parts of the machine. If these new claims are intended to be and are an expansion of the claims of the original patent so as to enable the present owners of the patent to claim elements which the original patentees did not see fit to claim, then they are undoubtedly void under the rule established by the supreme court in Miller v. Brass Co. 104, U. S. 350, and Campbell v. James, 104 U. S. 356; while if these new claims are only restatements of the functions and mode of operation of the elements of the fourth claim in combination with the other parts of the machine, then they are but another mode of formulating the old fourth claim. The original fourth claim was for the rollers, frames, yokes, and springs, as shown and described in the specification, acting, of course, through and with the other parts of the mechanism to make an operative machine; and, in my estimation, a claim of a combination of those elements of the old fourth claim with the other parts of the machine does not add anything to that old fourth claim, because the operation of those elements with the other parts of the machine, like the traveling bed or cutter-heads, was implied or understood in the original fourth claim. I shall, therefore, confine myself
to the question whether the machine made by the defendant infringes the fourth claim of the reissued patent.
In the specification of the reissue this feature of the patent is described as follows:
“ The pressure rollers, E, E, figures 2, 3, and 4, are connected to independeut swinging arms, E1, E1, E2, E2, so that they are free to follow the surface of the article to be planed; the journals of the rollers having boxes so arranged that this action can take place. E3, E3, figure 4, are yokes, the ends of which rest upon the arms, E1, E1, E2, E2. Upon the middle of these, yokes E4, EA, pressed, so that the arms E1, E1, E2, E2, are pressed constantly downward against the work.”
It will be seen from this description that the independent swinging arms which carry upon their forward ends the pressure rollers are a distinctive feature or element of the complainant's device. The function and mode of operation of these swinging arms is such that either end of the roller may rise without raising the opposite end, thus giving to these rollers an adjustable element which enables them to adapt themselves to the surface of the lumber on which they are to operate.
The defendant’s machine contains a divided roller, or two rollers, the united length of which reaches across the bed of the machine; but these rollers are fixed on rigid frames which have only & vertical motion, and the rollers cannot be tilted or one end raised, while the other remains stationary or is not raised so much. There is nothing in defendant's machine which corresponds to these swinging arms in complainant’s machine, or which can be deemed the equivalent of these arms.
The characteristic which these arms impart to complainant's device is not found in defendant's machine. The defendant's rollers must rise vertically in a line parallel to the bed of the machine.
If complainant, by the new claims in the reissue, intends to cover all divided rollers or machines where transverse pressure rollers are used in sections or parts, then the proof shows that more is claimed than can be allowed by the state of the art when these patentees entered the field, because the English patent to Gracie clearly shows several pressure rollers acting independently across the bed of a planing machine; and the same feature is also shown in several other English patents which are in proof, although not so nearly identical in mode of operation and effect as those shown in the Gracie patent.
I am, therefore, of opinion that the true and only allowable construction of complainant's patent requires that the pressure rollers shall be used in combination with the independent swinging arms which are described in the specifications, and that complainant cannot by the reissue, be permitted to expand the claims of the patent so as to cover all divided or broken pressure rollers; and inasmuch as defendant does not use the swinging arms nor the complainant's combination of those arms with his pressure rollers, there is no infringement. The bill is dismissed for want of equity.
WISNER and others v. Dodds.*
(Circuit Court, S. D. Ohio, W. D. January 3, 1883.)
PATENTS_PRACTICE ON REFERENCE-PRODUCTION OF BOOKS ON CROSS-EXAMINA
Upon a reference of a patent cause to a master to take an account of damages, etc., one of the complainants testified as to the cost of manufacturing and selling the patented article in controversy, the number manufactured and sold by his firm, etc. Held; that defendant, upon cross-examination, is entitled to the production of the books of witness' firm, but complainants may, if they so elect, withdraw the witness and his testimony as far as given.
