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rod with a screw-threaded arm mounted thereon, or any modifications thereof or improvements thereon operated by a key. Clearly he did not monopolize the prior art or entirely different means operating in a different way to produce a given result. His particular combination of old elements to constitute his means he did cover by his patent, but not other combinations of other elements operating differently.

In Westinghouse v. Boyden Power Brake Co., 170 U. S. 556, 18 Sup. Ct. 716, 42 L. Ed. 1136, Mr. Justice Brown, quoting from and approving Burr v. Duryee, 1 Wall. 531, 570, 17 L. Ed. 650, said:

"Much less can any inference be drawn from the statute that an inventor who has made an improvement in a machine, and thus effects the desired result in a better or cheaper manner than before, can include all previous inventions and have a claim to the whole art, discovery, or machine which he has improved. All others have an equal right to make improved machines, provided they do not embody the same or substantially the same devices or combination of devices which constitute the peculiar characteristics of the previous invention."

And at pages 568 and 569 of 170 U. S., at page 722 of 18 Sup. Ct. (42 L. Ed. 1136), he further said:

“‘An infringement,' says Mr. Justice Grier in Burr v. Duryee, 1 Wall. 531, 572, 17 L. Ed. 650, 'involves substantial identity, whether that identity be described by the terms, "same principle," same "modus operandi," or any other.

* The argument used to show infringement assumes that every combination of devices in a machine which is used to produce the same effect is necessarily an equivalent for any other combination used for the same purpose. This is a flagrant abuse of the term "equivalent."'

"We have no desire to qualify the repeated expressions of this court to the effect that, where the invention is functional, and the defendant's device differs from that of the patentee only in form, or in a rearrangement of the same elements of a combination, he would be adjudged an infringer, even if, in certain particulars, his device be an improvement upon that of the patentee. He But, after all, even if the patent for a machine be a pioneer, the alleged infringer must have done something more than reach the same result. must have reached it by substantially the same or similar means, or the rule that the function of a machine cannot be patented is of no practical value. To say that the patentee of a pioneer invention for a new mechanism is entitled to every mechanical device which produces the same result is to hold, in other language, that he is entitled to patent his function. Mere variations of form may be disregarded, but the substance of the invention must be there. As was said in Burr v. Duryee, 1 Wall. 531, 573, 17 L. Ed. 650, an infringement is a copy of the thing described in the specification of the patentee, either without variation, or with such variations as are consistent with its being in substance the same thing. If the invention of the patentee be a machine, it will be infringed by a machine which incorporates in its structure and operation the substance of the invention; that is, by an arrangement of * That two machines mechanism which performs the same service or produces the same effect in the same way, or substantially the same way. produce the same effect will not justify the assertion that they are substantially the same, or that the devices used are, therefore, mere equivalents for those of the other.'"

**

There is no identity of operation between complainant's take-up device and that of the defendants. True, by operating each the same ultimate result, the bringing together of the back pieces, cases, and the consequent binding of the interposed leaves, is attained. The function of each device is to do this; but a function cannot be patented. See Westinghouse v. Boyden Power Brake Co., 170 U. S. 556, 557, 18 Sup. Ct. 707, 42 L. Ed. 1136.

Conceding that the functions of two devices are practically the same, there must be substantial identity of means to justify us in saying they are mechanical equivalents. Same case, page 571 of 170 U. S., 18 Sup. Ct. 707, 42 L. Ed. 1136. Leslie winds up all loose cord, cable, or strap on a revoluble spindle having a ratchet and held from unwinding by a spring-pressed dog, while defendants do not wind up the loose cord, cable, or strap at all. Take away Leslie's dog, which defendants do not use, and a slight pull will unwind the cord and loosen the bound sheets or leaves. With the defendants' device no amount of pulling can revolve the screw-threaded rod backward and loosen the strap. But the defendants used and had the right to use the same device, substantially, they now use before Leslie came into the field at all. Leslie must be deemed to have incorporated into his claim the same means he has fully described in his specifications. He has not given those described as a preferred form, but as the form and the devices of his take-up mechanism. He can lay no claim to the spindle with a perforation to permit the passage of the single cord therethrough and a ratchet attached, all controlled by the dog. This was an old and well-known mechanical device. See patent to Huber and Miller of November 3, 1896, No. 570,803. So the straightaway pull, utilized by the defendants, was shown in this art as early as 1884. See Slade, English patent, No. 597. The lazy tongs are also shown in the prior art, and constitute such an old and well-known mechanical device that any one was at liberty to use them. They play no important part in this controversy. They have nothing to do with the actual operation of the device.

From all the evidence and exhibits in the case, I am satisfied that the claims of the Leslie patent in issue here (complainant's), broadly construed so as to cover defendants' device, are void as failing to disclose patentable invention in view of the prior art; that, construed somewhat narrowly, as they must be, having the prior art in view, defendants do not infringe.

