In Fay v. Cordesman, 109 U. S. 408-420, 3 Sup. Ct. 236, 244 (27 L. Ed. 979), it is said:

"The claims of the patents sued on in this case are claims for combinations. In such a claim, if the patentee specifies any element as entering into the combination, either directly by the language of the claim, or by such a reference to the descriptive part of the specification as carries such element into the claim, he makes such element material to the combination, and the court cannot declare it to be immaterial. It is his province to make his own claim and his privilege to restrict it. If it be a claim to a combination, and be restricted to specified elements, all must be regarded as material, leaving open only the question whether an omitted part is supplied by an equivalent device or instrumentality."

But it is urged with apparent sincerity, and some of complainant's experts say, that the hoppers are the mechanical equivalent of the mechanism of the Bates patent "for cutting off suitable lengths of stay wires to span the space between the strand wires." The word "cut" is doubtless used in different senses, but its meaning in a given association with other words must be determined from its connection and association with such other words. A common, and perhaps its most usual, significance is: "To make an incision with a sharp instrument; to cut or sever by the application of a sharp knife or edged instrument of some kind." Century Dictionary. To interpret it as it is used in the Bates patent, as synonymous with separate, divide, set apart, or segregate would obviously not be the sense in which it is used in that patent. The specifications and drawings of the patent, as well as a model of the machine prepared by the complainant, show beyond any doubt that the stay wire sections are to be cut from spools of continuous stay wire by knives or cutter blades passing each other in close relation, substantially as the blades of shears pass each other, and the word "cut," as used in the patent, is undoubtedly intended to convey that meaning. The conclusion is therefore unavoidable that the cutting mechanism of the Bates machine is wholly omitted from defendant's machine No. 5, and that it contains no substitute therefor which is its mechanical equivalent.

Defendant's machine No. 6, also called the "Automatic Hand" machine, is made according to the Denning patent, No. 923,778, in which the claim for transferring the stay wire sections into a position transverse to the strand wires and ready for the coilers is as follows:

"(5) In a wire fence machine, the combination of (1) a plurality of coilers, and (2) a plurality of swinging and oscillating stay section carriers adapted to clamp stay sections and convey the severed sections bodily through the air and deliver them to the coilers in position for coiling, substantially as described."

A model of these swinging carriers, spoken of in the preliminary proofs as an "automatic hand," in association with the coilers and wire feed mechanisms, show that the stay wires are continuously fed into the machine simultaneously with, and parallel to, the strand wires, but at some distance from them and from the coilers, and after being cut the requisite length, are immediately clamped, or seized by the carriers, which are located between the strand and stay wires, and carried by a swinging or elbow-like movement, through the arc of a circle and while being so carried are turned by an oscillating or wrist-like

movement of the device from their position parallel to the strand wires to one transverse, or crosswise to them and placed upon the coilers in proper position for coiling. These carriers and their mode of operation are so unlike the tubes of the Bates machine for guiding the stay wires from their position parallel with the strand wires to one transversely of them and in position for coiling that they cannot rightly be adjudged to be the mechanical equivalent of that device. Machine No. 6 need not therefore be further considered.

Conceding, without deciding, that complainant's patent is entitled to a wide range of equivalents, the range must not be so broad as to include all other mechanisms and devices for making by machinery a woven wire fence fabric like that made by complainant's machine.

In Gill v. Wells, 22 Wall. 1-15, 22 L. Ed. 699, the rule for equivalents in patents for a combination is stated as follows:

"Old ingredients known at the date of letters patent granted for an invention, consisting of a new combination of old ingredients, if also known at that date as a proper substitute for one or more of the ingredients of the invention secured by the letters patent, are the equivalents of the corresponding ingredients of the patented combination. Such old ingredients, so known at the date of the letters patent granted, are the equivalents of the ingredients of the patented combination, and no others, and it may be added that that, and that only, is what is meant by the rule that inventors of a new combination of old ingredients are as much entitled to claim equivalents as any other class of inventors."

There is no evidence upon this hearing that a device like either the hopper of defendant's machine No. 5, or the automatic hand of its machine No. 6, was, at the time of the Bates patent, known as a proper substitute for the stay wire feed or cutting mechanism of the Bates machine, or that either could then have been used for that purpose in the same or any other relation to the other parts of the machine. On the contrary, the evidence is conclusive that neither was then so known and cannot now be so used.

