The other patent of the appellee which is supposed to be infringed is the reissued patent to Mellinger, No. 11,738. The objects of the invention are stated by the patentee to be two: First, to secure a more perfect gravity adjustment for the beam, which cannot be tampered with by unskilled persons; and, secondly, to provide improved means for supporting the platform. The present suit is concerned only with the first of these objects. That part of Fig. I here shown illustrates the invention.

C

F contains the means whereby the gravity adjustment is effected. Fig. 2 shows one mode of effecting it.

Fig.2

In the specification it is said that in all scales, when the beam is balanced on its pivots, it must have its center of gravity slightly below its pivots, so as to have a small excess of weight below the pivots in order to give the beam the proper degree of sensitiveness and stability in its movements. And this is true of price as well as of weighing scales. The patentee, after commenting upon the difficulties which an inexperienced person would have in readjusting the gravity weight in case of any disarrangement, proposes to put it in a secure place where it shall be out of the way and not exposed to careless meddling after the adjustment has once been made by a competent expert. He therefore provided the cylindrical chamber, F, into the bottom of which cold lead is driven or melted lead is poured. Other soft metal may be used. Enough is introduced to effect the balance, and, if more happens to be put in, the excess may be bored. out. This being done, a cap is to be screwed upon the top with pipe

tongs, and sealed so tightly that it cannot be removed by ordinary means. But the same result is reached, he says, by making the bottom part of the cylinder heavier and then boring out the excess of weight. All this is intended to be done at the factory. Another mode is provided for by making a metallic core for the chamber, which may be moved up and down by a set screw running down through its center and resting on the bottom of the chamber. The core is prevented from revolving by a screw running through the side of the chamber into a spline on the core. All is to be covered and sealed as in the other case. The patentee had, as we have said, pointed out that in all scales where the beam is balanced on pivots the center of gravity should be below the line of the pivots. And undoubtedly this was a well-known principle of construction, but it appears that he did not depend upon the relative height of the adjusting weight in the cylindrical chamber, for he says:

"Although I have shown in this particular instance the chamber or casing, F, arranged vertically and mounted upon one end of the beam, it is merely to perform the additional function of rigidly uniting the upper and lower graduated members of the beam, it being clear that the function of adjusting the gravity of the beam or lever with relation to its line of pivots will be equally performed if the casing or chamber, F, be arranged substantially parallel to and either above or below the line of pivots on said beam or lever."

He does not state how the center of gravity is in such case to be preserved at the proper place, and such a construction would seem to broaden his patent beyond his original conception, and far into the bounds of the prior art. The claims here relied on are the Ist, 2d, 4th, 9th, 10th, and 11th, as follows:

"(1) In a scale, the combination, with the beam, of a vertically arranged chamber or casing rigidly mounted thereon, and a gravity weight inclosed within said chamber, whereby the sensitiveness of the balance of the beam may be adjusted, and said beam is adapted to have its center of gravity varied vertically, substantially as described.

"(2) In a scale, the combination, with the balanced beam, of a casing having a chamber therein with its longitudinal axis at right angles to the longi. tudinal axis of the beam, with means for closing said chamber and a gravity weight carried by said beam and located in said chamber in fixed position, whereby the sensitiveness of the balance of the beam may be secured, but adapted to have its center of gravity varied vertically, substantially as described."

"(4) In a weighing and price scale, the combination with the weighing beam and independent price-beam, having its pivot adjustable with relation to the platform lever connection, of a chamber or casing on the price-beam, having its longitudinal axis at right angles to the longitudinal axis of the beam, and a gravity weight located in said chamber and adapted to have its center of gravity varied vertically, whereby the proportion of the weight below the pivot of the beam may be regulated and the sensitiveness of the balance of the beam adjusted, substantially as specified."

"(9) As an improved means for adjusting the gravity of scale beams or levers, a chamber carried rigid with the beam or lever and adapted to have more or less weight taken therefrom or placed therein and the center of gravity thereby varied vertically, and means for sealing the mouth of said chamber, whereby the sensitiveness of the balance of the beam may be adjusted, substantially as specified.

"(10) As an improved means for adjusting the gravity of scale-beams or levers, a chamber open at one end and carried rigid with the beam or lever, said chamber being adapted to contain weight more or less near its opening to vary its center of gravity vertically, and means for sealing the opening to

said chamber, whereby the sensitiveness of the balance of the beam may be adjusted, substantially as specified.

