In this drawing, A represents the receiving or supply side of the valve, and A' the discharge or delivery side; C represents the valve, and B the valve seat; E represents the cylinder, and J the piston which works in the cylinder and is attached to the valve; J' represents the restricted orifice or passage leading from the cylinder to the delivery side of the valve. The fit between the piston and cylinder is loose, to permit a free movement, and also because a leak in the joint is rather advantageous than detrimental. For the purposes of this case it is unnecessary to refer to the other parts.

Only the first claim is in issue:

"(1) The combination of a main conduit, a check valve situated therein, a cylinder and piston, the moving member of which is attached to the check valve and is exposed externally to the pressure in the conduit on the delivery side of the check valve, a passage or passages leading from the inside of the cylinder to the main conduit also on the delivery side of the check valve."

This claim includes as elements the cylinder, the movable piston attached to the valve, and the passage leading from the inside of the cylinder to the delivery side of the valve. The essence of the invention covered by this claim resides largely in the passage leading from the cylinder to the delivery chamber, which prevents any momentary increase of pressure on the delivery side from closing the valve immediately and suddenly.

In a check valve, when the valve is open, the pressure of steam on the supply side is greater than that on the delivery side. If now, for any reason, the pressure on both sides of the valve becomes equal, or the pressure on the delivery side become greater than on the supply side, the valve will close quickly, with a tendency to hammer. The Schutte valve is so organized that the closing movement of the valve will be governed by the pressure in the cylinder on the upper side of the piston, and any momentary increase of pressure in the delivery chamber will not immediately act on the valve, but such pressure must pass from the delivery chamber through the narrow orifice into the cylinder and above the piston before it becomes effective in closing the valve. By this arrangement Schutte causes the valve to close slowly, and thus overcomes the tendency of the valve to hammer. The Schutte invention has proved to be practical, and it has continued in commercial. use since the time the patent was issued.

In the prior art the nearest approach to the Schutte invention is the Eynon patent, No. 515,578, dated February 27, 1894. While the Eynon patent shows a cylinder, which is called a "dash pot," a piston, and a passage leading from the delivery side into the cylinder, the construction and arrangement of the parts and their mode of operation are essentially different from the Schutte valve.

The Eynon patent says:

"It will be seen that steam from the chamber, B', enters the stem, D, through the port, G, and escapes therefrom through the port, H, into the dash pot below the piston, F, by which provision the valve, C, may be lifted from its seat and is held balanced, and owing to the steam that may remain in the dash pot below the piston, acting as a cushion, the valve, C, when

lowering, is prevented from forcibly striking its seat, it being noticed that the steam in the dash pot returns through the ports, H, passage, D, and port, G, into the chamber, B'."

In the Eynon organization the steam from the supply side of the valve enters the cylinder on the under side of the piston through ports in the valve stem, and it is the cushioning of this steam on the under side of the piston which prevents the sudden closing of the valve. No such arrangement or mode of operation is found in the Schutte patent. On the question of infringement we have no doubt. The defendants' valve is shown in the Collins patent, No. 688,830. While this valve differs in the form of the piston, and in the relative size of the cylinder and piston, it embodies substantially the same structural features, and its mode of operation is substantially the same, as the Schutte valve. The defendants' valve has on its delivery side a cylinder and a piston of the plunger form, which is connected with the valve, and which works in the open end of the cylinder. It has also a small passage leading from the inside of the cylinder to the delivery chamber, which admits of a relatively slow flow of steam, with the result that the pressure in the cylinder will not respond immediately to any increase of pressure on the delivery side, but only gradually, and hence the valve will close slowly. It is manifest, therefore, that the defendants' valve contains the invention shown and described in claim 1 of the Schutte patent in suit.`

The decree of the Circuit Court is affirmed, and the appellee recovers its costs of appeal.

NATIONAL MALLEABLE CASTINGS CO. v. BUCKEYE MALLEABLE IRON & COUPLER CO. et al.

(Circuit Court of Appeals, Sixth Circuit. July 7, 1909.)

No. 1,910.

1. PATENTS (§ 157*)-CONSTRUCTION-PAPER PATENTS.

While the fact that a patented device has never gone into use does not defeat the patent, it warrants an inference against utility, the converse of that which arises from successful commercial use, and may justify a narrow construction of the patent.

[Ed. Note. For other cases, see Patents, Dec. Dig. § 157.*]

2. PATENTS (§ 328*)-INFRINGEMENT-CAR COUPLER.

The Deitz patent, No. 576,094, for a car coupler, involves invention and is valid, but is an improvement patent in a crowded art and must be narrowly construed. As so construed, held not infringed.

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

Appeal from the Circuit Court of the United States for the Southern District, of Ohio.

This is a bill to restrain infringement of the Henry Deitz patent, No. 576,094, issued February 2, 1897, for an improvement in car couplers. The alleged infringing device is known as the "Major coupler," and is made under three patents to J. Timms, being Nos. 679,145, 685,802, and 734,999.

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

The Deitz patent cannot be well explained without the drawings and their descriptions, as shown in the patent. We therefore set out same below.

Figure 1 is plan sectional view through the coupler. Fig. 2 is a vertical sectional view on line 22 of Fig. 1. Fig. 3 is an end vertical sectional view on line 33 of Figs. 1 and 2. Fig. 4 is a perspective view of the lower end of the locking-pin. Fig. 5 is a perspective view of the end of the knuckle which comes into engagement with the locking-pin. Fig. 6 is a similar plan view to that of Fig. 1, showing the locking-pin in a different position. Fig. 7 is a similar view to that of Fig. 2, showing the locking-pin in a different position. Fig. 8 is a similar view to that of Fig. 3 with the locking-pin in the position shown in Figs. 6 and 7.

