lee's patents in part, and also denying generally infringement of said patents. The usual replication was filed to this answer. It would seem that by common consent the pleadings in the original suit have dropped out of consideration, and the controversy has been waged on the matters of the cross-bill and the answer thereto. The patents claimed by the appellee, and with the infringement of which the appellant was charged, were five in number. Twenty-two of the claims thereof are here involved. At the hearing upon pleadings and proofs the Circuit Court decreed all these claims to be valid and all infringed. An injunction was awarded, and a reference ordered for the ascertainment of the profits and damages. Defendant in the cross-bill has appealed.

C. H. Fisk, for appellant.

Paul A. Staley and Border Bowman, for appellee.

Before LURTON and SEVERENS, Circuit Judges, and COCHRAN, District Judge.

SEVERENS, Circuit Judge, having given the foregoing outline of the case, delivered the opinion of the court.

The appellant is charged with the infringement of the following patents: A patent to J. A. Pitrat, No. 385,005, issued June 26, 1888; a patent to Ozias, No. 316,348, issued December 20, 1898; a patent to Sanderson & Ozias, No. 451,075, issued April 28, 1891; a patent to Culmer, No. 486,663, issued November 23, 1892; and a patent to Mellinger, No. 11,738, reissued May 2, 1899. All of these patents were for improvements in "weighing and price scales," more commonly called "computing scales," the special purpose of which is to ascertain the whole price of the thing bought or sold, without any computation by the person using it; the whole price being designated by the scale itself when manipulated. The utility of these scales consists in the certainty and readiness by which the total price. is ascertained. The essential principle on which they rest is the variation of the leverage on the beam given to the load which is the subject of the operation; the extent of the leverage being governed by the price per pound or other unit, suitable graduations being marked on the short arm of the beam, and corresponding graduations on the opposite arm of the beam beyond the pivot.

The first patent granted for scales of this kind shown in the record was one to Tilly and Warren Flint, issued March 20, 1849, a patent to which we shall have occasion to refer hereafter. Several patents were subsequently granted for various improvements in organization, but depending upon the same general principle. Among these, three patents had been issued to Pitrat prior to the one here in question, the first bearing date March 31, 1885. To some of these we shall also refer later on. In the early patent to the Flints the thing to be weighed or estimated was suspended on a pan by a connecting rod running up to the short arm of the lever or beam, and there pivoted to the lower end of the loop or knife-edged saddle, the lower edge of the upper portion of the loop resting in the notches on the lever which marked its graduation. Later on the scheme was transferred to platform scales in which the platform and its supports took the place of the pan. In one form of platform computing scales (the one to which the appellee's patents relate) the connecting rod (in

cluding the head-block between the platform and the price-indicating member of the beam did not move laterally-indeed, pains were taken to prevent such motion-but the beam was moved through the headblock to reach the proper place on that arm to designate the price per unit. This was the adjustment.

The other organization, to which class the appellant's scale belongs, retains the beam, the pivot, and their supports rigidly in place; and the connecting rod (or the parts which perform its office) and the head-block are shifted laterally to reach the proper place for the head-block on the price-beam. The details of construction of the two forms vary to suit the differing requirements. Recognizing these differences and the obvious difference in their mode of operation, we were led to remark upon them in a former suit between the same parties (118 Fed. 965, 55 C. C. A. 459), where the question was whether one form would be likely to be taken for the other by the public; and the marked mechanical difference was one of the grounds upon which we held that such mistake was not likely.

The patent having the most extensive scope of those in suit is the Pitrat patent, No. 385,005. It was the fourth of those issued to him, and was granted for "certain new and useful improvements in weighing and price scales" which he claimed to have invented, having the following objects: To take off from the platform levers the load of the beams and weights required in this kind of scale, to adapt the platform to use either with or without a scoop, and to provide means for holding the connecting rod in a fixed position while the beam is shifted through it, and simultaneously effecting such shifting of the beam. Only the first and last of these objects are here involved. Figure 2, here shown, is a front view of the scale.

Figure 10 shows the platform levers and the counterbalancing lever and poise designed to take off the weight of the platform levers and other parts employed in the operation of the scale.

In Fig. 2 there is seen a sub-base, h, resting on two pillars. The connecting rod passes from the platform levers up through the left hand pillar to the head-block resting on the lower beam. The base, i, which carries the supports of the beam, is moved on the sub-base either to right or left by means of a pinion set on a shaft extending back from the thumb-piece, U, and meshing with cogs set lengthwise of the bottom of the base. By turning the thumb-piece, U, the beam is carried through the head-block at the upper end of the connecting-rod until the head-block reaches the proper distance on the lower arm of the beam from the pivot, o, to indicate the price per unit. Simultaneously with this movement of the thumb-piece and shaft, the latter is pushed back against a spring until it engages the lower arm of a lever, V, which, turning back on its pivots, v' v', engages the head-block by a pin at its upper end which enters the slot, g2, in the head-block. By this means the head-block, and of course the connecting rod, are held in rigid relation to the sub-base while the beam is adjusted through the former to the right or left.

In Fig. 10, b is the counterbalancing lever and C is the poise. This lever is pivotally connected at e with the platform levers and the lower end of the connecting rod so as to neutralize the weight of those parts and the parts above directly associated therewith. The combination of this counterbalancing lever with the other enumerated parts constitutes the substance of the first claim, which reads as follows:

"The combination, with the platform levers and the price-beam, of the head-block, and the connecting rod interposed between and connecting the platform levers directly with the head-block of the price-beam, substantially as and for the purpose described."

