infringe. The same is true of claims 58, 59, 60, 62, and 63. Of claim 78 it is sufficient to say that the Eldridge horn does not carry. a second edge-folding device, nor does it contain the guide-shoe specified in claim 65. The appellant sues for infringement of the patent numbered 598,567, dated February 18, 1898, issued to Edward P. Holden and Charles M. Brown, so far as that patent relates to a side-seam soldering machine. It is urged that claims 28, 29, 30, 31, and 32 are infringed. All of these claims call for a soldering horn on which the cans rest in the process of soldering their side seams. The specification describes the horn as composed of a cylindrical portion, H (Fig. 7), with three parallel strips supported therefrom to steady the can, provided with a groove in which the seam of the can travels. The invention is not a pioneer patent, nor does it approximate a pioneer invention. Limited as it is by the prior art, we are of the opinion from a careful consideration of its claims that they are not infringed by the appellees. In the Holden and Brown patent the soldering irons rest upon and are carried by the soldering horn. This is not true of the soldering irons of the Eldridge patent. In that patent the uppermost portion of the carrying frame is a strip which performs the function of a soldering iron to solder the inside seam of the cans and wipe the same, while the outside seam is soldered by the soldering irons carried above. The frame would be insufficient to carry the soldering irons of the Holden and Brown patent, and could not be substituted therefor. Instead of resting upon the soldering horn, as in that patent, the soldering irons are carried by cross-pins, which rest upon the bottom of the inside of the casing, 2. The Holden and Brown patent calls for a soldering-pot located in advance of the soldering-iron. It uses wire solder, of which sufficient is cut off to solder each can, and is dropped into the soldering-pot, where it is melted by a special burner directed against it. The appellees use a soldering-pot located above the soldering irons, and it carries molten solder, which is allowed to drip through a tube and through a hole in the forward soldering iron, which hole is placed some distance back from the end of the soldering iron, in order that the front portion thereof may heat the tin before the solder comes in contact therewith. It has no means for soldering or wiping the inside seam. The solder-feed ing mechanism called for in the claims is not found in the appellees' machine. These differences in construction, in view of the prior art, are sufficient to distinguish the Eldridge from the Holden and Brown patent, and to avoid infringement thereof. Involved in the suit is also the patent No. 365,316, issued June 21, 1887, to E. Norton, for a can-cap soldering machine, owned by the appellant. Alluding to the fact that this patent has expired, and no injunction could be granted against its infringement, counsel for the appellant admits that it is of very little moment to either party whether it be sustained or not. In view of that admission, we find it unnecessary to discuss the questions involved, more than to say that we find no error in the conclusion which was reached by the Circuit Court. The decree of the Circuit Court is reversed as to claims 69 and 64 of the Jordan patent, and cause is remanded for further proceedings not inconsistent with this opinion. In other respects it is affirmed. SIPP ELECTRIC & MACHINE CO. v. ATWOOD-MORRISON CO. (Circuit Court of Appeals, Third Circuit, January 2, 1906.) No. 32. 1. PATENTS-PRIOR USE-EVIDENCE TO ESTABLISH. There is no hard and fast rule as to the measure or kind of proof required to establish prior use of a patented device, further than that it must be clear and satisfactory to the judicial mind in each case. [Ed. Note.-For cases in point, see vol. 38, Cent. Dig. Patents, §§ 78, 104.] 2. SAME-SWIFT BRACKET FOR WINDING MACHINES. The Morrison patent, No. 729,084, for an improvement in brackets for supporting swifts or reels in a winding machine which consists in making the bracket adjustable by uniting the arm to the base, by a pivot and clamp, is void for anticipation, prior use, and lack of patentable invention. Appeal from the Circuit Court of the United States for the District of New Jersey. For opinion below, see 136 Fed. 859. Edward Q. Keasbey, for appellant. Before ACHESON, DALLAS, and GRAY, Circuit Judges. GRAY, Circuit Judge. This is an appeal from an interlocutory decree sustaining the validity of the patent, No. 729,084, issued to Walter G. Morrison, for an alleged improvement in swift brackets for supporting swifts or reels on a winding frame. There was no question in the court below in regard to infringement, the contest being over the validity of the complainant's patent. The defendant contended that, in view of the state of the art, complainant's device was invalid for lack of invention, and that it was not a patentable combination, but only an aggregation of familiar devices which had been previously applied to the same and similar purpose, and which as a whole had also been in prior use. The patent in suit relates to the art of winding silk, cotton, or other threads from large reels onto spools or bobbins. The skein of silk is placed upon the swift or reel, which is a device having two sets of long arms radiating from a hub; pieces of string are looped around each two opposite arms and the skein of silk is slipped over the strings, which are then slid upward on the arms so as to hold the skein extended. There is a pin projecting from each end of the hub of the swift, and these pins rest on bearings in the outer end of brackets mounted upon a rail running lengthwise of the machine. There are generally a number of brackets upon the rail and each bracket may support an end of two adjacent swifts, as illustrated in the drawing of a winding machine offered in evidence and here reproduced. In the upper part of the winding frame is a row of spools or bobbins, on which the silk is to be wound from the swifts, there being one spool above each swift. Each of these spools is revolved by power, so that if the end of the skein on the end of the swift is fastened to the spool, the spool in revolving will wind the silk on it, and by the pull of the silk thread the swift will revolve as the silk is wound off. The alleged invention relates to the brackets used in a winding fame for supporting the axles of swifts. These brackets are set up at regular intervals along the rail, extending therefrom at an angle more or less acute with a line perpendicular to the horizontal rail. They consist of iron arms 12 to 15 inches in length, with bases constructed so as to be attached to the rail by bolts or screws. At the outer end of the arms are sockets for holding the trunions of adjacent swifts. The specifications of the patent say: "As commonly used, the brackets supporting the swifts are rigid and not capable of adjustment, while the conditions of use require a vertical change of position of the swift, in order to obtain the best results." To this end, the bracket arm is no longer made integral with its base, but is united to a suitable projection