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ant's hammock, as it is in the hammock of the plaintiff. Both parties use the same means to attain it-a more or less loose engagement of the fabric with the bearings of the frame; but the defendant gets a little more lateral stability, or rigidity, by the use of lacing. If he had frankly given up longitudinal tension altogether, and had merely suspended a bed or couch from the four corners of a rectangular frame, a different situation might be presented, although no definite opinion on that question need be expressed.

The second point of difference lies in the fact that the end bearings or rungs in the defendant's frame are either loose, being then held in place by the pressure of the fabric, or are temporarily attached, for example, by rubber bands, to the hooks provided to receive them; while in the plaintiff's frame such bearings are rigidly fixed and permanent. This, I think, is an unimportant distinction. The bearings perform precisely the same function in both frames, and it seems to be of little consequence that in one frame they are always in place, while in the other they are put into place whenever they are needed.

The case does not appear to require further discussion. The drawings of the patent are mainly confined to a preferred form, which is not the flat bedlike article manufactured by the defendant; but a flat bed or couch is plainly shown in Fig. 6, and is also clearly deducible from Figs. 1 and 2. It is not necessary that the cushion in Fig. 6 should be always of the shape there shown; and, indeed, it is not at all an essential part of the frame. But, even if it is to be regarded as a usual accompaniment of the flat frame shown in the figure, it is obvious that the angle shown in the drawing is not obligatory. Undoubtedly, as it seems to me, the angle may be gradually flattened, so that the cushion will soon become an ordinary mattress; and, when that point is reached, the substantial identity of the defendant's seat or couch can hardly be disputed. While the claims in controversy are broader than the drawings, I do not think that the drawings operate as a limitation. They are not inconsistent with the specification or the claims, but only show certain forms of the inventor's device.

The prior art is of little importance. I do not understand that any previous patent is seriously relied on to show anticipation.

The usual decree may be entered, with costs.

WILLIAMS PATENT CRUSHER & PULVERIZER CO. V. PENNSYLVANIA

CRUSHER CO.
(Circuit Court, E. P. Pennsylvania. February 12, 1910.)

No. 109.

1. PATENTS (S$ 160, 161*)-CONSTRUCTION-CONSIDERATION OF REJECTED CLAIMS.

A patent must be read and construed with reference to the claims rejected and to the prior art, and cannot be so construed as to cover either what was rejected by the Patent Office or disclosed by the prior art.

[Ed. Note.--For other cases, see Patents, Cent. Dig. $8 234, 235, 2364;

Dec. Dig. $8 160, 161.*] •For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

2 PATENTS ($ 328*)-INFRINGEMENT - CRUSHER AND PULVERIZER,

The Williams patent, No. 843,729, for a dumping cage for crushers and pulverizers, claims 1 and 2, as limited by the prior art and proceedings in

the Patent Office, held not infringed. In Equity. Suit by the Williams Patent Crusher & Pulverizer Company against the Pennsylvania Crusher Company. Decree for defendant.

Henry N. Paul, Jr., Joseph C. Fraley, and Frederick R. Cornwall, for complainant.

George W. Rea, for respondent.

HOLLAND, District Judge. This is a bill in equity brought for an alleged infringement of claims 1 and 2 of patent No. 843,729, dated February 12, 1907, for an improvement in cages for crushers and pulverizers, which patent was granted to Milton F. Williams, and by him assigned to the complainant company.

The defenses are noninfringement and invalidity of claims 1 and 2 of the patent, a consideration of the first of which defenses will necessarily dispose of this bill. The patent is for a "new and useful improvement in dumping-cages for crushers and pulverizers.” It com'prises a casing in which is arranged a horizontal shaft carrying pivotally mounted hammers or beaters, a cage pivotally mounted in the casing below said shaft, and comprising a frame carrying a rigid grinding surface, and a windlass arrangement, connected to the free end of the cage, comprising a chain, a shaft upon which the chain may be wound, a ratchet wheel on said shaft, a co-operating pawl, and a hand wheel on said shaft for rotating the same. It is claimed in the specifi-. cations that, in the event that the machine chokes, the pawl may be raised, and the dumping portion of the cage permitted to drop, discharging the major portion of the contents through the bottom, and, after the discharge, the winding drum may be manipulated through the hand wheel to raise the cage to its normal operating position.

Claims 1 and 2, which are alleged to be infringed by the defendant, are as follows:

"1. In a machine of the character described the combination of a casing, a shaft arranged horizontally in the casing and carrying pivotally-mounted hammers, a frame pivotally mounted in the casing below said shaft, a rigid grinding surface carried by said frame, a flexible device connected to said frame and winding mechanism for said flexible device, the pivot of said frame being located below the grinding surface when the frame is in operative position.

