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Williams, describes the first machine for depositing fur upon an exhaust rotating cone, in a proper manner to form hat bodies. He first used rotating exhaust cones to receive fur from any disintegrator; and he showed, also, the forms of hats, instead of cones; his idea being to dip the hat in a solution of glue and starch, and use it as a foundation to be covered with plush or a fur nap.

This machine had no trunk or chamber, although it had a sort of fur director.

The patents to Williams and Fosket, cited in the Wells re-issue here in suit as earlier than the invention of Wells, had "an endless feeding cloth or apron," a bow-string operated by machinery as a disintegrator, a passage or tube from the bow-string to the wind-chamber, being a square or circular box of convenient dimensions, around and through the lower part of which were openings to admit the air to the chamber.

In the center of this chamber is a conical frame of wire, covered with muslin or fine wire gauze, rotating as the hat is formed. Under the chamber is an exhaust apparatus, the same as in the Wells and Gill machines in contro

versy.

The known devices in hat forming machines at the time of the invention of wells, were the following:

1. A feed apron. 2. A disintegrator. 3. A fur conductor. 4. A rotating cone. 5. An exhaust.

Wells does not claim to be the original inventor of either. His claim to a patent is based on a new combination of these devices. His specifications begin as follows:

or other former, with a view to distribute the thickness of the bat wherever more is required to give additional strength.

He states his claim as follows:

"What I claim as my invention and desire to secure by letters patent in the machinery above described, is, the arrangement of the two feeding belts with their planes inclined to each other, and passing around the lips, formed substantially as described, the better to present the fibers to the action of the rotating brush, as described, in combination with the rotating brush and tunnel or chamber, which conducts the fibers to the perforated cone or other former, placed in front of the aperture or mouth thereof, substantially as herein described. I claim the chamber into which the fibers are thrown by the brush in combination with the perforated cone or other former placed in front of the delivery aperture thereof, for the purpose and in the manner substantially as herein described; the said chamber being provided with an aperture, below and back of the brush, for the admission of a current of air to aid in throwing and directing the fibers onto the cone or other former, as described. I also claim the employment of a hinged hood, to regulate the distribution of the fibers on the perforated cone or other former, as described. And I also claim providing the lower part of delivery aperture of the tunnel or chamber with a hinged flap, for the purpose of regulating the delivery of fibers, to increase the thickness of the bat where more strength is required, as herein described, in combination with the hood, as herein described."

It was insisted by the defendant that the use of the tunnel or chamber for conducting the fibers to the cone was a constituent part of the patented combination; and that there could be no infringement of the patent which did not include the use of such a tunnel or chamber.

Instead of mentioning this tunnel or cham. ber for conducting the fibers, the description in the re-issue substitutes the following:

"It has long been essayed to make hat bodies by throwing the fibers of fur, wool, etc., by a brush or picker cylinder, onto a perforated cone exhausted by a fan below, to carry and hold the fibers thereon by the currents of air that rush from all directions towards and through the apertures of the cone, and thus form a bat of fibers ready for hardening and felting; but from various causes all these attempts have failed. I have, however, so improved this machine in various important par- "From the under part of the rotating brush ticulars as to remove all the objections, as or picker there is a plate which extends toproved by the test of experiment. My im- wards the pervious cone, an open space being provements consist in feeding the fur (called left between that end of the plate which is the stock) after it has been picked, to a rotat- nearest the picker and the concave below the ing brush between two endless belts of cloth, feeding mechanism, that a current of air may one above the other, the lower one horizontal enter freely to assist in carrying the fibers and the upper inclined, to gradually compress toward the cone as they are thrown by the the fur and gripe it more effectually where it brush or picker. This plate guides the fibers is presented to the action of the rotating brush, as they are traveling, and prevents too great which, moving at a great velocity, throws it in an accumulation of them immediately around a chamber or tunnel which is gradually changed the lower edge of the cone, the greatest thickin form towards the outlet, where it assumes ness of the bat being required to be deposited a shape nearly corresponding to a vertical some distance above, that the bat when made section passing through the axis of the cone, may be thickest at and about the junction of but narrower, for the purpose of concentrating the rim and crown, technically termed the and directing the fur thrown by the brush onto 'band;' and it also prevents waste, as otherthe cone; this casing being povided with an wise many of the fibers would be carried by aperture immediately under the brush, through the force of gravity below the influence of the which a current of air enters in consequence currents traveling toward the cone, particuof the rotation of the brush and the exhaustion larly toward the end of the operation, when of the cone, for the purpose of more effectually the currents induced by the exhausting fan, directing the fibers towards the cone, which is placed just in front of the delivery aperture of the chamber or tunnel, which aperture is provided at top with a bonnet or hood hinged thereto, and at the bottom with a hinged flap to regulate the deposit of the fibers on the cone

