
90 U.S. 261 (____)
23 Wall. 261
MASON
v.
GRAHAM.
Supreme Court of United States.

*273 Mr. Benjamin Deane, for the appellant; Mr. J.E. Maynadier, contra.
Mr. Justice STRONG delivered the opinion of the court.
By the arrangement described in Graham's reissued patent of 1867, and claimed as his invention, it is manifest that that part of the device called the rocker is prevented from sliding perceptibly on its bed and is kept true in its bearings by the arm or bar from which the journals are projected, the arm having also a long bearing in the box of the rocker. The journals, moreover, having bearings in the ears of the *274 bed, steady the rocker, resist any lateral movement, and prevent what is denominated as wabbling. As the picker-staff is made to oscillate, its rocker rises and sinks upon the arm, and thus most of the friction caused by the play of the staff comes upon the shaft, or journal-bearing arm, and not upon the tread of the rocker or the bed-plate.
We think the invention has no relation to any mere form of a journal-bearing arm. Nor do we think it consists in arranging a journal-bearing arm in a slot in the rocker. In our opinion it embraces every combination of a rocker with a bed and loose journal-bearing arms, arranged so as to produce the result described in the specifications as effected by the combination.
And we have been unable to perceive that the invention was anticipated by any of those devices which the defendant has given in evidence. We do not propose to go into any critical examination of them. The case does not call for it. Of them all it may be said that while each has a rocker and a bed, no one connects the rocker with the bed by means of loose journals, or by loose journal-bearing arms, and no one of them obtains the beneficial results secured by the invention belonging to the complainants. It is but faintly claimed, if at all, that any of these patents describe the invention of the complainants. The defendant has used them rather as exhibiting the state of the art when the reissued patent in question was granted, and as requiring that patent to be construed to cover only a combination, of which a journal-bearing arm sliding vertically in a hollow place or box in the rocker, and having journals which turn in open boxes in the bed-piece, is an essential constituent. We think, however, they exhibit no such state of the art as requires that construction to be given to the patent, and we cannot perceive that such a construction is justified by the language of the specification and claims.
We come, then, to the inquiry whether the devices made and sold by the defendant are substantially the same as those patented by the reissued patent; or, in other words, whether the picker-staff motion made and sold by the defendant is *275 an infringement upon the complainants' right. Upon this question the opinions of the experts examined are in direct conflict, and we are, therefore, under the necessity of comparing for ourselves the two devices. We have already said that the object sought to be accomplished by the complainants' invention was the prevention of wabbling of the picker-staff, and compelling it to move steadily, without lateral deflection, in the required plane. It is not denied that exactly this is the object at which the defendant's motion is aimed. It remains, then, only to determine whether the means by which the intended result is obtained are substantially the same. That both the combinations connect a rocker to its bed by journals indirectly, employing an arm to effect such indirect connection, is made clear by inspection. In Mason's motion the arm is attached by a second journal, in the complainants' by a slot in the rocker. It is true the form and the location of the arms differ, but they perform the same functions, and in substantially the same manner. Both are journal-bearing arms. Both connect the journals, whether they are on the rocker or on the bed, indirectly with the bed in the one case, or with the rocker in the other. Each, then, is a combination of a rocker with a bed, by loose journals projecting on each side of the picker-staff, and the combination is effected by means of a journal-bearing arm. That the form of the journal-bearing arm of the defendant's motion is unlike that of the complainants', or that its mode of attachment is different, is immaterial so long as it performs the same function in substantially the same way. We are, therefore, of the opinion that the defendant's picker-staff motion must be considered as practically the same as that patented to the complainants, and, therefore, that the charge of infringement is sustained. The Circuit Court then correctly ordered that the defendant should account.
But we think there was error in the ascertainment of the profits with which he was charged. The master to whom the statement of the account was referred reported that the *276 defendant had made and sold 3639 pairs of the infringing motions as a part of looms manufactured in his establishment, and that the profits resulting from the manufacture and sale of such motions had mingled with the profits from the manufacture of looms. He further reported that the cost of making the looms, including the motions, was $59.63; that the cost of making the motion was 45½ cents each, or 91 cents for each loom; and that the profits resulting from the manufacture of each loom, including the pair of motions, was $5.64. Assuming these to be the facts the appellant insists that he should have been charged with only 8 6/10ths of a cent as the profit made by him on each pair of motions, that bearing the same proportion to $5.54, the whole profit on the looms, which 91 cents, the cost of a pair of motions, bears to $59.63, the cost of the entire loom with the motions. To this we cannot assent. It appears from the master's report that the defendant sold 414 pairs, separately from the looms, at $2 per pair, and 297½ other pairs for $534.75. These sales furnish a much better measure of profits than is a ratable proportion of the profits on an entire loom. It may fairly be presumed from them that the profits on the sale of looms, with the motion attached, were increased by the infringing device quite as much as was the profit on the motions sold separately. It does not appear at what profit, if any, the looms could have been sold without the picker-staff motion attached.
But the master further reported that the defendant made the infringing motions after a pattern of his own devising; that they cost per pair 50 cents less than the picker-staff mechanism which he had immediately before put upon his looms; that they were made under a patent granted to him, and that they cost about 50 cents less than the motions made by the plaintiffs, the difference in the cost being due to his invention. If this is so, it is clear that the 50 cents saved on each pair, equivalent to 50 cents profit, is not due to the complainants' invention. Were it not for the defendant's improvement the cost of making a pair of motions would have been, not 91 cents, but 91 plus 50 cents, or *277 $1.41, and the profits on each pair would have been 59 cents, instead of $1.09 charged to the defendant. Manifestly the complainants are not entitled to the savings or profits resulting from the defendant's own invention.
The defendant, therefore, has been charged by the master's report, confirmed by the court, too much for the profit derived from the sale of 414 pairs of motions sold separately from the looms, and from the sale of 297½ motions also sold separately from the looms. For the former he should have been charged $243.26, instead of $451.26, and for the latter $175.52, instead of $263.
We think, also, that the defendant has been excessively charged for the profits made by him on the 346 beds, and the 1548 rockers sold by him at various times for the repair of bridle motions previously made. He has been credited with the cost only, without reference to the fact that the cost was reduced by his own invention. The complainants have not shown how much the cost would have been had the defendant made them without employing his own improvements. Under such circumstances it appears just to assume that but for the improvement of the defendant the cost of making the bed would have been 42 cents instead of 27 2/10, and the cost of making the rockers would have been 19 2/10 cents instead of 12 cents and 4 mills, as reported by the master. The consequence of this is that the profit on the 346 beds sold was only $167.68, and the profit on the 1548 rockers sold was only $471.49.
The decree, therefore, should have been in favor of the complainants for


  1st. Profits on bridle motions sold on looms, ... ... ...  $1819 50
  2d.  Profits on 414 pairs sold separately, ... ... ... .     243 26
  3d.  Profits on 297½ pairs sold separately, ... ...     175 52
  4th. Profits on the beds sold, ... ... ... ... ... .     167 68
  5th. Profits on the rockers sold separately, ... ... ...     471 49
                                                                   ________
                  Total, ... ... ... ... ... ... . .   $2877 45

A majority of the court is of opinion that the appellant is not entitled to a credit for the $1000 paid on the 25th of October, 1869, for which a receipt was then given.
*278 The decree of the Circuit Court is REVERSED, and the case is remitted with instructions to enter a decree in favor of the complainants against the defendant for $2877.45, with costs of suit in the court below. Each party to pay his own costs in this court.
REVERSAL AND REMAND ACCORDINGLY.
