done by simply making the target-shaft longer, with a crank on the lower end of the shaft beneath the case, leaving the segment gear and pinion in the same position as in the Mansfield stand. The aperture in the stand was generally left open, but upon one occasion it was closed; and further claims that at that time no importance was attached to placing the crank upon the target-shaft; that later on the Lake Shore had experienced a great deal of trouble by stands becoming clogged with sand in the summer time and snow in the winter time, and that led the defendant company to get up another pattern of frame adopted for inclosing the gear, having a crank below the case on the proper level for attachment to the switch connecting rod."

This testimony is not incredible. It was not contradicted. The witness who gave it was not impeached. It appears not to have been doubted that the stands he mentioned had in fact been made and used; but, because the learned judge was "not convinced that the witness was certain as to his dates," this evidence was wholly disregarded. We, however, are of opinion that it was entitled to consideration, and that it should have been accepted as showing, at least, that upon no admissible construction of the patent in suit could the charge that the appellant's switch-stand infringed it be sustained. Mr. Parsons was the superintendent of the defendant company, but the story he told was inherently probable, and we find nothing in this record which would justify a suspicion that he did not intend to testify candidly; and, while it is undoubtedly true that evidence of prior use should be clear and convincing, we see no reason to doubt that he was, as he said he was, enabled to fix the times when the stands he described were made, by relation to the happening of the other events to which he referred, and about which it is extremely unlikely he could have been mistaken.

Having reached the conclusion that the Circuit Court's finding of infringement was erroneous, its decree is reversed, and the cause will be remanded to that court, with direction to enter a decree dismissing the bill of complaint, with costs.

BULLOCK ELECTRIC MFG. CO. et al. v. CROCKER-WHEELER CO.

(Circuit Court, D. New Jersey. September 19, 1905.)

1. PATENTS-LICENSE-CONSTRUCTION OF CONTRACT.

A license contract, giving defendant the right to use certain inventions made by complainant, construed, and held to expressly except therefrom the invention covered by the patent in suit.

2. SAME ANTICIPATION EVIDENCE OF DATE OF INVENTION.

Declarations of a patentee relating to his invention, accompanied by descriptions thereof, and made before his application for a patent was filed, are competent evidence to carry the date of his invention back to the time when they were made.

3. SAME VALIDITY-EFFECT OF CANCELLATION OF CLAIM.

The cancellation of a claim in an application for a patent, while it is pending in the Patent Office, does not affect the validity of a retained claim which is substantially the same, although, if susceptible of two constructions, it will not be so construed as to cover the canceled claim.

4. SAME INFRINGEMENT-ELECTRICAL DISTRIBUTION.

The Leonard patent, No. 478,344, for a system of electrical distribution, discloses invention, and was not anticipated by the Smith patent, No. 471,063, which, although prior in date and time of application, is based on an invention made at a later date than that of Leonard. infringed as to claims 1, 2, 4, 8, and 9.

Also held

In Equity. Suit for infringement of patent. On final hearing.
See 121 Fed. 200.

M. B. Phillipp and Clifton V. Edwards, for complainants. Charles E. Mitchell, Herbert Noble, and Thomas Ewing, Jr., for defendant.

LANNING, District Judge. The complainants seek an injunction to restrain the defendant from an alleged infringement of patent No. 478,344, granted to the complainant Harry Ward Leonard July 5, 1892, of which he is the present owner, and under which the other complainant, Bullock Electric Manufacturing Company, claims to be sole licensee. The defenses are that the defendant has a license to do the acts complained of under a contract between Leonard and it dated May 5, 1896, that the patent is invalid, and that the defendant does not infringe.

First, as to the alleged license. This defense was set up by a plea to the bill, and, on a replication thereto and proofs, was overruled by the late Judge Kirkpatrick, whose opinion will be found in 126 Fed. 375. His order overruling the plea provided that the defendant “have leave to file such answer as it may be advised on or before rule day in January, 1904." Under the supposed authority of this provision this defense is now presented a second time, and the defendant requests the court to consider it, because, it is said:

"New matter has been introduced into the present record that was not before Judge Kirkpatrick, and therefore the question as to whether the defendant is licensed under the patent in suit should be considered and determined in view of the further light thrown upon the proper construction of the license."

Waiving the question concerning the regularity of such practice, I have complied with the request. The contract of May 5, 1896, recites that the Crocker-Wheeler Electric Company, then the owner of certain applications for patents specifically described in the recitals, had by an agreement of that date assigned those applications, and the patents to be obtained thereon, to the complainant Harry Ward Leonard, and that Leonard was then the owner of certain other patents and applications for patents, also specifically described in the recitals, amongst which latter were mentioned:

"No. 463,802 for electrical transmission of power, granted to said Harry Ward Leonard November 24, 1891; * No. 476,544 for a system of electrical distribution, granted to said Harry Ward Leonard June 7, 1892; and No. 478,344, for a system of electrical distribution, granted to the said Harry Ward Leonard July 5, 1892."