In the drawings, A designates the ordinary main cast piece of car couplers of this class, and B designates the knuckle thereof.

D is the locking-pin, which is made in a manner to serve the purpose of automatically locking the knuckle and also to throw open the knuckle when the pin is lifted, as will be described. This pin, D, has a slot, d, in its forward edge (shown by the dotted lines in Figs. 3, 7, and 8), which engages a projection, E, in the front wall of the main casting. This slot, d, is inclined and offset at its lower end, as is shown in Figs. 3 and 8, for the purpose of throwing the lower end of the pin at an incline when the pin is lifted, whereby the shoulder D' of the pin engages a lip B' of the knuckle end, as is shown in Figs. 6, 7, and 8. The purpose of this is to provide that when the locking-pin is lifted and let fall back again before the cars are pulled apart, permitting the knuckle to be opened, the pin will fall back and rest upon the end of the knuckle and ride thereon until the knuckle is pulled open, whereby the pin rides off the knuckle end and drops in its normal position ready to couple automatically. The pin when down in its normal position, locking the knuckle, is shown in Fig. 2, and when in this position and the knuckle is open and a coupling is made, the pin swings back, to free the end of the knuckle, to the position of the dotted lines in Fig. 2, the lip L of the pin engaging the projection P of the main casting, and thereby acting as a center about which the pin revolves when automatically coupling, and when the knuckle is home the pin swings back to its normal vertical position between the end of the knuckle and the side wall of the casting, thereby locking the knuckle.

On the lower end of the pin D, there is a projection, D2, having a lip, D3, and the outer end of the knuckle is cut away on an incline, as is shown at B2, which leaves an inclined way, B3, and upon the lifting of the pin forcibly the inclined slot, d, throws the lip, D3, into engagement with the inclined way. B3 (see Figs. 7 and 8), whereby the further upward movement of the pin, the lip, D3, engaging the way B3 by virtue of the incline, forces the knuckle end outward and open in the position of the dotted lines in Fig. 6, provided, however, the knuckle is free to open, not being in contact with any other coupler. The purpose of this means of throwing open the knuckle is to avoid the necessity of the brakeman entering between the cars at any time for any purpose when coupling, and, should he find the knuckle closed when he desires to couple, all that he is required to do is to lift the cutting-out lever, thereby lifting the locking-pin, which unlocks the knuckle and throws it open by the vertical movement, as above described, and this means of throwing open the knuckle is secured by the simple addition of the end-projection locking-pin and by the cutting away of a portion of the end of the knuckle, making no new part to the coupler nor adding any additional expense in its construction, which is a great desideratum.

The court below dismissed the bill upon the ground of noninfringement. Complainants have appealed.

T. W. Bakewell and T. B. Kerr, for appellant.

H. A. Seymour and R. S. Taylor, for appellees.

Before LURTON, SEVERENS, and WARRINGTON, Circuit Judges.

LURTON, Circuit Judge (after stating the facts as above). The Deitz coupler is one of a large class of patents for improvements upon the automatic car coupler of the type known as the Master Car

171 F.-54

Builders' Standard. The patentee, in his specifications, says that his invention "has for its object to provide means to throw open the knuckle simultaneously with the movement which unlocks the knuckle, and to do this with the locking-pin in the simplest and most efficient manner."

The first claim, the only one in issue, reads as follows:

"1. The combination with a draw-head, and a horizontally-swinging knuckle pivoted thereto, of a vertically-moving locking-pin normally obstructing the path of said knuckle, but not when partially raised, while the knuckle is closed, is prevented from automatically descending until the knuckle opens, and means whereby completing the raising of the pin throws the knuckle open."

The court below, after a careful review of the history of the whole art and a consideration of this claim, in connection with the specifications and drawings of the patent, reached the conclusion that, while the Deitz patent embodied a patentable improvement, it was a narrow patent, and must be limited to substantially the device shown by the specifications and drawings; and that, thus limited, the Major coupler did not infringe.

After a most careful consideration of the whole matter, we find ourselves in unanimous agreement with this result. The opinion of Judge Sater, who heard the case below, goes so fully into the history of the art, and makes such a satisfactory comparison of the two devices in conflict, that we only deem it necessary to summarize the points upon which we assent to an affirmance of the decree.

The older forms of such coupler stopped with an unlocking device by which the locking-pin might be raised out of the locking position and mechanism by which, when the engagement with the opposing coupler was complete the locking-pin dropped in front of the swinging knuckle to couple the cars together.

Thus, it was old and the subject of hundreds of patents to mechanically lock and unlock by means of a single device operated by a lever and chain from one side of the car; but, before this operation of mechanically coupling could take place, one of the couplers had to be in a wide open position, so that the coupler of the other car could enter the coupling head and become engaged therewith. This required an opening by hand; the brakeman being then, in some conditions, exposed to danger. The next step in the art was therefore to add to the locking and lock-opening mechanism some device by which the pin might be left in a lock-set position before the cars were drawn apart and the knuckle thrown wide open with the operation of pulling the cars apart. What Deitz has done was to incorporate in the old Janney type of automatic couplers devices for lock-setting and knuckle-opening, whereby, he claims, that, without multiplying devices, he has devised a coupler which locks, lock-sets and lock-opens.

By "lock-setting" is meant setting the locking-pin in such position, before the cars are pulled apart, as that it is not in the path of the knuckle and keeping it in that position until they are drawn apart, when it drops into its normal vertical position in the path of the coupling knuckle, ready for another engagement.

The peculiar form of his locking-pin is shown in the drawings and described in that part of his specifications already set out, and need