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with a judgment dismissing the bill. Of course, this does not relate to matters necessary to good pleading when specifically pointed out by the demurrer. Taking the bill together, it is impossible to conceive that the complainant had any intention on the question of priority except to assert it in his own behalf and to frame his allegations accordingly; and therefore, for the reasons we have stated, we are justified in entering a judgment which will postpone that question to the hearing on the merits, unless, having in view their right to a specific date of invention, on subsequent proceedings in the Circuit Court, and on proper terms, the respondents make the issue more specifically than they have so far done.

Much has been said to us in reference to the reduction of an invention to practice by the filing of an application for a patent therefor, and in some manner the parties seem to have impressed the learned judge of the Circuit Court with the thought that that involved the more important issue in the case. Consequently his opinion apparently relies on a proposition that the allegation in the bill of the date of Prindle's invention must be taken to state its reduction to practice by the application of June 6th. It is true that there is no patentable invention in a mere mental operation, and that the general rule is that, in order to constitute a patentable invention, the mental operation must in some way be put into concrete form. Prof. Robinson's work on Patents (volume 1, 178) well says:

“No mental operation, however definite and valuable may be its result, is a complete inventive act. That which rests in thought only as a mere theory or intellectual conception can never be a means producing physical effects."

It is also true that the Patent Office and the courts, where no date is proven except that of the application for the patent, give the patentee the benefit of that date where his application, specifications, and claims explain what, if constructed in conformity therewith, would constitute a workable and useful machine. It is also true that it is sometimes said, as was said by the parties in this case, and also by Mr. Walker in his work on Patents (4th Ed. § 141b) that such an application is a "constructive reduction to practice.” The use of such expressions in connection with an application seems to be an unnecessary paraphrase, because an application of the character which we have described is of itself a positive and absolute exhibition of everything which the statute requires to constitute an invention. It is not necessary in order to complete an invention that there be a machine constructed, or even a model. The invention may be disclosed by the application sufficiently to entitle the patentee to priority as of the date of the application, or it may have been disclosed by a machine or model, or in some other concrete manner, a long time before the application was filed, so that the patent whenever applied for would go back to that disclosure. Consequently, a bill which states the date of an application for a patent is not to be held to state that the invention was then first completed, except in the special case, which is not an unusual one, that nothing is alleged showing invention prior thereto. Under some circumstances, the court is then compelled to accept that date; but, as further said by Prof. Robinson in connection with the extract we

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have already made from his work, a statement which is also clearly true, "an invention does not exist until the generated idea has been reduced to practice.” Therefore, when a bill alleges an invention, it covers the fact of reduction to practice, whatever that may be, without any further allegation in reference thereto. Therefore the bill alleges priority of invention by Prindle, though in an irregular manner.

We must reverse the decree of the Circuit Court; but, as the case will go back to that court for further proceedings, we do not intend by such reversal to bar the respondents from securing the advantage of a proper allegation of the date of the complainant's invention if they are of the opinion that they can obtain any advantage therefrom. Therefore, unless the bill is amended, the Circuit Court may, on a demurrer, allowed on proper terms and specifically pointing out the defect in form which we have discussed, or other defects in form, compel the complainant to perfect his bill in whatever particulars it should be perfected. Although a proper allegation of the time of invention is sometimes very useful for those sued as infringers, yet it is so often unimportant, and, under the circumstances of this case, the lack of it is so purely formal that the bill should not be dismissed unless the complainant's attention is first brought directly to the point, and an opportunity given him to meet it by amendment or otherwise.

The decree of the Circuit Court is reversed, and the case is remanded to that court with directions to proceed in conformity with law; and the appellant recovers his costs of appeal.

MAUNULA V. SUNELL.

(Circuit Court, D. Oregon. August 12, 1907.)

No. 3,046.

1. PATENTS-INVENTION AND INFRINGEMENT-NET LEADER.

The Haataja patent No. 587,308 for a net leader covers a new combination of old elements, which produces an old result in a more facile, economical, and efficient way, and discloses patentable invention as contradis

tinguished from mechanical skill, also held infringed. 2. SAME-EVIDENCE OF INVENTION.

The fact that there existed a mechanical requirement for a machine to do a certain thing for a long time which was first supplied by the machine

of a patent is highly evidentiary of inventive application and genius. 3. SAME-INFRINGEMENT-USE OF EQUIVALENT PARTS.

The inventor of a combination is himself entitled to apply and adapt the equivalents of the parts to his own use, and his patent covers any alterations which are formal and adapted to perform the same function in substantially the same manner as fully and effectively as the parts described.

[Ed. Note.For cases in point, see Cent. Dig. vol. 38, Patents, 8 386.] 4. SAME-EQUIVALENTS-IMPROVEMENT PATENT.