from the base by a bolt and nut, which serves as a clamp. The bracket can thus be raised or lowered at its outer end upon the bolt as a pivot, and may be secured in any required position by the nut, set screw, or other clamp. In addition to this vertical adjustability, the bracket may be laterally adjusted by means of a slot in the rail, as described in the specifications and draw ings of the patent in suit, or otherwise, as by turning the holes provided for the screws which fasten the base to the rails into a slot, which, by the loosening of the screws, will admit of a slight but sufficient lateral movement of the bracket along the rail. There are five claims in the patent. Those relied upon by the complainant are the first, second, and fourth, which are as follows: "(1) In combination in a winding frame, a swift supporting rail, a plural number of bases adapted to be secured to the rail, a swift-arm pivoted to each base at or near the rail, each arm having on its outer end means for sup porting the ends of two adjacent swifts, and means for locking each arm against pivotal movement. "(2) In combination with a winding frame, a swift-supporting rail, a plural number of bases adapted to be secured to the rail and having means of adjustment lengthwise of the rail, a swift-supporting arm pivoted to each base at or near the rail, each arm having at its outer end means for supporting the ends of two adjacent swifts and means for locking the arm against pivotal movement." "(4) In combination in a winding frame, a swift-supporting rail, a series of two or more bases adjustably mounted upon the rail, a swift-supporting arm pivoted to each base at or near the rail, each arm having at its outer end recessed pockets on opposite sides to receive the swift-bearing of the ends of two adjacent swifts, and means for preventing pivotal movements of the swiftarm." The patentee in his specifications, in describing his invention, after stating that such brackets, as commonly used, are rigid and incapable of adjustment, and that the conditions of use require a vertical change of position in the swift, says: "To this end, my invention consists in the sectional bracket, the sectional clamp and means of securing the bracket to the rail of a winding frame and the combination of the several parts making up the device as a whole, as hereinafter described and more particularly pointed out in the claims." It is not denied that all the elements of this alleged combination are old, and it is apparent from the patent, as well as abundantly clear from the evidence, that the real claim of invention is for the use of a pivot and clamp uniting the bracket arm to the base or for other familiar means of adjustment permitting the bracket to swing on a pivotal point, and for means of adjustment lengthwise of the rail, the locking of the bracket arm against pivotal movement being almost a necessary part of the means of pivotal movement itself. A description of this simple alleged improvement in connection with the several parts of a winding frame, as theretofore existing, gives no patentable character or value to the claims, unless it be such a combination of old elements, as achieves a new result in a new way. It is not perceived, either from the statement of the patent or from the evidence, that this has been accomplished. According to the statement of the patentee in his specifications, the winding apparatus, as it existed prior to the patent, consisted of precisely the same parts as it did after the patent. Functionally, also, these parts were the same. "As commonly used, the brackets supporting the swifts are rigid and not capable of adjustment." It appears from the evidence that, in setting the swifts in position upon the ends. of the brackets, the brackets were adjusted on the rail of the winding frame before fastening them rigidly thereto. It obviously increased the facility of so adjusting them to attach the bracket arm to the base by a pivot, allowing a swinging motion to the arm, which could be clamped in any position by a nut on the end of the pivot. The same results would be obtained by the adjustment of the rigid arm in proper position before fastening the base to the rail. In his letter to the Commissioner, after repeated rejections of his claims, the applicant declared that: "The applicant's joint is provided for the purpose of facilitating the setting up of the machine. It is not intended for use in the operation of running the machine to any extent whatsoever, and for this reason differs from the other devices of the prior art." It is claimed for the patented device in the argument, that its great. purpose was to facilitate the securing of perfect alignment of the axes of the swifts, but this purpose is included in the general purpose of facilitating the setting up of the machines. The addition of such an improvement in facility of adjustment to the swift-supporting brackets of a winding machine, produces its own result, without joint or cooperating action of the other parts of the machine. It will not suffice to describe the addition of this element as being in combination with the other elements or parts of the machine, in order to make a patentable combination. It is an aggregation of elements, not a combination, and the alleged new feature in such aggregation must stand on its own merits as being novel and patentable. Our opinion accords with that of witnesses for the defendant below, who testify that the facility of adjustment to be obtained, by uniting the bracket arm to the base with a pivot and clamp, would be an obvious suggestion to a skilled mechanic. To give a swing to a bracket or bracket arm by means of a pivot at one end thereof, and to maintain rigid position by clamping, by means of a nut on the end of the pivot, is the commonest of mechanical devices to accomplish purposes for which such swinging motion is necessary. The same may also be said of a slot, whether in the rail or the base, to permit of a limited lateral motion. We are not surprised, therefore, that the evidence discloses that just such means had been previously employed to accomplish the same or analogous results. In a patent issued to one Atkinson, in 1873, for certain improvements in bobbin winding machines, we find set forth in the specifications and drawings a pivoted arm for the support of adjacent swifts. It is true, that the use of what is called a swift in this patent is different from that of the swift in the patent in suit; but, as said by the counsel for the appellant, this patent shows that when pivota! movement was required, a pivot was placed in the arm that was used for support of adjacent reels on a winding frame. In 1883, a patent was issued to one Wrigley, for a new "and useful improvement in machines for winding silk, thread," etc. In his specifications, the patentee says: "The object of my invention is to produce a device which will hold securely to their several positions the frames in which are journaled the lower reels on winding machines which will be hereinafter more fully explained." This explanation shows, among other things, a bifurcated bracket, in the ends of the two arms of which are sockets for supporting a reel |