Opinion of the Court.

his manufacture infringed in any way upon any right which plaintiffs had to the invention.

The case was heard in the court below upon pleadings and proofs, the court holding that the Augur patent and the Topliff and Ely reissue were good and valid; and that the defendant was guilty of infringement. An injunction was allowed and the case was referred to a master to take an account of profits and damages. The master reported the sum of $8480.54 to be due the plaintiffs from the defendant as damages for the infringement, and a final decree was entered for that amount, from which both parties appealed to this court.

Mr. Henry S. Sherman for Topliff and another.

Mr. W. W. Boynton (with whom were Mr. John C. Hale. and Mr. M. D. Leggett on the brief) for Topliff.

MR. JUSTICE BROWN delivered the opinion of the court.

As the court below failed to pass upon the Saladee patent in its decree, and as neither party has assigned this omission as error,.it is unnecessary to take it into consideration upon this appeal. There are really but two questions involved in this case: (1) the validity of the Augur patent, in view of the state of the art; (2) the validity of the Topliff and Ely reissue.

(1) In the Augur patent the device described consists of a rod attached to the rear axle of a side-spring buggy or other vehicle, having two links rigidly attached to the rod, one at each end thereof, upon which the rear ends of such sidesprings are pivoted. The result is that when one spring is depressed, as by a person stepping into the vehicle on one side, the spring upon the other side is also depressed, through the action of the rod connecting the two, so that the body of the vehicle is kept approximately upon a level.

The patents to Stowe of 1868 and to Sexton of 1868 were also for a method of equalizing the action of side-springs by so connecting, as stated in the Stowe patent, "the two sidesprings of a carriage that a weight placed on any portion of the carriage will depress each side equally, and prevent the

Opinion of the Court.

strain to the springs occasioned by the frequent wrenching they are subjected to in getting in and out of the carriage.' But the means for accomplishing this in both cases are so wholly dissimilar to those described in the patents in suit that a comparison can hardly be made of them.

Indeed, the patent to Stringfellow and Surles of 1861 approximates so much more nearly to the patents in suit that it is the only one worthy of serious consideration. If this patent does not anticipate the Augur patent, none of the others do; if it does anticipate it, it is of no consequence whether the others do or not. This patent is for "a novel improvement in hanging carriage-bodies on springs and from C-shaped jacks or supports, whereby the body is allowed a free and easy vibration longitudinally, and it is relieved from sudden and disagreeable jolts and jerks in travelling on rough roads or from the sudden starting of the horse. The parts are also so braced and strengthened that all liability to twist the carriagebody is effectively prevented. The invention consists of a combination of transverse tie-rods with the side-springs, which are hung by shackle-bars or jointed links from C-shaped supports." The patentee further states: "It will thus be seen that the springs DD are suspended in such a manner from the four supports CCC'C' that the body of the carriage, which is mounted on said springs, will be allowed to have a free, swinging motion backwards or forwards, and in consequence of the springs being hung by the shackle-bars EEEE the springs will also have an upward movement. In uniting the

shackle-bars to the ends of the springs DD and the supports CCC'C' two tie-bars, GG, with forked ends, one of which is shown in Fig. 2 of the drawing, are used for the purpose of bracing the supports CC', and also the ends of the springs DD, so as to prevent the swaying of the carriage-body from twisting or bending the supports CC' laterally." The claim was for "the transverse ties GG, arranged and operated substantially as and for the purposes specified."

If there be anything in this patent which anticipates the connecting-rods of the Augur device it is the transverse tiebars GG, upon which the springs are hung, which the specifi

Opinion of the Court.

cation states are used for bracing the supports CC' and also the ends of the springs DD, so as to prevent the swaying of the carriage-body from twisting or bending the supports CC' laterally. An inspection of the models of this patent put in evidence shows at once that the object of these tie-bars is not an equalization of the pressure upon the springs, but to secure an equality in the backward and forward swinging movement in the body of the vehicle. Indeed, this was obviously necessary, as the patentee states, to prevent the body of the carriage and the supports CC' from being twisted, the entire object of the patent being to secure a free and easy vibration longitudinally. It is true that one of the models of the patent put in evidence (Exhibit M), does, by its peculiar construction in shortening the links and strengthening and stiffening the entire structure, show an equalization of the pressure upon the springs, but it is accomplished by sacrificing the swinging movement backward and forward, which it was the object of the patent secure. The duplicate of the model from the Patent Office contains no suggestion of this kind, nor do the other models of the same patent offered in evidence. While it is possible that the Stringfellow and Surles patent might, by a slight modification, be made to perform the function of equalizing the springs which it was the object of the Augur patent to secure, that was evidently not in the mind of the patentees, and the patent is inoperative for that purpose. Their device evidently approached very near the idea of an equalizer; but this idea did not apparently dawn upon them, nor was there anything in their patent which would have suggested it to a mechanic of ordinary intelligence, unless he were examining it for that purpose. It is not sufficient to constitute an anticipation that the device relied upon might, by modification, be made to accomplish the function performed by the patent in question, if it were not designed by its maker, nor adapted, nor actually used, for the performance of such functions.