BAXTER, C. J. In this case—which was a suit in equity to enjoin an infringement of the patent therein mentioned, and for an account of damages, etc., for alleged part infringement thereof-a decree was rendered in complainants' favor, and a master ordered to take and state the account. John W. Stoddard, one of the complainants, appeared before the master and was examined in his own behalf. After stating that he had been engaged for a long time in manufacturing hay-rakes in accordance with the patent alleged to have been infringed, etc., he proceeded to state what it costs to manufacture and put them on the market, the number manufactured and sold by his firm during and after defendants' infringement, and the prices obtained for them. This evidence, it is said, tends to show the extent of defendants' gains and profits, and furnish a basis for esti
*Reported by J. C. Harper, Esq. of the Cincinnati bar.
mating the amount of damages, etc., sustained by the complainants. The defendants then, by way of cross-examination, asked the witness if the firm kept books during the period mentioned, and, if so, if they would sustain his testimony in relation to the cost and quantity of material entering into each rake, the price paid therefor, the cost of making and selling the same, the quantity so made and sold, and the profits realized therefrom, and, if they would, defendant demanded their production before the master. Complainants, through their counsel, objected to the production of said books; and thereupon all further action was adjourned until the question raised could be certified to and instructions received from the court in relation thereto.
We need not now decide how far the witness' testimony in chief is material to the issues to be decided. But it is manifest that complainants regard it as important and valuable. If it is, then defendant is entitled to test its accuracy. He is not concluded by what the witness has said. If the witness says that the books kept by his firm, recording their daily business transactions, are correct, the defend. ant, it seems to me, is entitled to their production to verify the truth of the witness' evidence, if he tells the truth, or to contradict him, if he testifies falsely. Complainants may, if they shall elect to do so, withdraw the witness and the testimony thus far given by him. But if they insist on retaining his testimony, and defendant insists on a production of complainant's books, the same will have to be exhibited. This, however, may be as conveniently done in complainant's business office as elsewhere. If complainants will make the exhibit required in their office, they will not be required to produce them at any other place, unless some exigency shall hereafter arise requiring their production at some other and different place.
See Wisner v. Dodd, 2 FED. REP. 781, for opinion of Justice SWAYNE SUStaining the patent.—[REP.
FAULL V. ALASKA GOLD & SILVER MINING Co.
(Circuit Court, D. Oregon. January 4, 1883.)
DEBT DUE BY STOCKHOLDER TO CORPORATION.
Judgment was obtained by the plaintiff against the defendant for $19,002.05, and an execution thereon as against the defendant returned nulla bonu, and served on F. B. Harrington, as a debtor of the defendant, for $168.50, on account of unpaid calls or assessments made upon said Harrington's shares in the capital stock of the defendant, to which Harrington answered he owed the defendant nothing; but the answer not proving satisfactory to the plaintiff, he procured an order under section 309 of the Code requiring the former to appear before a referee for examination; whereupon the plaintiff served written allegations concerning said indebtedness, as provided in section 162 of the Code, to which the garnishee demurred that the court had no jurisdiction, and that the garnishee is not liable in this proceeding. Held, (1) that the proceeding by garnishment under sections 150 and 161-9 of the Code does not authorize a demurrer to the allegations of the plaintiff, but requires an answer thereto by the garnishee, to which exceptions may be taken for insufficiency; (2) a due and unpaid call or assessment upon the shares of a stockholder in the capital stock of a corporation is a "debt" due such corporation, within the purview of section 147 of the Code, and may be collected from such stockholder by a judgment creditor of the corporation by garnishment, under sections 150 and 161-9, aforesaid.
At Law. Action to recover money.
DEADY, D. J. On August 11, 1882, the plaintiff, a citizen of the state of California, obtained a judgment in this court against the defendant, a corporation organized under the laws of Oregon, for $19,002.05, upon which, on November 20th, an execution was issued and returned, as to the defendant, “no property found,” and duly served upon F. B. Harrington as a debtor of said defendant, in the sum of $168.50, who thereupon answered that he did not owe the defendant anything.
The answer of Harrington not being satisfactory to the plaintiff, he obtained an order from this court, under section 309 of the Code of Civil Pnocedure, requiring the former to appear before a referee and be examined on oath concerning said indebtedness.
Thereupon, on December 15th, the plaintiff served upon said garnishee written allegations concerning the same, as provided in section 132 of said Code, to which the garnishee, before the referee, demurred (1) that the court had no jurisdiction of the garnishee or the subject; (2) that the facts stated do not show a cause of action