became abandoned April 4, 1889, and on March 29, 1890, she filed the pending application, upon which patent has been granted.

On November 7, 1889, R. W. Coffee filed his application for a patent for a like machine, which was followed by one on behalf of one George W. Cable November 25, 1889. The interference was declared in the Patent Office July 5, 1890, the issue raised being that of priority of invention of the matter claimed by each and specified as follows:

1. The combination, with suitable feeding devices, of a series of grippers adapted to seize the stem of a tobacco-leaf at different points along it length, and means for tearing the leaf from the stem while held by the gripper, substantially as and for the purpose specified.

2. In a machine for stripping the stems from tobacco-leaves, the combination, with mechanism for feeding the leaves, of grippers for seizing the stems, and means for tearing the leaves from the stems, substantially as shown and described.

A volume of testimony was taken by the respective parties, and on July 12, 1892, the Examiner of Interferences decided in favor of the Guerrant claim. Cable acquiesced in this decision, but Coffee appealed to the Board of Examiners-in-Chief, who, on November 17, 1892, affirmed the decision of the Examiner, with one dissenting opinion. Coffee then appealed to the Commissioner, who affirmed the Board's decision February 8, 1893, and later refused a rehearing. This decision has been brought here by Coffee for review.

The testimony shows that J. C. Guerrant originated the idea of a tobacco-stemming machine as early as 1877 or 1878, and commenced experiments in execution thereof, which he continued so far as to build a machine and apply for a patent in 1883.

The question to be determined is wholly of fact, there being substantial agreement upon the law of the case. The rule of law is thus stated by the Supreme Court of the United States:

The invention or discovery relied on must have been complete and capable of producing the result sought to be accomplished. If the thing were embryonic or inchoate; if it rested in speculation or experiment; if the process pursued for its development had failed to reach the point of consummation, it cannot avail to defeat a patent founded upon a discovery or invention which was completed, while in the other case there was only progress, however near that progress may have approximated to the end in view. The law requires not conjecture but certainty. If the question relate to a machine, the conception must have been clothed in substantial forms which demonstrate at once its practical efficacy and utility. The prior knowledge and use by a single person is sufficient. The number is immaterial. Until his work is done, the inventor has given nothing to the public. (Coffin v. Ogden, 18 Wall., 120.) He is the first inventor and entitled to a patent who, being an actual discoverer, has first perfected and adapted the invention to actual use. (Whitely v. Swayne, 7 Wall., 685; Agawam Co. v. Jordan, Id., 583.)

A perfect invention does not necessarily mean a perfectly constructed machine, but one so constructed as to embody all the essential elements of the invention in a form that would make them practical and operative; so as to accomplish the result in a reasonably practical way. (American Co. v. Tool Co., 4 Fisher, 299.)

10693 PAT-23

The stemming-machine invented by Guerrant was far from being a perfect machine; but the evidence satisfies us that his

conception was clothed in substantial forms which demonstrate at once its practical efficacy and utility.

Guerrant was poor and had great difficulty in procuring the money with which to construct his first machine. When set up and ready to be given a practical test, it lacked the full equipment of "grippingblades." New ones were added from time to time, but were not all in when Guerrant died. There were, however, gripping-blades enough to test the efficacy of the machine and demonstrate its utility.

The machine was set up in a tobacco factory at Danville, Va., a great tobacco-manufacturing place. It was operated by hand, and also by steam power, at different times within a short period, and in the presence of a number of people. When fed with the tobacco-leaves, prepared for stemming, it performed fairly satisfactory work. But few leaves passed the blades without having the stems properly removed.

In all about one thousand pounds were stemmed upon it. It had not broken down or failed, and was geared and capable of this operation when Guerrant died. Had he lived we think there can be no reasonable doubt but that he would have had his machine duly patented. The process of applying for the patent seems not to have been well managed, and there were defects in the drawings, which had to be corrected. Before the matter could be properly attended to Guerrant died. His widow was left poor, with a large family of children, sickness among whom caused her to remove for a time to North Carolina.