become very faint. This plate rests on an adjusting screw, so that that end of it which is nearest the cone can be readily elevated or depressed relatively to the base of the cone, as it may be desired to vary the distribution of the fibers, with a view to make hats with a

broad or a narrow rim, and with the rim | mechanism, substantially as described, and the thicker or thinner relatively to the other parts: side guides or either of them, substantially as and with a view to facilitate this distribution, described, to prevent fur fibres from getting the plate is made in two parts, with the out of the proper influence of the currents travpart beyond the supporting screw and nearest eling to the cone, and to protect the traveling the cone hinged to the other part, and provided fibers from disturbing currents, the said comwith a cam and lever or other equivalent de- bination having the mode of operation certified and for the purposes set forth.

vice.

There is an upper guide or deflector which extends from the feeding mechanism over the rotating brush or picker, and forward of it toward the cone, to direct the fibers and effect a proper distribution of them on the tip of the cone and down the sides thereon toward the base. The better to effect the distribution of the fibers on the cone, the under surface of this guide or deflector nearest the picker brush is flat, or parallel with the axis of the picker brush, and thence toward the other end concave, and of a gradual increasing concavity toward the cone; and still further to diversify the distribution of the fibers, an additional deflector, somewhat in the form of a hood, is hinged to the end of the deflector nearest the cone, so that it can be moved by a cord passing over a pulley, or by a lever actuated by an eccentric or a cam on a shaft.

On each side there is a guide, extending from the pickor brush toward the cone. These guides prevent fur fibers from escaping laterally out of the proper influence of the currents which are traveling toward the cone, and which would otherwise go to waste; and they also prevent the fibers which are traveling toward the cone from being disturbed by lateral or foreign currents, which are induced by the rotating brush or picker, or by the exhausting of the cone.

By placing the two guides relatively, the one to the other, as represented, that is, further apart at the picker or brush than toward the cone, a much longer picker or brush can be used than if they were parallel. When so placed, they gradually contract the fur bearing current as it approaches the cone, so that a greater quantity of fur can be disintegrated and thrown in, in a given time, than with a picker or brush so short as would be required if the side guides were parallel.

In the machine illustrated by the drawings, the bottom plate, top guides or deflector and side guides, are all united along their edges, and the claim is as follows:

4. The combination of the feeding apron, on which the fur can be placed in separate batches, as described, the rotating brush or picker, substantially as described, the rotating pervious cone or former, provided with an exhausting mechanism, substantially as described; the said combination having a mode of operation substantially such as described.

5. The combination of the feed apron, on which the fur fibers can be placed in separate batches, each in quantity sufficient to make one hat body, the rotating brush or picker, substantially as described, the rotating pervious cone, provided with an exhausting mechanism, and the devices for guiding the fur fibers, substantially as described; the combination having the mode of operation specified and for the purpose set forth."

The court charged the jury, among other things, as follows:

As to fourth claim.