In the former suit it was urged with great force that the claims of the Bates patent were so broad as to include any and every other means of making such a fence by machinery, and that the claims therefore were invalid under the rule held in O'Reilley v. Morse, 15 How. 62, 112, 113, 14 L. Ed. 601, and subsequent case. This contention was not sustained because the specifications and drawings of the Bates patent specifically describe, and the claims distinctly call for, a particular machine made up of certain elements combined and co-operating in a certain manner to produce a woven wire mesh fence, but that the claims were not so broad as to prevent the use of other machines, substantially different, for making the same kind of a fence. If complainant's contention is now correct, that defendant's machines Nos. 3, 4, 5, and 6 infringe the coiling, cutting, and stay wire feed mechanisms of the Bates patent, then the holding in the former suit was wrong, for if the coiling mechanism of defendant's machines Nos. 3 and 4, the method of preparing the stay wire sections for, and placing them in, machine No. 5, and the "automatic hand" of machine No. 6 are not each substantially different in its construction and mode of operation from those of the Bates machine, it would seem to be impossible to make a machine that is substantially different from the ma

chine of the Bates patent, and the claims would therefore be so broad as to include any and every device for making a woven wire fence fabric by machinery. Such a construction of the claims of the Bates patent would render it invalid. It is the right of the defendant or of any one else to construct a machine substantially different from that of the complainant's patent with which to make the same kind of a fence that the machine of that patent makes, and the fact that Denning in constructing such a machine endeavored to avoid infringing the Bates machine, is to be commended rather than condemned. The conclusion, therefore, is that the charge of infringement is not sustained by the proofs submitted.

Upon the argument at the bar it was conceded by counsel for both parties that all the facts were as fully and accurately shown by the preliminary proofs as they could be upon final hearing, and that the motion for a preliminary injunction might well be considered and determined upon the merits regardless of any technical grounds that might be deemed sufficient to defeat the same. The question has therefore been considered as upon the merits and at much greater length than ordinarily would have been done in considering a motion for a temporary injunction. No stipulation, however, was made or filed that the matter might be considered and determined as upon final hearing, and the only order that can now be made is one denying the preliminary injunction; and it is accordingly so ordered only.

I. E. PALMER CO. v. PATTERSON.

(Circuit Court, E. D. Pennsylvania.

February 17, 1910.)

No. 143.

PATENTS (§ 328*)—VALIDITY AND INFRINGEMENT-HAMMOCK ATTACHMENT. The Palmer patent, No. 574,073, for a hammock attachment, comprising a frame adapted to cause the hammock body or a portion thereof to assume a different position from that which it would normally assume when suspended, to form a seat or leg rest, or both, was not anticipated, and discloses patentable invention; also held infringed.

In Equity. Suit by the I. E. Palmer Company against James B. Patterson. On final hearing. Decree for complainant.

Emery & Booth and Fraley & Paul, for complainant.
Augustus B. Stoughton, for respondent.

J. B. MCPHERSON, District Judge. It is well known that, when a hammock of the usual make is suspended by its ends, it will conform itself closely to the person of the occupant in all his movements. This characteristic often causes discomfort when a change of position is sought; and a principal object of the patent in suit-No. 574,073, granted to I. E. Palmer on December 29, 1896-is to afford relief from this inconvenience. The specification states:

"My invention relates to an improvement in seat attachments for hammocks, in which provision is made for causing a portion of the hammock body *For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

to assume at pleasure a position other than that which it would normally assume when suspended, for the purpose of affording the occupant a seat and leg rest, or both, which shall conform to the position which the body of the occupant would naturally assume when at rest and lying on the back."

In order to accomplish these results the inventor devised a frame that may be conveniently attached to the fabric, or body, of the hammock, and is provided with bearing points upon which the fabric may rest and be supported. These points are so arranged that portions of the hammock's length are compelled to assume positions at varying angles with other portions, and thus furnish a seat or a leg rest, or both. In other words the frame is intended (using the language of the plaintiff's brief)—

* to interrupt the natural line of pendent curvature between its points of support, and form a distinct seat or reclining portion or couch, of definite length and shape, and upon which the occupant may sit, recline, or lie, as upon an ordinary seat or couch, and upon which he may change his position at will without any of the embarrassment and discomfort which follow any attempt to change one's position in an ordinary hammock, which has no well-defined seat portion, and which, as above stated, follows and conforms always and automatically to any change of position of the occupant." There can be no doubt-to continue the quotation-that:

"The result of the invention of the patent in suit is to give to the commercial hammock a well and permanently defined seat or couch portion, which does not follow every movement of the occupant, and therefore does not interfere with his movements to change position, but which still retains the elasticity, flexibility, lightness, and swinging capacity characteristic of the ordinary commercial hammock."