The parties who had been interested with Guerrant and had advanced him small sums of money from time to time were afraid to advance more after his death. They were not mechanics and not capable of comprehending and carrying out the conception and work of the inventor. One of these, Schoolfield, had some new gripping-blades made in Baltimore and fitted in the machine. After this it was operated to a very limited extent and stemmed a small quantity of tobacco; but the results were not so satisfactory as were the trials of the machine made before Guerrant's death. It is a fact that it was never operated continuously for work in a commercial sense. Schoolfield lost confidence in its practical commercial value and made no other attempt with it. His loss of confidence and cessation of endeavor do not prove the soundness of his opinion. Others who saw the machine in operation entertained a different opinion. Guerrant, who for years had thought of and worked on the invention, at last believed that he had mastered the difficulties in his way and at once applied for a patent. The fact remains, established by a number of witnesses, that, tried from time to time in the rough state of its original construction, the machine did stem tobacco in a manner reasonably satisfactory to practical men and fairly promising good practical results when it might be constructed with thorough mechanical skill in all of its parts. We are satisfied,

from all the evidence, that the Guerrant machine was something more than an unsuccessful experiment; that it was in fact a reasonably successful reduction of the invention to practice.

Nor do we find support in the evidence for the theory that the invention had been abandoned and had been only recalled to memory by the new and successful invention of Coffee. The facts of this case make it a very different one from Howe v. Underwood, (1 Fisher, 160.) The original machine was removed from place to place and worked at by various persons. Its pieces have been gathered together and made an exhibit in the case. They were examined, referred to, and identified by several witnesses, and there is no doubt that in all the essential parts constituting the invention they are identical with the application made in 1883 and that made by the administratrix in 1890.

The correct conclusion to be arrived at from a consideration of all the evidence respecting this question is stated with precision in the decision of the majority of the Board of Examiners as follows:

From the time when the application for the invention, the application of 1883, was made until the date of the application for the invention in its final form, the machine itself, on which both applications were based, was preserved, was continuously in use, either partly or wholly dismantled or entirely assembled, for the purpose of obtaining a patent and with a view to its mechanical perfection for actual use in the market or in the factory. During all of this time there was effort toward these ends, but by persons not well equipped for the task either with knowledge of the law of patents or with business energy or skill in mechanics.

The various changes in the control of the machine and of its invention and the successive contracts respecting the same indicate a belief in the completeness of the invention and a purpose to make the machine mechanically perfect for industrial use for profit.

This is not the case of a dismantled and forgotten machine recalled to memory by the successful effort of a later inventor. The later inventor in this case does not appear to have ever put a machine on the market.

This is rather the case of a completed invention successfully reduced to practice and delayed from patent and from use in the art by the death of the inventor, a competent man, by the poverty of his executrix, and by misdirected efforts of unskilled persons who successively had charge of the embodiment of the invention.

It is unnecessary to say anything with respect to the invention of Cable, as he has not appealed from the decision against him; but it may be added that his ideas seem to have all been drawn from the machine of Guerrant. Coffee's earliest conception of a tobacco-stemming device does not date earlier than 1889. It seems to have occurred to him in the course of some experiments with a machine for manipu lating leaf tobacco. His gripping device operates upon the same general principle as Guerrant's. He examined the Guerraut machine, by permission of those controlling it, in company with Mr. Adams, who was interested at the time in his (Coffee's) own invention, as well as in the Guerrant machine. His gripping device had not been made and put in his own machine when he saw Guerrant's. He testifies, however, that his device was matured before he saw Guerrant's and that his inspection did not cause any change. Indeed, he testifies that he

did not at the time observe the saw teeth of the grip blades in the Guerrant machine, and was surprised when told afterward by Schoolfield, who examined his machine, that the construction of his blades was similar to that of the blades of the Guerrant machine. From the testimony on this point it is not, to say the least, altogether clear that Coffee did not obtain the idea of his gripping-blade from the one in the Guerrant machine. It is not necessary, however, in the view which we have taken of the case, to pursue this inquiry further. Its determination is not necessary to a decision of the case. The Commissioner of Patents did not err in the decision appealed from, and it must therefore be affirmed. It is so ordered, and this decision will be certified to the Commissioner of Patents for his information and observance.