"Now, these instrumentalities that I have named: the moving belt or apron, the revolving rollers, to receive the fur from the apron, and the picker or brush, to disintegrate and to diffuse the particles of fibers of fur, Mr. Welis did not claim were new. It is not claimed in the re-issue, nor by the plaintiff's counsel, that they were new. They had been used before, and were open to the public. Then, upon the other end of the machine, he exhibits a rotating pervious cone, provided with an instrumentality beneath, whereby the air within the cone could be partially exhausted, or could be drawn with greater or less power from above, through the perforations of the cone. That was not claimed by Mr. Wells at the time, nor is it claimed now by counsel, to be new. On the contrary, the perforated cone and the exhausting apparatus are conceded to be old. The combination of the three under the fourth claim, as an aggregate instrumentality, to be used in the making of hat bodies, or for analogous purposes, is claimed to be new. You have heard the observations of counsel upon that question. If that combination was not new, then his patent, in so far forth as it depends upon that combination, fails, and the mere use of these three things in a machine which embodied no other part of Mr. Wells' structure, does not subject the defendant to an action. If it was new, then the point has been urged upon the attention of the court, that, nevertheless, the patent is not 2. The combination of the feed apron, the valid because those three devices in combinarotating brush or picker, substantially as de- tion are not available, except in combination scribed, the rotating pervious cone, provided with the trunk which Mr. Wells used, as I with an exhausting mechanism, substantially shall presently observe, as an intermediate as described, and a guide or deflector for di- means to accomplish the result. I am not able recting the fur fibers onto the tip and upper to assent to that proposition. If this was a part of the cone, substantially as described; useful combination, which might be employed the said combination having the mode of oper- for the purpose of facilitating the making of ation specified, and for the purpose set forth. hat bodies, supplemented by any known means 3. The combination of the rotating brush or of guiding the fur in such a way as to bring, picker, substantially as described, the rotating by the operation of these three devices, the pervious cone, provided with an exhausting fur to the cone, so as to make a hat body:

1. The combination of the rotating brush or picker, substantially such as described, the rotating pervious cone, provided with an exhausting mechanism, substantially as described, and the bottom plate or guide, substantially as described, for directing the fur fibers toward the lower part of the cone, and preventing the fibers going to waste; the said combination having the mode of operation specified and for the purpose set forth.

And

if they would make a hat body without the secures or professes to secure to Mr. Wel's aid of other means of protecting the fur protection in the mode of distributing the fur against escape, that would be serviceable for about the bottom of the cone, giving the hat any purpose, then it was patentable, even increased thickness about the band. without the trunk. So that I am constrained while all these claims are to be construed with to say, that if that combination was a new reference to the specification, the law requires one, and that combination would serve a pur- that if used so as to constitute an infringement .pose, by the aid of any known instrumentality, of the claim itself, it must be in connection for protecting the fur against escape; or, if with devices that are substantially such as are it could be used to make a hat body without described in the specification accompanying the being supplemented in that manner, it was claim, in order to prevent the escape of fur the subject of a patent, and the patent was in other directions; but that does not neces not void on the ground suggested." sarily involve the use of the hinged hood, nor necessarily a particular form of inclosure of curved sides, such as are shown. And this explanation of this first claim is applicable to very nearly all the other claims.

As to other claims.

"I say this: being substantially an account of the machine which Mr. Wells presented, the plaintiff in the re-issue, which is the founda- The second claim is for a combination of the tion of this suit, has, for reasons doubtless suf- feed apron; the rotating brush or picker, and ficient to her, divided the claim of the speci- the rotating pervious cone provided with the fication into several parts; and she has done exhausting mechanism, and the guide or deso apparently under the idea that if she dealt flector for directing the fur fibers on to the tip with the machine as a unit, as an aggregate, and upper part of the cone, substantially as the invention might be appropriated with im-described, the combination having the mode punity by a party who used a portion of its of operation specified and for the purpose set effective, original and useful parts, leaving out forth. You perceive that is a claim for the some others. An inventor is at liberty, when combination of the feed apron or feed rollers, he has made an invention, if it consists of the revolving brush and the top guide; that is, several distinct, effective, new devices, which, the hood, and it is to be used as it is substanas an aggregate, may constitute in his judg- tially described in this specification. But it ment the best machine in the world, but of would not follow that a man did not infringe which certain of the parts may be omitted, that, merely because when he provided his and it still be an effective, new and useful means of confining the fur and subjecting it to machine, I say the inventor is at liberty, in that influence, he had not the flap or bottom taking out his patent, to protect himself plate to assist in the distribution of the fur against that species of innovation, by claiming at the bottom. If he has used this flap subthe separate, new and useful parts of the ma- stantially as pointed out in this specification in chine by themselves. I say the patent law, making it the instrumentality by which the therefore, permits the inventor not only to flow of fur upon the top of the cone is regupatent the machine as an aggregate, but to lated-if it does that, then he infringes this patent the new devices which enter into it, so claim. that another may not avail himself of his ingenuity in that respect. That is the reason why re-issues often become necessary, because in the original patent the party did not claim distinctly the separate items of the property which he had a right to claim. And in that view I suppose the plaintiff here has claimed the combination of the rotating brush or picker, substantially as described; the rotating pervious cone, provided with an exhaustion mechanism, substantially as described; and the bottom plate or guide, substantially as described, of what is called the trunk for direct ing the fur fibers toward the lower part of the cone, and preventing the fibers going to waste, which combination has the mode of operation specified, and for the purpose set forth.