"(11) In a weighing and price scale, the combination with the weighing beam, and an independent price beam, having an adjustable weight-per-unit knife-edged connection between said price-beam and the platform lever connection, of a chamber open at one end, a gravity weight carried by said pricebeam and located in said chamber, and adapted to have its center of gravity adjusted vertically with reference to said price-beam, whereby the gravity of the beam and the sensitiveness of its balance may be adjusted, and means for sealing the opening of said chamber and thus prevent tampering with the gravity of said beam, substantially as specified."

Various means for adjusting the gravity of scale-beams had long been in use, and it was only the provision of some new and useful means of effecting it which would entitle the device to a patent, and all old constructions or their equivalents belonged to their inventors or to the public. Without further reference to the progress of the scale-making art in this direction in earlier patents, we will glance at the patent to McNeill, No. 396,285, granted in 1889. This patent was for improvements in computing scales, one of which was in the means for adjusting the balance of the beam. The drawings show the price-beam and computing beam balanced on pivots in the usual way, and at their outer ends, integral therewith, a cylindrical chamber, or "bore," as it is termed, "which are adapted to receive suitable weights for balancing, such as shot, or the like." If, as we must suppose, the patentee knew, what was commonly known in the manufacture of scales, that the center of gravity should be in a line a little below the line of the pivots, we must presume that feature was embodied in his scale in providing for the adjustment. Observing this requirement, he makes the identical provision for containing the balancing weight as is found in the Mellinger patent into which McNeill says he puts "suitable weights," and a suitable weight would be any weight adapted to the purpose. It seems to us clear that this covered the general form of construction of the patent in suit, except that it did not show the screw cap sealed in to prevent intrusion, an element included in the combination of the ninth, tenth, and eleventh claims. The appellant, however, does not use this latter device, but an ordinary cap removable by simply lifting it. If it was desirable to vary the vertical adjustment of the weight, that was easily. practicable by raising the bottom of the bore with some other suitable material, or other means which would readily occur to a mechanic. The difference in this regard between the patent in suit and McNeill's is extremely slender. It is but "the shadow of a shade." So, if it was seen to be desirable that the weight should not have capacity to change its position laterally, an ordinary observer would know that the weight should conform to the bore. In regard to the form shown as a special illustration of Mellinger's balance weight, namely, a core raised and lowered in the chamber by a screw, it is enough to say that the appellant does not use it. Indeed, it is not shown that the appellant's structure contains anything more than that of the McNeill patent in this matter of adjusting the balance of the beam. In fine, we think that the 1st and 4th claims of this patent were anticipated by the McNeill patent, and that the 2d, 9th,

10th, and 11th claims are not infringed. The latter all include as an element of the combination the closed or sealed chamber which the patentee described as one of the distinguishing features of his invention, and this the appellant does not use. We do not pass upon the validity of those claims. Testimony was introduced by the appellant which it claims is to the effect that it does not make any adjustment itself, but makes and sells its scales with provision for such adjustment as the purchaser sees fit to make, and we are not referred to any evidence conflicting with this. Of course, if it made or sold scales having peculiar provision for the intended incorporation therein of a valid patented device of the appellee, it would be liable as a contributory, if the expected incorporation should thereafter be made by another. But if it makes or sells scales having simply adaptations for a proper adjustment, such as was known in the art, it would not be liable if another person should of his own volition put into the scales a form of adjustment patented by the appellee. But we need not decide this question of fact. Assuming for the present purpose that the Mellinger patent in some of the claims shows a patentable improvement of the McNeill invention, we do not find that the appellant makes use of such improvement.

We think it proper to say, in conclusion, that the history of these computing scales as exhibited by this record shows that the fundamental conception, as well as the invention of the principal mechanical elements of such scales, are justly attributable to the Flints. Their scale looks simple enough in the drawings, but it was the starting point in all the directions pursued in subsequent improvements, most of which relate to the merest matters of detail, though, taken all together, they have rendered the original invention more practical and useful.

The decree will be reversed, and the cause remanded with direction to dismiss the cross-bill at the cost of the appellee in this as well as in the Circuit Court.