If a patented improvement is of great utility and denotes a marked and signal advance in the state of the art, although not entitled to be denominated a pioneer, the law accords to the inventor a larger range of equivalents than it does where the improvement is of lesser or minor importance.

[Ed. Note. For cases in point, see Cent. Dig. vol. 38, Patents, $ 386.]

5. SAME-CONSTRUCTION OF CLAIMS-ERROR IN DESCRIPTION,

Under the rule that language of a patent should be so construed as to save rather than destroy it, a claim in a patent of “rotatably mounted bars

substantially as described” as an element of a combination is not void because the specification and drawings show a rotatable and a fixed bar, there being no doubt as to the thing intended.

In Equity. Suit for infringement of letters patent No. 587,308 for a net leader granted to Epraham Haataja August 3, 1897.. On final hearing.

On March 18, 1884, Erik Maunula, the plaintiff, was granted letters patent upon a machine for casting leads upon fish-net lines. In its construction it consisted of an extended arm attached by one end to a table. On the under side of the arm was a series of half-molds; on the upper side a groove and holes extending through into the cavities formed by the half-molds. Within the groove was a slide, having a trough along the top and holes drilled through to correspond with the holes in the groove. These holes were chamfered from the top so as to form sharp angles with the lower edge of the slide. An extension of the slide formed a handle for convenient manipulation. Attached to the table underneath by a pivot was a reel-shaft extending out even with the arm above. Upon this shaft was constructed a reel with four arms, and upon the outer sides of two of these arms was formed a series of halfmolds corresponding with the half-molds upon the stationary arm; the reel being so adapted that these half-molds were brought into complement with those upon the extended arm, thus forming when in position a series of complete molds. The other two arms of the reel were adjustable so that they could be lengthened or shortened as desired. The cord to be leaded was wound around the reel, passing through the half-molds upon the two arms thereof. One mold-arm was then brought into juxtaposition with the stationary arm extending from the top of the table, and by means of certain devices the two half-mold arms were clamped securely together. When in this position the molten lead was poured into the groove in the slide, and, running through the apertures into the molds, formed sinkers around the cord for weighting it down. By drawing the slide outwardly the metal that remained in the holes was cut off. The clamps were then released, and, the reel being rotated, the opposite arm was adjusted with the one extending above the table in the same manner, and the cord leaded as before. When this was done, a new length of cord was wound upon the reel, and the same process repeated, and so on. The distance between the leads was regulated by extending or shortening the other two arms of the reel, and thus was obtained uniformity in leading the cord.

On August 3, 1897, Epraham Haataja secured letters patent for a new and useful improvement on net-leaders. The device consists of a base rectangular in form, in the center of which is secured a mold-block containing in the top thereof a series of half-molds, elliptical in form. Attached to the mold-block on either side are removable closure-strips, provided with openings corresponding with the half-molds. On the end of this mold-block is hinged a similar block, having a series of half-molds underneath complementary to those contained in the stationary block, provided with corresponding closure-strips, so that when the blocks are brought together they form a series of complete molds for casting leads upon the cord. The closure-strips are removable, with a view to regulating the size of aperture in the molds to suit the size of the cord desired to be leaded. Along the top of the upper or hinged mold-block is a groove, concave in form, containing holes entering the half-molds from the tops thereof. Within this groove is arranged a slide, containing a trough, through which there are apertures corresponding with those in the groove; the apertures being chamfered from above so as to form a sharp cutting edge at the bottom of the trough. Attached to the slide at the outer end is a crank, provided with a handle, by means of which the slide is rotated with reference to the groove; the crank being so contrived as to limit the range of rotation Guides are attached to the base at either end of the mold-block and at right angles thereto, extending upon both sides, and upon these guides are annexed bars parallel with the mold-block, so provided with slides as to be movable upon the guides, by means whereof the distance between the moldblocks and bars is regulated. The slides are provided with thumbscrews for making the bars fast upon the guides. The bars are provided with pins, curved outwardly, the pins upon each bar corresponding to half the number of the molds in the blocks; one of the bars being rotatably and the other fixedly attached. The rotatable bar is provided with a handle, standing at right angles with it, which is secured by a latch-hook to render the bar stationary as de sired. The process of leading the line or cord is to attach it to a pin on one of the bars, pass it through the half-mold in the stationary mold-block to and around a pin on the opposite bar, and through another half-mold, and so