Now, gentlemen, it is insisted by the defendant that this claim is not infringed by him, unless he uses as well the bottom plate or guide, as also the three other sides of the trunk, chamber or tunnel, shown in the draw ing or model of the Wells patent, and as is described therein.

I understand, gentlemen, the claim to be this: the combination of the parts described. including the bottom plate to be used substantially as described, and that it secures to the patentee that combination; and provided the infringer uses substantially the means pointed out in Mr. Wells' specification, to prevent the escape of the fur in the other direction, it is the combination which, as an aggregate device,

The same is true in regard to the side guides. It is not essential to the validity of this claim, nor would it relieve a party charged with infringement, that he used this combination with appropriate means to prevent the escape of the fur at the top or bottom, although he might leave out the hood, and leave out the movable flap on the bottom."

Accordingly, upon the errors assigned, the principal question in controversy was, whether these changes in the device for conducting fibers make a material variance, and whether the re-issue is, therefore, invalid as being for a different invention.

The case is further stated by the court. Messrs. Henry F. French and A. L. Soule, for plaintiff in error:

This invention of Wells has often been before the courts upon the various re-issues of his patent; and the original has received the most careful consideration of this court in the case of Burr v. Duryee, 1 Wall., 531, 17 L. ed. 650.

It

That was a bill in equity, alleging an infringement by the use of the Boyden machine. That machine had a feed. apron, a picker, a guide plate, or fur director, and an exhaust rotating perforated cone, in combination. had every element of the Wells machine except the trunk; and instead of the trunk had a curved plate for directing and guiding the fur to the cone.

1 Wall., 562, 17 L. ed. 655.

The Wells patent had already been twice reissued for the fraudulent purpose of extend

ing and enlarging the real invention, and the court severely criticized those who controlled the patent.

The court says:

And it may be added that, during the lifetime of Wells he never made a change in his patent. He died in 1851, and the first of the seven changes which this patent has undergone, was made in 1856.

"The great and peculiar characteristic of the Wells invention is a tunnel or chamber con- The patent is for improvements only in mastructed as described. Instead of the picker, chinery for making hat bodies, and the very he used a rotating brush to distribute the fur first clause of the original specification, after from the feed aprons, and throw it forward the formal parts, disclaims the very combinainto the chamber which conducted it to the tion described in the fourth claim. cones. The hinged hood and flap were devices "It has long been essayed to make hat bodies to distribute the material in unequal quanti-by throwing the fibers of fur, wool, etc., by ties, to accomplish the object of making the a brush, or picker cylinder, onto a perforated bat thicker in one part than another. cone exhausted by a fan below, thus form a bat of fibers, ready for hardening and felting; but from various causes all these attempts have failed. I have, however, so improved this machine in various important particulars as to remove all objections."

and

But it may be said that the fourth claim includes a feed apron, and so it does, and so does every machine for carding, blowing, mixing or throwing any fibrous material, as in Williams' and Fosket's machines.