HALE & KILBURN MFG. CO. v. LEHIGH VALLEY TRACTION CO. (Circuit Court, E. D. Pennsylvania. December 31, 1903.)

No. 3.

1. PATENTS-HANDHOLD ON CAR SEATS-ANTICIPATION.

Davis patent, No. 648,927, relating to certain improvements in the backs of car-seats by the addition of a handhold from the cut-out corner of the seat, intended for the use of passengers compelled to stand in the aisle, held not anticipated by McKelvey and Van Beek patent, No. 363,661; Gilfillan patent, No. 436,829; Gilfillan and Emmert patent, No. 421,356; or Stevenson reissued patent, No. 6,429.

2. SAME.

Where it was claimed that Davis patent, No. 648,927, for handhold on car-seats, was anticipated by Hale patent, No. 626,831, but the patentee testified that before the issuance of the patent to Davis his partner disclosed such handhold to witness, and that witness immediately took steps to put it into commercial use, and the Hale patent made no claim for the seat-back or the handle, which was merely shown in one of the specifica

tions thereof, the Davis patent thereon subsequently issued was not anticipated by the Hale patent.

8. SAME-PATENTABLE NOVELTY.

Davis patent, No. 648.927, for a handhold on the inside corner of carseats, for the benefit of passengers compelled to stand in the aisles of crowded cars, is not void for lack of patentable novelty.

In Equity.

S. O. Edmonds, for complainant.

P. K. Erdman and George H. Knight, for respondent.

J. B. MCPHERSON, District Judge. This suit is brought to restrain the infringement of letters patent No. 648,927, applied for on August 6, 1898, and granted on May 8, 1900, of which the complainant is now the owner. The inventor was George H. Davis, and his patent relates to certain improvements in the backs of car-seats. Its subject and scope will perhaps be best understood by examining the following quotation from the specification:

"Much difficulty and annoyance are experienced by the traveling public in crowded railway cars, owing to the lack of satisfactory provision for sup porting the passengers standing in the aisles. Street cars are usually provided with pendent hand straps hanging from a rail or support in the top of the car; but such straps are only conveniently placed when the seats extend longitudinally, and are more or less inconvenient, as they necessitate the stretching of the arm upward, and are unsuited to persons of short stature. "It is an object of my invention to provide a car-seat back with a handpiece or handle suitable to be grasped by the hand of a passenger standing in the aisle, and to furnish the requisite support.

"It is also an object of my invention, in thus providing the seat-back with a supporting handle, to preserve the symmetry of the seat-back, and to avoid the formation of any objectionable extensions or projections which would form obstructions and be liable to engage the apparel of the passengers.

"A is a car-seat back, here shown as a shifting seat-back, carried by shifting side arms, B, B, and adapted to be shifted from one side of the seatcushion, C, to the other.

"D is the handpiece or handle, carried by the seat-back, and located in an ordinary car-seat at the outer or aisle end, so that it may be grasped by passengers standing in the aisle. In some cases the handle is located at each end of the seat-back. In my preferred construction the corner of the seatback is cut away or reduced, and the handle is attached at the cut-away or reduced portion, so as to preserve the symmetry of the outline of the seatback, and not to form any projection or extension therefrom. The preferred form of the handpiece or handle is that shown in the drawings, consisting of an angular casting or metal piece, of which two sides, d, d', form the outer portion, which is grasped by the hand, and the third side, d, constitutes the base, which is fitted upon the face of the cut-away or recessed corner of the seat-back. Extensions, d, of the sides, d, d', form fastening-lugs by which the handle may be secured to the top and side of the seat-back by screws or otherwise, as shown in Fig. 1. The base, d, may be provided with a lug or lugs, d, adapted to engage recesses in the face of the frame of the seat-back to give greater rigidity and lateral strength, and to facilitate the application of the handle. In this construction the sides, d, d', may be fitted snugly against the ends of the boundary-rib, a, of the seat-back, thus forming a substantial continuation thereof, and the corner of the handle may be rounded, as at d, to correspond with the opposite corner of the seat-back, and to render the rest more comfortable to the grasp.

"The details of construction may be varied without departing from the invention, and, if desired, the hand-grasp or handle may be formed by cutting off a corner or portion of the frame of the body of the seat-back and extend