**2. In a machine of the character described, the combination of a casing, revolving hammers or beaters mounted therein, a frame pivotally mounted in bald casing, a grinding surface carried by said pivotally-mounted frame, said frame being adapted to be actuated to dump the material resting on said grinding surface, a chain connected to the free end of said frame, & winding shaft around which said chain is wound to restore said frame and grinding surface to normal position, a hand wheel on said shaft for rotating same, a ratchetwheel carried by said shaft, and a co-operating pawl for engaging said wheel to prevent retrograde movement of said shaft; substantially as described."

It will be noted that in claim 1 this improved pulverizing machine is one "of the character described" in the specification, and having a For other cases see same topic & S NUMBER in Dec. & Am. Dlgs. 1907 to date, & Rep'r Indexes

176 F,37

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"frame pivotally mounted in the casing below.” The shaft and the pivot of this frame are "located below the grinding surface when the frame is in operative position,” and in the second claim we find that "said frame is adapted to be actuated to dump the material resting on said grinding surface," and this actuating device is a chain connected to the free end of the said frame, a winding shaft "around" which said chain.is "wound” to restore the said frame and the grinding surface to its normal position, a hand wheel "on said shaft" for rotating the same.

These are the claims allowed by the Patent Office. In the first the "frame pivotally mounted in the case below” is restricted to a "frame" which is "located below the grinding surface when the same is in operative position”; and, in the second, the machine of the character described, to wit, a pulverizing machine capable of being dumped, is restricted to a "frame being adapted to be actuated to dump the material resting on said grinding surface" by a chain connected to the free end of the frame and wound at the other end around a winding shaft, and a hand wheel “on said shaft” for rotating the same and a ratchet wheel, etc. This part of the machine embodied in the dumping device attached is restricted to the precise parts used. An examination of the prior art as found in patents heretofore granted embodies devices for raising and lowering a frame carrying a grinding surface in pulverizers of this character, and actuating machinery for that purpose. Some of these patents were cited against the claims submitted by the complainant, and, after a number of broader claims submitted were rejected, the Patent Office finally allowed claims as now appears in patents 1 and 2 only after they had been limited as hereinabove indicated. If the complainant is permitted to broaden the scope of his claim so as to include the defendant's device, it at the same time makes them sufficiently broad to cover what already existed in the prior art at the time his patent was granted.

In Hubbell v. United States, 179 U. S. 80, 21 Sup. Ct. 24, 45 L. Ed. 95, it is said the claim as allowed must be read and interpreted with reference to the rejected claim and to the prior art, and cannot be so construed as to cover either what was rejected by the Patent Office or disclosed by prior devices. See, also, Corbin Cabinet Lock Co. v. Eagle Lock Co., 150 U. S. 40, 14 Sup. Ct. 28, 37 L. Ed. 989; Royer v. Coupe, 146 U. S. 524, 13 Sup. Ct. 166, 36 L. Ed. 1073; Brill v. St. Louis Car Co., 90 Fed. 667, 33 C. C. A. 213; Walker on Patents, § 187a.

It will not be necessary to consider the question of the validity of the two claims of complainant's patent in question. The file wrapper of the Patent Office makes it very clear that this dumping cage for crushers and pulverizers is restricted in its structural limitations to one in which "the pivot of the frame is located below the grinding surface when the frame is in operative position"; and in the second claim these limitations are to "a chain connected with the free end of the said frame, a winding shaft around which said chain is wound, and a hand wheel on said shaft.” As to its functional limitations, it is limited to the dumping feature of the actuated frame. The device used by the defendant is not a dumping cage, nor is the pivot of the frame located below the grinding surface when the frame is in opera

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tive position, nor is the actuating device used by it like the one described in claim 2 of complainant's patent. It is evident that the pivot of the complainant's cage is located sufficiently low down under the grinding surface, which location, in connection with the short section . of the lower half of the casing, enables the cage to swing down quite or nearly to a vertical line, resulting in the dumping of all material that may be resting upon the cage. In the defendant's cage, however, the pivot is not located below the grinding surface when the cage is in operative position. It is located more to the side of the casing, and the cage, which is the grinding surface of the machine, comprises nearly the whole lower half of the casing. When it is swung down, it will not dump the material resting upon it, but it is so arranged that any foreign substance can be removed by the hand. The arrangement, however, is intended for the purpose of adjusting the grinding surface to the hammers as they shorten from wear. The actuating device is entirely different from the one used by the complainant, although it performs the same function, which is to lower and raise the cage, but the lowering and raising of a cage was old in the art and other devices had been used for that purpose. The complainant in claim 2 was restricted to the mechanism therein set forth, and it cannot now enlarge that claim to include other devices, such as the one adopted by the defendant.