Now, we are of opinion that the invention of Wells was a machine which was an improvement on the machines previously known. It is not founded on any new discovery of the application of any element or power of nature to produce an effect. He was not the first to devise the application of a vacuum to cones for the purpose of forming and compressing bats for hat bodies, nor the first to discover that such bats should be made of unequal thickness, nor of pickers to distribute the fur from the If, in the fourth claim, the feeding apron, on carding apparatus. He has improved this which the fur can be placed in separate batches, machinery by his peculiar devices of brush, as described, means the two feeding belts, trunk, cap, flap, etc., combined in a machine with their planes inclined to each other, as which failed to be automatic till further im- set forth in the first claim of the original pat proved. We are of opinion, also, that the speci-ent, we have only to answer that the defendants fication of Wells correctly set forth the pe- have never used any such device, nor does the culiar combination of devices in the machine he court recognize it in the charge. invented; that, as required by the statute, he truly and correctly stated the principle or mode of operation of his machine, and the functions performed by its several devices. There was no mistake in his specification, by inadvertency or accident. He had a valid patent claiming his whole invention, no more, no less."

If the feeding apron means any feeding apron on which fur can be so placed, it means such a feeding apron as the machines of Williams and Fosket contained prior to the invention of Wells.

Wells not only recognizes the exhaust cone as well known, but evidently refers to Fosket's machine, which had adopted a wire gauze instead of the Williams perforated cone.

Wells does not suggest any improvement in the cone, but says: "The cone is made in the usual manner, but of thin sheet metal, perforated, instead of wire gauze."

Burr v. Cowperthwait, 4 Blatchf., 163, was a bill in equity on the re-issue of 1856, of this patent, and was argued in the District of Connecticut, before Nelson and Ingersoll, J. J. The invention of Wells was carefully analyzed, and found to consist in the devices for The form and functions of this chamber or directing the fur namely: the trunk, with its head and flap. The machine of the defendant tunnel, without its adjuncts, seem to be fully in that case contained the feed apron, picking is said to be "Gradually changed in form todescribed in the language of the inventor. cylinder and revolving exhaust cone, but no trunk or conductor.

Besides the double feed, which nobody uses, and the substitution of a brush for a picker, which is immaterial, the only thing which Wells invented is the peculiar shape of the tunnel or chamber, or trunk, placed between the picker and cone, and the hinged hood and flap of that trunk.

It

wards the outlet, where it assumes a shape nearly corresponding to a vertical section passing through the axis of the cone, but narrower, for the purpose of concentrating and directing the fur thrown by the brush onto the cone," etc.

This tunnel, of itself, is not described as tending at all to distribute the fur in its reThe original patent shows no pretense of a quired proportion as to thickness. It is for the claim of any combination without a trunk. A purpose stated above, and from its structure, machine with only a feed apron, a picker and its manifest tendency would be to guide the exhaust, rotating cone having no trunk, is no-fur equally onto the vertical section of the where in that patent described, alluded to or shown or indicated, in language or drawing or model, as the invention of Wells.

He was not the first inventor of it. He never pretended that he was. Mr. Wells, in preparing his original specification, appears to have employed Mr. Keller, who is a witness to it and was always, until recently, of counsel for the Wells patent; so that we have before us what an intelligent inventor, knowing the precise limits of his invention, with the aid of an expert in this very t. thought it safe and proper to claim.

cone, as it rotates just in front of its delivery aperture."

Therefore, this element is not complete without its adjuncts, the hood and the flap.

"Which aperture is provided at top with a bonnet or hood hinged thereto, and at the bottom with a hinged flap, to regulate the deposits of the fibers on the cone or other former, with the view to distribute the thickness of the bat, wherever more is required to give addiI also claim the emtional strength. ployment of the hinged hood to regulate the dis

..

tribution of the fibers on the perforated cone or other former, as described. And I also claim a hinged flap for the purpose of regulating the delivery of the fibers to increase the thickness of the bat, where more strength is required, etc."

The fourth claim, construed as it was by the court below, to wit: as excluding the trunk and all its parts from the combination, is not sustained by any description of the invention in the specification.

The only accounts given in the specification of the character of the invention, so far as it relates to machines for forming bodies, are found on the record, where it is stated in substance that:

"One of the leading features of the invention consists in combining with a rotating brush or picker, and a rotating, pervious, exhausted cone, a means whereby the requisite greater quantity of fur thrown by the picker toward the cone is caused to lodge upon the cone at the required distance from its base, to make the band of the hat body of the required thickness;" which "means" is stated to be the "bottom guide."

