John W. Munday, Edmund Adcock, and Henry M. Post, for appellant. M. B. Philipp, T. W. Bakewell, and E. A. Angell, for appellee. Before LURTON, Circuit Judge, and SEVERENS and CLARK, District Judges. LURTON, Circuit Judge, after making the foregoing statement of facts, delivered the opinion of the court. The whole subject of car couplers has long been a fruitful field of invention, and no less than 6,500 patents have been issued for improvements in this single device. The particular type of coupler to which both those in contest belong is that established by the automatic vertical plane coupler patented to Eli H. Janney, April 29, 1873, No. 138,405. This was followed by patent No. 156,024 of October 20, 1874, to the same patentee, for an improvement upon his original device, and another in 1879, and still another in 1882, and on April 2, 1878, by a reissue of his original patent, being reissue No. 8,153. The narrowness of the field for further invention in couplers of the type now in question will not escape observation if we examine the devices covered by Janney's patents. For this purpose we reproduce Figs. 1 and 4 from the drawings of the patent to Janney of April 29, 1873: Fig. 1 represents a top plan view of two opposing couplers about to make a coupling, one open, the other closed. Fig. 4 is a transverse sectional elevation, showing the tail of the coupler-head locked within the recess of the draw-head. It will be seen that this device presents the forked draw-head, which is one element in each of the claims of the Lorraine and Aubin patent here involved. One arm of this draw-head acts as a buffer, and also as a guard to prevent uncoupling from lateral motion of the cars; to the other a coupling-head or knuckle is pivoted which swings horizontally on the pivot in opening or closing to couple or uncouple, with a twin knuckle upon an opposing drawhead. The draw-head and coupling-head of Janney's improvement of 1879 is shown by Figs. 1 and 2, from the drawings of patent No. 212,703: The form reached by his improvements patented February 21, 1882, No. 254,093, is shown by Figs. 1, 3, and 5 of the drawings: This coupler is similar in construction to those of Janney's prior patents, with the exception that it has an automatic vertically moving gravity locking pin. It is guided in holes at the top and bottom walls of the draw-head, and moves freely in a vertical direction. The locking device in all the Janney patents, prior to 1882, is a spring latch engaging the tail or inner arm of the coupler-head. But this patent of February 21, 1882, is for a locking device which consists in a locking pin provided with an inclined face and a shoulder for holding the pin in a raised position. This pin extends downward through a hole in the top of the draw-head, and drops behind the inner arm of the knuckle-head when open, and in front of it when closed, the inner arm of the knuckle being also provided with a double inclined face so as to push the pin up until the knuckle passes under, which then drops by gravity in front of the inner arm, and thus holds it in a locked position. In Figs. 3 and 5, shown above, this locking pin is shown with a spring, b2, but it is intended to be used, and is used, without such spring, the specification stating, "It may be provided with a spring." In 1887 the Master Car Builders' Association adopted a standard shape of a vertical plane coupler, which was substantially that of the Janney coupler, and fixed upon gauges to decide the limits allowed in variation of sizes. These gauges fix the dimensions of the coupler-head or knuckle, and the size and contour of space between knuckle and draw-bar. The size and shape of the tail of knuckle, method of locking, point of pivoting knuckle-head, and location of locking pin, were left to discretion of the respective manufacturers of couplers. Couplers built on these lines are known as couplers of the M. C. B. type, and to this type both the contending couplers belong. It follows, from what has already been said, that couplers of the class to which the Lorraine and Aubin device belong were old, and that the most which can be said for the patent in suit is that it is for an improvement upon other automatic gravity locking couplers, accomplishing the same general result, in much the same way. In summing up the argument for the patent in suit, counsel for appellant in their brief say: "Lorraine and Aubin were the first to embody in a single coupler all the advantages, without any of the disadvantages, of the couplers of the old art." "This [say appellant's counsel] they accomplish by a new combination of old parts. And they were enabled to produce this new combination by reason of having invented a single new part,-the centrally pivoted-shaped knuckle,which was the key to the solution, and enabled the parts to go together in such manner that all of the numerous desirable results or features of advantage could be embodied without interference with each other." Continuing, they say: "The primary combination to which all of this is due, and which is included in all the claims of the patent, consists in the union of the following parts in a single coupler: (1) The Master Car Builders' forked draw-head; (2) The centrally pivoted-shaped knuckle; (3) The pivot pin; (4) The automatic, riding, gravity actuated locking pin.” In respect to the defendant's coupler, the same counsel, in conclusion, say that "it embodies this primary combination and in its mode of operation, and produces all of its results and embodies all of its advantages, and is therefore an infringement of the principal claims of the patent in suit." It must be conceded that, if the patent in suit is such as to entitle it to a liberal construction and a broad application of the rule as to equivalents, the device of the defendant company is an unblushing infringement. But this was not the view entertained by the learned trial judge, who, after an elaborate review of the prior art, reached the conclusion that the patent to Lorraine and Aubin could only be sustained by confining it to the precise form shown in the specifications and delineated in the drawings of the patent, and that when thus limited the Tower device did not infringe. This claim to the "centrally pivoted -shaped knuckle," as a "new part" "invented" by Lorraine and Aubin, is not the subject of any separate or distinct claim of the patent. The knuckle described is only claimed as one element in a combination, and the combination is not infringed unless all of the elements of the combination are found in the infringing device. The invention claimed by the patentees is the combination of the elements mentioned in the several claims of the patent. This implies that all the rest is old, or, at least, that the patentee does not, so far as this patent is concerned, claim the elements separately. Planter Patent, 23 Wall. 181-224. But it cannot be admitted that a-shaped knuckle is new. If this particular shape or form of the coupling-head be regarded as a limitation and as differentiating this element from the L-shaped knuckle of Janney, or the S-shaped knuckle of Tower or Dowling, it is not to be distinguished in form from the coupling-head of the patent to Hien of July 26, 1881, No. 244,724, nor Ferguson, No. 361,867, nor from the same element in the Kling patent of April 12, 1887, No. 361,165, which issued upon an application prior to the application of Lorraine and Aubin. For the purpose of showing this conformity in form or shape of the prior coupling knuckles of the old art, we here set out Figs. 2 and 3 of the drawings of the patent to Hien for an automatic car coupler: FIG. 2. FIG. 3. А We also show below Figs. 1 and 2 from the drawings of the pat ent to Kling. Kling calls this knuckle a coupling-hook, and describes it as "my improved coupling-hook, I," which he says "is in general form similar to the ordinary ones in present use, and is provided with the hinge arm, i, and front vertical position or head. i, which is adapted to engage with the head of a similar hook to couple them as usual." |