There will be a decree dismissing the bill with costs.

SHARP v. BELLINGER et al.

(Circuit Court, N. D. New York. March 5, 1909.)

No. 7,159.

1. PATENTS (§ 165*)-CONSTRUCTION-LIMITATION BY LANGUAGE OF CLAIMS. Courts will go far to save a patent for a meritorious invention, but they cannot reconstruct claims and disregard their very terms, and add or substitute material words not found therein, but necessary if the true invention is to be covered.

[Ed. Note.

§ 165.*]

For other cases, see Patents, Cent. Dig. § 241; Dec. Dig.

2. PATENTS (§ 174*)-CONSTRUCTION-IMPROVEMENT PATENT.

When the invention of a patent is not a pioneer invention, the inventor is held to a rigid construction of his claims, and is not entitled to any considerable range of equivalents; and when, in a patent for a mere imFor other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

provement, which in view of the prior art is extremely narrow, he has limited his claims by specific words to a specific form of device or element, he is bound thereby.

[Ed. Note. For other cases, see Patents, Cent. Dig. § 249; Dec. Dig. § 174.*]

3. PATENTS (§ 328*)-INVENTION AND INFRINGEMENT-FIRE-ESCAPE.

The Sharp patent No. 835,985, for a fire-escape, consisting of a stationary frame carrying a reel upon which is wound a cable by means of which a person may lower himself to the ground, the movement of the cable being controlled by brake-shoes, discloses patentable invention in the manner and means of applying the brake-shoes, but is only for an improve ment, and the claims must be limited according to the precise means shown and described. As so construed, the patent is not infringed by the device of the Davy patent No. 818,526.

[Ed. Note. For other cases, see Patents, Dec. Dig. § 328.*]

In Equity. Suit to restrain alleged infringement of United States letters patent and for an accounting.

See, also, 155 Fed. 139.

Franklin H. Hough and Charles J. Williamson, for complainant. Robinson, Martin & Jones, for defendants.

RAY, District Judge. The complainant alleges infringement by the defendants of claims 1 and 7 of United States letters patent No. 835,985, dated November 13, 1906, and issued to Judson C. Sharp, the complainant, for fire-escape, on application filed July 13, 1904. The claims in issue read as follows:

"(1) A fire-escape comprising a frame, a shaft carried thereby, a springactuated reel journaled upon the shaft, a cable secured to and winding about the reel, a fixed ring positioned about said shaft, semicircular brake-shoes having corresponding ends recessed, the bottoms of said recesses being inclined, a lever having inclined portions engaging said recesses, a centrifugallymovable weighted member, and means intermediate the same and said reel whereby said member may be rotated and thrown against said lever for the purpose of expanding the brake shoes against said ring, as set forth.

“(7) A fire-escape comprising a frame, a shaft carried thereby, a reel journaled upon said shaft, a cable around said reel, a stationary ring about said shaft, a centrifugally-movable weighted member, semicircular brake-shoes with slotted ends, a lever adapted to engage the slotted ends of said shoes to expand the same, a rotatable collar, gear connections between the same and said reel, and means carried by said weighted member for contact with said lever, whereby the brake-shoes may be expanded as the latter are rotated, as set forth."

The elements of claim 1 are (1) a frame, (2) a shaft carried thereby, (3) a spring-actuated reel journaled upon the shaft, (4) a cable secured to and winding about the reel, (5) a fixed ring positioned about said shaft, (6) semicircular brake-shoes having corresponding ends recessed, the bottom of said recesses being inclined, (7) a lever having inclined portions which engage the recesses and conform to the shape thereof, (8) a centrifugally-movable weighted member, and (9) means intermediate the weighted member and the reel whereby the weighted member may be rotated and pressed against the lever for the purpose of expanding the brake-shoes and pressing them against the fixed ring positioned about the shaft.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

Claim 7 calls for a frame, a shaft carried thereby, a reel journaled upon the shaft but not for a spring-actuated reel, a cable around said. reel but not a cable secured to and winding about the reel, a ring about the shaft, a centrifugally-weighted member, semicircular brake-shoes. with slotted ends instead of semicircular brake-shoes having corresponding ends recessed, a lever adapted to engage the slotted ends of said shoes to expand the same, instead of a lever having inclined portions engaging the recesses, also a rotatable collar and gear connections between the collar and the reel, and also means carried by the weighted member for making contact with the lever so that the action of the lever upon the brake-shoes when actuated by the weighted member will expand the brake-shoes as they are rotated.

The cable secured to a reel and winding about it may be quite different from a cable around a reel. A reel journaled upon a shaft is different from a spring-actuated reel journaled upon a shaft.