"The combinations of machinery invented by the said Henry A. Wells, have such a mode of operation that any given weight of fur which is placed on the feed apron will be delivered onto the pervious cone, so that any number of separate batches of fur, separately weighed and separately placed on the feed apron, will be formed into bats suitable for hat bodies, corresponding in weight and number with the several batches of fur, and the fur fibers will be directed and controlled from the rotating, picking and disintegrating brush and picker to the exhausted pervious cone or former, so as to be deposited and distributed thereon of equal thickness in the direction and of unequal thickness in the direction, of the length as required, that the hat body may be made of the required strength, with the least weight of fur, that is, thick for strength at and about the band, and thin along the crown and tip."

Now, it is obvious that the combination of the parts named in the fourth claim, the apron, picker and exhausted cone, without the aid of any other part of the machine, will not produce the result thus described. It will not deposit the whole quantity of the weighed fur upon the cone, and will not properly distribute what it does deposit. The patentee does not claim that it will, and goes on to describe the "means" by which the fibers of fur are "guided and directed to be properly distributed," as being the bottom guide, top guide and side guides, which make up the trunk in the Wells machine.

The patentee is so well aware that these "guides," the trunk, are essential features of the Wells invention, that she says:

ror a patent for a combination which has no power to produce the results which the specification says the invention does produce, and excludes from the combination the peculiar feature of the machine, which the patentee describes as being the means by which, as a part of the combination, is produced the result, which is the fruit of the invention.

The claims in the original Wells patent are clear and explicit, as to the tunnel, and as to the hood and flap.

What is described and claimed is, in form and function, entirely different from the tunnel or chamber with its hood and flap described and claimed in the original.

The learned counsel for the plaintiff in Burr v. Duryee, 17 L. ed. 653, defined Wells' invention, as described in his original patent, to consist of three parts in combination. 1. The tunnel or chamber. 2. The perforated cone or former. 3. The picker or brush; and they say he regarded this combination of leading and essential parts as constituting the substance and essence of his invention of the machinery.

Although in the original, the honest, intelligible phrase, "tunnel or chamber," is found twelve times in the specification, it is not once found in reference to the invention described in this re-issue.

On this seventh statement of the invention, after twenty two years' deliberation by Mr. Keller and his clients, the words which had been first chosen to describe the thing constructed, and which the Supreme Court had adopted as the most apt phrase to define the great characteristic feature of the invention, was studiously omitted, and the words "plate, guide, deflector," adopted in their stead.

The object of this change is perfectly obvious. Boyden & Gill had machines in operation, in which there was no device in form or substance like that shown or described in Wells' original patent. They had no tunnel or chamber or hood or flaps, with any such functions as those of Wells.

Gill, as well as Boyden, had some guides and directors, as Williams and Fosket had, before Wells' invention, and to gain some pretense for crushing these rivals, they obtained this re-issue.

The complainants now seem to claim that any hat forming machine which had in it any thing which guides the fur between the picker and cone, infringes their patent. If it have a top board or a bottom board or a side board, which in any way conducts the fur or in any way controls it, that is an infringing device, without having in it the other parts of the tunnel or chamber. And under the 4th claim, they claim that the defendants infringe with out any guides whatever.

In each of the first three claims, a distinct and independent function is claimed for the "In machines, in which the fibers are not top, the bottom and side guides, not in combination with each other, as forming an inproperly directed, but are drawn to the surface by the action of the exhaust, the force closed trunk, but as separate devices that may thus induced gradually decreases as the aper-operate independently, and be infringed by the tures on the cone are closed up by the accumuuse of either alone. lation of the fur deposited on the outer surface thereof, and in consequence the required distribution cannot be obtained with certainty."

There is not a word in this specification that refers in any way to the combination of these plates and guides into a tunnel or chamber, and there was not intended to be.

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The construction given to the fourth claim The trunk was discarded bodily, in name by the court below, gives the defendant in er-and description, and so thoroughly

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