After its recitals, the agreement proceeds thus:

"Now, therefore, in consideration of the said assignment of the said Crocker-Wheeler Electric Company to the said H. Ward Leonard, the undersigned, the said H. Ward Leonard, grants to the said Crocker-Wheeler Electric Company a nonexclusive, nonassignable license, without limitation or condition or royalty to be paid by it or the purchasers of the apparatus, except as hereinafter specified, to make, use, sell, and practice for the regulation or control of dynamo electric machinery, for the purpose, except respecting patent No. 478.344, of regulating or controlling electric motors of its own manufacture, and for no other purpose, except as hereinafter provided in section 1, page 4, throughout the United States and the territories thereof, any of the inventions aforesaid, whether assigned by the said Crocker-Wheeler Electric Company to the said Leonard, or already owned by him, the said license being given under the aforesaid applications and patents, and any patents, reissues, or extensions which may be hereafter granted upon the said inventions, or any of them, for the full term or terms of the said patents, reissues, and extensions."

By Judge Kirkpatrick's construction of this contract it was held that the license thereby granted did not include patent No. 478,344. The "new matter" now presented is a tripartite agreement dated April 27, 1896, and executed by Harry Ward Leonard, the Crocker-Wheeler Electric Company, and Otis Bros. & Co. By this agreement it was declared that, "if this contract can be consummated within one month, the Crocker-Wheeler Company will assign all applications and inventions of Granville T. Woods assigned to it, to H. Ward Leonard, provided that the said Woods shall consent thereto in writing for the cash sum of $2,400, or less, in lieu of all sums and other considerations which are due or may become due to him as royalties or otherwise under a certain contract between him and the Crocker-Wheeler Company dated October 5, 1895." The agreement further declared that, subject to its conditions, Leonard would give to the Crocker-Wheeler Electric Company "a nonassignable, nonexclusive license without royalty and without limit to the extent of the employment thereof by the said Crocker-Wheeler Company, and its successor or successors in business, to make, use, and sell any of the inventions covered by the existing patents or applications to the said H. Ward Leonard," etc. The final paragraph of the agreement is as follows:

"And this agreement is further conditioned on the said Woods agreeing to transfer to the said Leonard all records relating to the matter in controversy In certain interferences relating to motor regulations now in possession of the Crocker-Wheeler Company, or its attorneys, or of the said Woods, and on the said Woods agreeing not to set up any date prior to the date of the transfers made to H. Ward Leonard in pursuance of this agreement in any controversy relating to motor regulations."

That this language was broad enough to require Leonard to include in his license to the Crocker-Wheeler Electric Company his patent No. 478,344, upon the performance of the conditions precedent in the agreement mentioned, is clear. But the proofs show that Woods never agreed to what the conditions called for. Furthermore, a comparison of the two agreements of April 27, 1896, and May 5, 1896, discloses such material differences between them as to dispel the idea that the later agreement was intended by the parties to it to be a carrying out of the former agreement. The agreement of May 5, 1896, must therefore be construed in the light of the evidence that was before Judge Kirkpatrick. I concur in his construction that that agreement does not include a license to use patent No. 478,344.

The defendant also contends that it is entitled to do the acts complained of as licensee under Leonard's patents, Nos. 463,802 and 476,544, both of which it is clearly entitled to use under the agreement of May 5, 1896. But, in view of the fact that by the construction. above given the patent in suit is expressly excluded from the list of patents to which the license applies, the contention, if the patent in suit is to be deemed a valid one, cannot be sustained.

The second defense is that the patent in suit is invalid. In the specification of this patent Leonard says:

"My invention relates in part to the operation and regulation of electric motors. In my application filed August 14, 1891, serial No. 402,651" (for which patent No. 463,802 was granted on November 24, 1891, being the same date on which the application for the patent in suit was signed and sworn to, though it was not filed until November 27, 1891). "I have set forth a method of operating electric motors at any speed or any torque desired, and at the same efficiency under all conditions; such method consisting generally in maintaining the field magnet of the motor at a constant strength and varying the volts on the armature circuit to vary the speed, and the amperes on such circuit to vary the torque. One object of my present invention is to enable this method to be carried out without varying the electro-motive force of the generator which forms the source of supply for the system of conductors with which the motor armature is connected, and also without the necessity of employing an intermediate motor and generator, as was the case in the application referred to, when the motor was supplied from a system of conductors of constant electro-motive force. I thus avoid the loss due to the successive transformations of energy, and also save the cost of the intermediate transforming devices. To accomplish this, I make use of a system of distribution in which there are three or more conductors, between each of the different pairs of which are maintained different electro-motive forces, and I so arrange the motor and suitable switching or connecting devices that the motor armature may be connected between the different pairs of conductors, whereby two or more different electro-motive forces are obtained at its armature terminals; the field magnet of the motor being so arranged and connected as to be maintained at a constant strength."

Figure 1 of the patent will serve to illustrate its general features. It is as follows:

In his specification the patentee describes this figure as follows: "Referring first to Fig. 1, A, A1, and A2 are three dynamo-electric machines of constant difference of potential, all run by the same engine or prime motor B. The three dynamos have their like terminals connected to a common con