[U. S. Circuit Court of Appeals-First Circuit.]

MCKAY & COPELAND LASTING MACHINE Company v. DIZER et al. SAME v. CLAFLIN et al.

Decided March 28, 1894.

68 O. G., 281.

1. COPELAND, WOODWARD, AND BROCK-LASTING-MACHINES FOR BOOTS AND

SHOES-INVENTION.

Letters Patent No. 197,607, issued November 27, 1877, to Copeland, Woodward, and Brock for an improvement in lasting-machines for boots and shoes, which embodies means to cure a long recognized defect in like machines, Held to be valid, as being for an invention, although the means were simple and apparently obvious after the event.

2. SAME-INFRINGEMENT-EQUIVALENTS.

The substitution of spring-rockers for a pivot or hinge to produce a tipping movement in one of the plates of a lasting-machine is an infringement, for the two are equivalents.

APPEALS from the Circuit Court for the District Court of Massachu

setts.

Mr. J. J. Storrow, Mr. J. J. Storrow, Jr., and Messrs. Fish, Richardson & Storrow for the appellant.

Mr. Elmer P. Howe, Mr. J. L. S. Roberts, and Mr. W. K. Griffin for the appellees.

Before COLT, NELSON, and WEBB, Judges.

NELSON, J.:

In these two cases the plaintiff alleges the infringement by the defendants of the eighth claim of the patent in suit. The claim reads as follows:

In a lasting-machine, the combination of the adjustable carriage B, provided with means for supporting an oscillating plate, and said oscillating plate, substantially as described.

The patent is for improvements in machines for lasting boots and shoes-that is, for machines which aid the workman in performing the

operation of stretching and drawing the upper leather of a boot or shoe over a last. The carriage B mentioned in the claim is the carriage that carries the heel-lasting mechanism, and its adjustability is the longitudinal adjustment on the bed of the machine toward and from the toelasting mechanism to accommodate lasts of different lengths. The oscillating plate is the plate upon which is arranged the heel-lasting mechanism, which consists of plates that slide forward and inward on each side of the heel end of the last and bend over and press down the edges of the upper leather upon the insole. The means described in the specification for supporting the oscillating plate upon the carriage is a pivot or hinge connection, constituting the axis of oscillation, which is in line with the length of the last. The oscillating plate tilts on its axis of oscillation to accommodate the lasting plates to the ends of the sole of the last. The defendants' machine contains the adjustable carriage and the oscillating plates of the patent, the oscillating plate being supported on the carriage through the intervention of springs on each side of the longitudinal axis of the carriage and the plate tilting or oscillating with relation to the carriage by the yielding of the springs. The meaning of the eighth claim is perfectly clear and plain. It is for a combination in a lasting-machine of two elements-an adjustable carriage provided with means of supporting an oscillating plate and the supported oscillating plate. The defendants' machine has both these elements combined, the only difference being the substitution of spring-rockers for a pivot or hinge in the supporting mechanism. There can be no question that a spring-rocker is a perfectly familiar way of obtaining a tipping or oscillating motion, as well as a pivot or hinge, and that one is a well-known equivalent for the other. The defendants' machine is a manifest infringement of the eighth claim of the patent, if the claim is valid. The court below held that it was invalid for lack of invention.

The brief submitted in behalf of the plaintiff contains a clear and accurate statement of the history of the art of lasting by machinery and the condition of the art at the date of this invention. For many years prior to 1877 inventors had been at work on the problem of lasting machinery, but had not solved it. In an earlier patent, dated June 12, 1877, the three inventors of the patent in suit, who had been engaged for several years in endeavoring to invent a perfected laster, had described the most advanced machine which then existed; but it was not satisfactory because it could not satisfactorily last the toes and heels of the shoes ordinarily made. Finally these inventors discovered where the defect lay and the cause of it, and remedied it by introducing a new feature never before used in any lasting-machine. The end-closing mechanism had hitherto been carried directly on the main carriage. The improvement consisted in mounting it on a separate bed-plate, which was made capable of lateral tipping by inserting a joint between the bed-plate and the main carriage, thus securing an adjustability never before found, while the direction of the main tip,