Having concluded that the defendant's machine as manufactured by it and set forth in a stipulation made part of this record does not infringe claims 1 and 2 of complainant's patent, the prayer of the complainant's bill is refused, and the bill dismissed, with costs.

KUTID V. FARRINGTON, Chief of Police,
(District Court, D. Oregon. December 20, 1909.)

No. 5,072.
INTOXICATING LIQUORS ($ 10*)-- POWER OF MUNICIPAL CORPORATION TO CON-

TROL-CONSTRUCTION OF CHARTER.

Where the only authority of a city in Oregon to license, regulate, or prohihit drinking places or the sale of liquors was given by a provision of its charter, which was superseded, as held hy decisions of the state courts, by the adoption of prohibition at an election held under a county option statute, the city was without power to enact an ordinance probil iting the sale of nonintoxicating liquors.

[Ed. Note.--For other cases, see Intoxicating Liquors, Dec, Dig. $ 10.*] Application by Charles F. Kuthe, against E. A. Farrington, Chief of Police, for a writ of habeas corpus. Petitioner discharged.

Woodcock & Potter and John M. Pipes, for plaintiff.

WOLVERTON, District Judge. The petitioner was, on November 13, 1908, accused of violating Ordinance No. 788 of the city of Eugene, entitled “An ordinance to prohibit the sale of nonintoxicating malt liquor in the city of Eugene." He entered a plea of guilty, and For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes

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was duly taken in charge by the Chief of Police. Whereupon this proceeding was begun by habeas corpus to secure his liberation.

The sole question presented is whether the city of Eugene is authorized, under its charter, to adopt an ordinance of the kind under which the petitioner was being prosecuted. By subdivision 18 of section 48 of the charter, adopted in 1905 (Sp. Laws 1905, p. 252), the city was empowered “to license, tax, regulate or prohibit barrooms, drinking shops, tippling houses, billiard rooms, dance houses, and all places where spirituous, malt or vinous liquors are sold.” The adoption of this provision of the charter, although slightly changed in wording, is but a re-enactment of the same provision contained in a previous charter of the city, adopted by the Legislative Assembly in 1893 (Sp. Laws 1893, p. 574). So it has been held in the state court (Renshaw v. Lane County Court, 49 Or. 526, 89 Pac. 147), with reference to this provision, that it was but a continuation of the former provision, and not a new enactment of the date of the later charter. What is known as the “local option" statute was adopted in the state June 6, 1904 (Laws 1905, p. 41). Under this statute an election was held June 4, 1906, within the county of Lane, in which the city of Eugene is located, to determine whether or not the sale of intoxicating liquors should be prohibited in the entire county, which resulted favorably to prohibition. Such election, within the purview of the local option law, had the effect to suspend the charter provisions with reference to licensing saloons or places where intoxicating liquors are sold. Renshaw v. Lane County Court, supra; Baxter v. State, 49 Or. 353, 88 Pac, 677, 89 Pac. 369; State v. County Court, 101 Pac. 907.

So that the city of Eugene is without authority to regulate the sale of intoxicating liquors. But the authority to regulate the sale of nonintoxicating malt liquors is referable, if at all, to the same charter provision. This having been superseded, as I have shown, by the force of the local option law, the authority in any form does not exist. But, however this may be, the question has been determined by the state court, namely, the circuit court of the state of Oregon for Lane county, in accordance with this view, and I feel bound by that adjudication, being a construction of the laws of the state, especially as it is based upon identical facts.

The petitioner will therefore be discharged.

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UNITED STATES v. BENNETT & LOEWENTHAL.

(Circuit Court, S. D. New York. November 27, 1909.)

No. 5,356.

CUSTOMS DUTIES ($ 75*)-APPRAISEMENT-APPROVAL OF PRO FORMA INVOICE.

Entry was made on a pro forma invoice and the value stated therein was approved by the appraiser, who also, however, approved the lower value given in a consular invoice subsequently produced by the importer. Held, that duty should have been assessed on the basis of the latter value.

[Ed. Note. For other cases, see Customs Duties, Dec. Dig. $ 75.*] •For other cases see same topic & $ NUMBER in Dec. & Am. Digs, 1907 to date, & Rep'r Indexes

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