Turning to the specifications, I fail to find anything which indicates that Sharp had in mind any reel other than the spring-actuated reel. A spring-actuated reel is what he describes, and he speaks more than once of the winding and unwinding thereof and of the rewinding of the cable on the reel.

The operation of this device is substantially as follows: The frame may be attached to the walls of a room. One end of the cable is attached to the reel, and the cable is wound up thereon. The free end of the cable has means for attachment to the body of a person who may get outside the building and let himself down towards the ground without other support than the cable and the friction created by the contact of the brake-shoes with the fixed ring positioned about the shaft. As the person begins to descend, the cable is unwound from the reel, which rapidly revolves and sets in motion gearing which causes the weighted member to rapidly revolve, and the rapid motion tends to throw the weight away from the center, and this brings a flange of the weighted member against the end of the lever not engaged with the semicircular brake-shoes, and the pressure upon the lever engaged at the other end with the brake-shoes in the manner described pries the ends of the brake-shoes apart, one in one direction and the other in the opposite direction, against the inner surface of the fixed ring positioned about the shaft, creating thereby friction of the brake-shoes in contact with the ring, which retards the revolution of the reel weight and brake-shoes and correspondingly retards. or controls the descent of the person attached to the free end of the cable. The device is operative and useful, and is an improvement upon any device of the kind of the prior art shown in the proofs. There is improvement in the general construction of this device and in the arrangement of the parts. There is a new mode of operation in one respect, viz., the manner of expanding the brake-shoes and the means for doing it. Otherwise the device is old and devoid of novelty. I think, on the whole, patentable invention is disclosed, and so hold. As Sharp was an improver in this field of invention and not a pioneer, his claims must be limited accordingly.

March 11, 1902, Sharp took out letters patent No. 695,001, for fire

escape, which, so far as I can see, were, except in arrangement and mere change in form of parts, with some added details of construction, a duplication of the prior art. But this is not material in the aspect of the case now being considered. That device was not compact. In the specifications of the patent in suit Sharp says:

"This invention relates to new and useful improvements in fire-escapes; and the object of the invention is to generally improve upon and render more efficient and simple this class of inventions, and in the present invention it has been my aim to improve upon my invention covered by letters patent in the United States, No. 695,001.”

In making his alleged improvements he introduced no new element whatever. Taking them one by one, we find the frame in several prior patents; also the shaft carried thereby; the reel journaled upon the shaft, and a cable secured to the reel and winding about it, in Johnson, No. 286,306, of October 9, 1883; the same, spring-actuated, in Hill, No. 388,491, of August 28, 1888; and a cord or rope or cable simply passing over a drum or reel, but not winding up thereon, is shown in Tapley, No. 139,484, of January 3, 1873. A fixed ring positioned about the shaft and semicircular brake-shoes and levers engaging the brake-shoes and centrifugally-movable weighted members and means for rotating the said member, and throwing or pressing it against the lever so as to actuate it and thereby press the brake-shoes against the fixed ring, are shown in the following: Tapley, No. 139,484, which has the ring and the weights so shaped that they act as a brake-shoe; Johnson, No. 286,306, of October, 1883, which has weights and semicircular brake-shoes which are pressed by the weights against a flange or device in the reel; in Hill, No. 388,491, of August, 1888, which has a frame, a winding drum, spring-actuated, with cord or cable. wound thereon, a fixed ring positioned about a shaft, semicircular brake-shoes, levers actuated by centrifugally and movable weighted members so as to press the brakes against the fixed ring when the device is in motion, and means intermediate the weighted member and the reel whereby said member may be rotated and pressed against the said levers at one end so as to press the other end thereof against the brake-shoes and press them against the fixed ring and thereby produce the friction. In Hill, the weighted member with weights, levers, etc., is constructed as follows:

"a indicates a spider fixed to the shaft, Y, and rotating within the flange disk, Z. This spider carries upon it two sets of pivoted levers, b, c, which are exactly alike and are placed opposite each other on the spider. The lever, c, is provided with a brake-shoe, d, and with a spring, e, seated upon a lug, f, projecting from the spider and bearing radially outward against the lever, c, and always tending to keep the brake-shoe out of contact with the flange, g. The long arm of the lever, b, is weighted at h, so that when the spider is rotated centrifugal force tends to throw it outward tangentially, the effect of which is to instantly force the brake-shoe against the inner surface of the flange, g. These parts are so adjusted that as soon as the rotation of the winding-drum reaches a certain moderate degree of rapidity at which it will be desirable to check the speed of lowering, the brake-shoes will then instantly be forced against the inner surface of the flange, g, which checks the speed and secures perfect safety lowering."

Here the weighted arm or lever, b, has prongs at the end where it engages with the end of lever, c, which is recessed to permit such en