(2) The Topliff and Ely patent is claimed to be fully anticipated by the Augur device. In their specification the patentees admit that the connecting-rods placed at right angles across the front and rear of the running gear of vehicles, and

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hinged to the front bolster and rear axle, are an old device. The better to illustrate the distinction between their own invention and all others pertaining to the use of connectingrods, they cite several patents, among which is that of Augur, of which they state as follows:

"In this patent side-springs are used, the front ends of which are hinged upon fixed and rigid standards secured upon the top of the front bolster, and where the front ends of the spring are firmly held in a central position over said bolster, while the rear ends are hinged to hinges secured to the outer ends of a single connecting-rod placed over the top of the rear axle in such a manner that, as the springs are lengthened by depression, a corresponding rotation is imparted to the connecting-rod. In this case provision for the lengthening of the springs when depressed or in motion is only made for the rear ends of the springs, the front ends being firmly held over the centre of the bolster; and hence, as the load upon the springs is increased, and as only their rear ends, in combination with said links and connecting-rod, are permitted to accommodate their vibration, the rear end of the body is caused to have a backward tipping motion- that is, the back end of the body is thrown lower than the front end, when the springs are depressed to their full capacity which is an objectionable feature in this device for equalizing the action of springs; besides, as only the rear ends of the springs are allowed to act, that easy and natural motion of the springs which is only had by allowing both ends to act freely is in a great measure lost.

"The radical difference of our invention from each and all the cases above cited is, first, in the construction of the connecting-rod," (which is in reality precisely the same as that employed by Augur;) "and, secondly, in suspending both ends of the springs upon separate connecting-rods, and thus allow both ends of the springs to act freely and in harmony with their vibrating motion, to which is added the other important advantage, viz.: that arrangement of connecting-rods admits of their application to side-spring vehicles of the ordinary kind now in use as readily as to those built expressly for the purpose an advantage not attained by any other pre

Opinion of the Court.

viously known combination of connecting-rods with the springs or bodies of vehicles."

It is quite evident from an examination of this patent that "the connecting-rods BB', provided with arms at their ends," are precisely the same in structure, design and operation as "the pivoted links with a rod connecting the same," described in the second claim of the Augur patent; and that the only substantial difference in the construction of the two devices is in the duplication of this rod by applying it to the front bolster as well as to the rear axle, and thereby enabling it to be applied to side-spring vehicles of the ordinary kind, as readily as to those built expressly for the purpose. It is true there are introduced into the claims of the Topliff and Ely patent the half-elliptic springs AA', which, by means of the connectingrods, are caused to yield in unison with each other; but the same springs are evidently to be read into the Augur patent, since the whole object of the device, as stated by him, is to equalize the action of the springs by compelling both links to move in unison. If this patent differed from the other merely in duplicating the rod and applying it to the front bolster as well as to the rear axle, it is conceded that it would not, under the cases of Dunbar v. Myers, 94 U. S. 187, 195, and Slawson V. Grand Street Railroad Co., 107 U. S. 649, 653, involve invention.

But there is a further distinction between the two devices which ought not to be overlooked. Under the Augur patent, the front ends of the springs are supported upon standards rising from the bolster, and the rear ends upon the links of the connecting-rod, rising perpendicularly above the rear axle. In other words, the links are turned upward, instead of down. This arrangement would evidently be inoperative if the springs were hung at both ends upon links, so placed, since the body of the vehicle would fall down at once upon the axles. In the Topliff and Ely patent, to obviate this, and to enable the device to be applied at both ends of the springs, the links are turned horizontally, or somewhat dependent, so that the springs can rest upon them at both ends, and thus secure a more perfect equalization. Trifling as this deviation seems to