When all the molds are thus engaged, the upper or hinged mold-block is closed down upon the lower and clamped at the end, and the molding is done as in the Maunula machine. The leads are cut, however, by a rotation of the trough slide by means of the crank, in place of a longitudinal movement by drawing the slide outward. Maunula became the owner by assignment of these letters patent, and of later years has been manufacturing and selling machines differing from the one described by the letters patent in particular as follows: The mold-blocks are so constructed as to form perfect molds without the closure-strips. The upper block is attached to the lower at the end by a stem, consisting of a round bolt extending through the lower block; the upper block being made to hinge on the stem, so that such block may be raised at the outer end by means of the hinge, and swung around laterally by means of the bolt, and laid out of the way while arranging the cord through the molds and detaching it again. The guides consist of thin pieces of iron, those at one end being notched from the top at short intervals, and those at the other containing holes corresponding with the notches. The bars are rotatably constructed, with pin extensions upon either end, one of which is adjusted in a hole of the guide upon one side and the other in a notch upon the other side; such bars being provided with handles, which in turn are secured by latch-hooks. The upper mold-block is provided with a groove and a slide, with a trough similar to that in the Maunula machine, but with an additional contrivance at the hinged end in the way of a lever for forcing out the slide in cutting the lead. The interstices between the leads upon the cord are regulated by moving the bars farther from or nearer the mold-blocks, by means of the holes and notches in the guide.

The pleadings and proof show that the defendant leased one of these machines from the plaintiff, and while having it in his possession made a model therefrom, and had constructed a machine of identical pattern, save that the pins in the bars used for arranging the cord with reference to the molds are curved backwards, paralleling the bars instead of lateral thereto, and claims the right to use such machine and to manufacture others, and to put them upon the market for profit. The purpose of this suit is to enjoin the defendant from manufacturing and using such machines, on the ground that they infringe the Haataja patent.

Fulton Bros., for plaintiff.
Williams, Wood & Linthicum and T. J. Geisler, for defendant.

WOLVERTON, District Judge (after stating the facts as above). The defendant has interposed four defenses to the bill of complaint, which, briefly stated, are as follows: First, that the Maunula patent anticipates the Haataja invention, and therefore that the patent for the latter is void ; second, that defendant's machine does not comprise all the elements of the combination as specified in the alleged Haataja letters patent, and therefore that defendant does not infringe such letters patent; third, that the third claim of the Haataja letters patent sets forth a subcombination of parts not supported by anything contained in the specifications; and, fourth, that defendant's machine does not infringe the Haataja letters patent, because it comprises an element or ingredient not common to the latter.

I think it may be safely premised that the Maunula machine exhibited novelty and invention. This becomes at once apparent by a consideration of the state of the art prior to the time when the invention was evolved. As disclosed by the testimony, the manner of leading cord prior to that time was to wrap the lead about it and make it secure by hand, no other method being known to the art. Were it not, therefore, for this invention, the patent for which has become extinct because of its existence for more than 17 years, there could be no question that the Haataja patent possesses the quality of novelty. So we come naturally to the question whether the Maunula letters patent anticipate the Haataja machine.

The claim of the plaintiff is that the Haataja letters patent cover a combination of old elements, producing an old result, but in a more facile, economical, and efficient way; therefore, that the device is new, and the result of inventive genius and power. If the machine is of this character, it was patentable. The rule is comprehensively stated by Sanborn, Circuit Judge, sitting in the Court of Appeals, Eighth Circuit, as follows:

"The second claim of the first patent to Hien is for a combination of old mechanical elements in a new way. It is not for new elements, but for a new method of combining old elements; and a new combination of old elements, whereby a new and useful result is produced, or an old result is attained in a more facile, economical, and efficient way, may be protected by patent as securely as a new machine or composition of matter." National Hollow B. B. Co. v. Interchangeable B. B. Co., 106 Fed. 693, 706, 45 C. C. A. 544.

And recognized by Morrow, Circuit Judge, in the case of Moore v. Schaw (C. C.) 118 Fed. 602, 606, which affords apt illustration as well:

"All of these results appear to have been accomplished by the complainant's device, and in the art of riveting it is certainly a new and useful result to produce a device which will accomplish several times as much work in a given time as any mechanism before in use, and requiring less expensive labor to operate it; and the adaptation of old elements to this new use required, in my judgment, the exercise of the inventive faculty.”

See, also, Seymour v. Osborne, 11 Wall. 516, 20 L. Ed. 33; Rees v. Gould, 15 Wall. 187, 21 L. Ed. 39; Ide v. Trorlicht, Duncker & Renard Carpet Co., 115 Fed. 137, 53 C. C. A. 341.

That the combination is new is manifest from the different arrangement of the mold-blocks, the substitution of the guides and bars for the reel, and the wide dissimilarity in the manner of operating the machine. But it is urged that this is not the result of inventive genius, but of mechanical skill only. It is unquestioned that the Haataja machine is of superior utility to that of the Maunula patent. The latter was cumbersome, slow, and tedious of operation. The Haataja machine may be operated with much greater facility, and is productive of largely increased results. It is a fact in evidence that the Maunula machine was scarcely used at all, while, upon the production of the present invention, its utility was at once appreciated by the public, and a demand for its manufacture became importunate. While the new

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