The patentee, after mentioning the platform levers, a and a', which are ordinary platform levers, says:

"In addition to the said levers (and unlike any of the other platform scales), I provide an extra lever, b, carrying a weight, C, at the one end, while the opposite end engages pivotally with the rod, e, which connects the lower lev

ers, aa', with the left branch of price-beam, K, above. The object of this weighted lever, b, is to act as a counterpoise to levers a a', the platform A', the removable lid, y, the connecting rod, e, and the cross-head or block, g."

And we think the weighted lever, b, was intended to be included in this claim as one of the "platform levers."

The appellant's scale has means for counterbalancing similar parts of its structure. The appellee, in order to maintain the charge of infringement, claims for its patent that, though not a pioneer, it is one of a broad and fundamental character, having limitations wide enough to include generally any means operating to effect a similar purpose. At least, it is necessary to attribute to its patent a scope substantially as broad as this in order to establish the charge of infringement of this patent. But, although we do not deny to it the merit of invention, it is impossible to recognize in it any such scope as is claimed for it. It was as old as anything in this art to provide means for counterbalancing the weight of those parts of the structure which rested upon the price-beam. In the Flint patent of 1849 this was done by a lever and poise which lifted those parts by attachment at the upper end of the connecting rod. In the Allen patent of 1871 means were provided to counterpoise the same parts by a lever and weight. And in a patent to Pitrat himself, of March 31, 1885, the fixed load was counterbalanced by a poise and lever. And it would seem to have been a great desideratum, if not a necessity, for accurate work, that this fixed load should in some way be neutralized. It is true that in some of the previous patents, where this point was attended to, there was a suspended pan instead of a platform; but the transference of the saine means to operate in a platform scale was not invention, and it is impossible to hold that Pitrat, by putting these old means into the patent in suit, could preclude all others from the use of such means in the scales in which they might wish to employ them. To give such effect to the claim in question would make it so broad that it could not stand in the face of the prior art. It can only be supported for the specific construction pointed out by the patentee, namely, for a counterbalancing beam and poise combined and in connection with the platform levers and the connecting rod. So construed, it is not contended that the claim is infringed. It may well be that putting this part in a secure place and out of the way might merit a patent. Such facts were held by us in Star Brass Works v. General Electric Co., 111 Fed. 398, 49 C. C. A. 409, to be worthy of recognition. In the defendant's scale, the similar parts are counterpoised by an adjunct which serves also as a tare-beam in the elevated parts of the scale.

The other claims of this patent which are alleged to be infringed. are the fourth, seventh, and tenth, as follows:

"(4) The combination, with the price-beam and the head-block having a vertical slot, of the retaining lever and engager carried thereby and adapted to enter the slot, substantially as and for the purpose described."

"(7) The combination, with the sub-base, the price-beam mounted on a base and the head-block, of the retaining lever having lateral projections between its ends, the uprights, and the pivotal supports, substantially as and for the purpose described."

"(10) The combination, with the platform levers, the price-beam, the base carrying the price-beam, and the head-block provided with the index or pointer, of the rod connecting the head-block and the said platform levers and the retaining lever, substantially as and for the purpose described."

These several claims all include the "engager," which is designed to hold fast in its place the head-block while the beam is shifted through it, in combination with other parts not new except that the tenth takes in the price-beam shown on the base in Fig. 2, a feature which it is not necessary for us to consider, in view of our opinion in respect to the scope to be given to the device called the "engager." The seventh claim involves a modified form of the engager, in which the upper end is divided and embraces the sides of the head-block. With respect to these claims it is again urged that the patent is entitled to the broad construction contended for in construing the first claim, and we are asked, in effect, to accord to this device such effect as shall exclude all other means for holding the head-block in place while the beam is being adjusted. This we should have to do in order to find infringement. But other conditions than those recited exist. The engager in the appellee's patent has for its only purpose that of a detent holding the head-block in a constantly fixed perpendicular relation to the constantly perpendicular connecting rod. It fits the requirements of the class of computing scales in which it was intended to be used. It would have no adaptation to a scale in which the head-block is designed to be constantly moving laterally. What the appellee points out in the other party's scale as an equivalent of its engager is a finger which is pressed up into an opening in the bottom of the head-block and presses it up against springs in its upper part which normally press down a notched member of the head-block into notches on the beam. Without going into more detail, it is sufficient to say that this pressure upward of the finger into the headblock performs the function of relieving the head-block from its normal grip upon the beam while it is being moved along it to its place at the price mark for the unit of weight. We think it not too much to say that this device bears no resemblance to the engager of the appellee's patent, and, since it has no such function, it cannot be that a combination including it operates in the same way as the combination of the appellee which includes, as an efficient and characteristic element, its engager. This conclusion renders it unnecessary to make further comparison. It follows that we do not find these claims to have been infringed. We may repeat what we said of the first claim, that we do not raise any question of the patentability of these claims. But we think that for the reasons stated they are of narrow compass, and that they are not infringed.

The patent to Ozias, No. 316,348, was for improvements in such scales, the object of which he states to be to improve the detailed construction of the parts, so that they shall be less liable to be disarranged or worn and thereby become inoperative. The claims here involved, the fourth, fifth, and sixth, relate to the head-block and the means for supporting it during adjustment on the beam, and particularly to the inclusion in specified combinations of a roller inside the head-block bearing against the under side of the beam, and, in one