The inventor declared his device to consist

broadly in a rigid frame capable of attachment to the hammock body, and provided with bearing points for the hammock body, such that the latter will be caused-throughout a portion of its length-to assume a position to form a natural seat or leg rest, or both."

Among frames of this description, two kinds are described and illustrated in the specification and drawings. One may be adjusted by the use of side rails in two sections, and of stay rods, slots, and lugs, so as to assume different angular positions; and the other is made without a joint in a single piece of such shape as may be described. In the use of either kind the hammock body or fabric is passed over and under the bearings, so that the fabric supports the frame, while the frame. also supports the fabric in part and helps to keep it stretched. The claims involved are as follows:

"1. A hammock attachment comprising a frame independent of the body of the hammock and provided with bearings for the body of the hammock, the said bearings being so located with respect to one another that the hammock body when engaged therewith and suspended will have its natural curve interrupted to form a seat, substantially as set forth.

2. A hammock attachment comprising a rigid frame provided with bearings for the body of the hammock, the said bearings being so located with respect to one another that the hammock body when engaged therewith and suspended will have its natural curve interrupted to form a seat, substantially as set forth."

The essential features of the invention are the frame and the engagement of the bearings with the fabric. The shape of the frame de

termines the shape that the hammock must assume. Either a seat or a leg rest, or both a seat and a leg rest, may be presented; and these may be in effect united in one plane, so as to present a flat surface like a bed, or they may incline to each other at angles that differ in degree. But, whatever the shape of the frame may be, the hammock body is so engaged with the bearings that it has more or less movement lengthwise, and is continually adjusting itself, loosening or tightening as the weight of the occupant is applied or removed. One method of attaching the frame to the fabric is described by the inventor as follows:

"The framework as thus constructed may be attached to the hammock by passing the body, A, of the hammock over the rung, d1, at the foot rest, thence under the rung, d, thence over the rung, E, thence over the flat cross-brace, D, and under the brace, D1, and thence to the point of support."

The hammock body may thus have a bearing at three or more points on the frame, and when suspended the bearings will force it to follow the angle or angles of the frame. In the shape illustrated by Figs. 1, 2, and 3:

"A person seated upon that portion occupied by the seat section will be prevented from slipping along down the body of the hammock, and the legs of the occupant when so seated will be allowed to rest naturally upon the leg rest section of the frame, without bearing the weight at the heels and leaving the leg intermediate of the heel and the body unsupported, as is common in connection with hammocks as commonly in use."

In the shape illustrated by Fig. 6, the same method of attaching the frame is shown, but the frame itself is flat, and of course there is no leg rest in this particular structure. Both shapes, however, have the hammock body engaged in the same way with the bearings, and in both of them longitudinal tension is present.

For the purposes of this case, the two claims may be regarded as identical, and the defendant's hammock is, I think, a clear infringement of both. The points of likeness in the two devices are very well summarized in the plaintiff's brief:

"Inasmuch as defendant uses a straight frame, like Fig. 6 of the patent in suit; uses the end bearings, under and over which the fabric is passed, as in all of the figures of the patent in suit; has a frame which deforms the hammock fabric from its natural curve, like that of the patent in suit; has a frame which is independent of the fabric and capable of removal therefrom while the fabric is suspended, like that of the patent in suit; and has an arrangement such that the longitudinal tension automatically takes up the slack in the hammock seat-all like the patent in suit, defendant is in no position to assert that he does not infringe, even though he may prefer to add some features of his own design, like the lacing, and like the attaching of the end bars or rungs temporarily to the frame, to be held in position by the fabric instead of fixedly by the frame, as in the patent in suit."

In only two particulars that need be noticed does the defendant's hammock or couch differ from the patented article. One difference is to be found in the lacings under the seat. These give additional strength to the fabric and keep it more tightly stretched, by adding lateral tension to the longitudinal tension that is common to both hammocks. Lacing may perhaps be an improvement; but it does not produce a different result, or produce an old result by distinctly different means. Longitudinal tension is still an important object in the defend