
116 U.S. 237 (1886)
BROWN & Others
v.
DAVIS & Others
Supreme Court of United States.
Argued December 17, 1885.
Decided January 11, 1886.
APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF NEW YORK.
*238 Mr. E.E. Wood and Mr. B.F. Thurston for appellants.
Mr. S.D. Bentley (Mr. William F. Cogswell was with him on the brief) for appellees.
MR. JUSTICE BLATCHFORD delivered the opinion of the court.
This is a suit in equity, brought in the Circuit Court of the United States for the Northern District of New York, on re-issued letters patent No. 8589, granted to Charles F. Davis and William Allen, February 18, 1879, for an "improvement in grain drills," the original patent, No. 74,515, having been granted to said Davis, as inventor, February 18, 1868. The application for the reissue was filed January 24, 1879. The defences set up in the answer are, want of utility and novelty, invalidity of the reissue, and non-infringement. The specifications of the original and reissued patents are here placed side by side, the parts in each not found in the other being in italic:


          Original.                                      Reissue.
    "Be it known that I, Charles            |    "Be it known that I, Charles
  F. Davis, of Auburn, in the               |  F. Davis, of Auburn, county
  county of Cayuga, and State               |  of Cayuga, State of New York,
  of New York, have invented                |  have invented certain new and
  certain new and useful improvements       |  useful improvements in grain
  in grain drills; and                      |  drills, of which the following is
  I do hereby declare the following         |  a full, clear and exact description,
  to be a full, clear, and exact            |  reference being had to the
  description of the same, reference        |  accompanying drawings, making
  being had to the accompanying             |  part of this specification,



*239
  drawings, making                          |  in which Figure 1 represents a
  a part of this specification, in          |  plan or top view of the drill,
  which Figure 1 represents a               |  with the seed-box removed,
  top plan of the drill, with the           |  (but its position shown by
  seed-box removed, but its position        |  dotted lines,) to show the parts
  shown by red lines, to                    |  underneath it. Fig. 2 represents
  show the parts underneath it.             |  the crank-rod or shaft
  Figure 2 represents the crank-rod         |  to which the front ends of the
  or shaft to which the front               |  drag-bars are attached, detached
  ends of the drag-bars are                 |  from the machine.
  attached, when detached from              |  Fig. 3 represents an end view
  the machine. Figure 3 represents          |  of the drill, with the wheel removed,
  an end view of the drill,                 |  to show the parts behind
  with the wheel removed, to                |  it, and representing, by
  show the parts behind it, and             |  full and dotted lines, the
  representing, by black, dotted            |  several operative parts, and
  and red lines, the several operative      |  their positions under the
  parts, and their positions                |  changes of the machine or its
  under the changes of the                  |  parts. Similar letters of reference
  machine or its parts. Similar             |  denote corresponding
  letters of reference, where they          |  parts in all the figures.
  occur in the separate figures,            |
  denote like parts in all of the           |
  drawings.                                 |
                                            |
    The object and purpose of               |    The object and purpose of
  my invention are to shift or              |  my invention is to shift or
  change the seeding shoes or               |  change the seeding shoes or
  hoes from a straight to a zigzag          |  hoes from a straight to a zigzag
  line, and vice versa, and,                |  line, and vice versa, and
  further, to so hang the shoes             |  further, to so hang the shoes
  or hoes, as, in addition to the           |  or hoes, as, in addition to the
  shifting process, to admit of             |  shifting process, to admit of
  being raised separately, or the           |  being raised separately, or the
  whole series together, as may             |  whole series together, as may
  be found necessary.                       |  be found necessary.
                                            |
    To enable others skilled in             |    To enable others skilled in
  the art to make and use my                |  the art to make and use my
  invention, I will proceed to              |  invention, I will proceed to



*240
  describe the same with reference          |  describe the same with reference
  to the drawings:                          |  to the drawings:




    Upon an axle, A, supported              |    Upon an axle, A, supported
  on the usual carrying wheels,             |  on the usual carrying-wheels,



*241
  B B, is mounted a main frame,             |  B B, is mounted a main frame,
  C, and on the main frame a                |  C, and on the main frame a
  seed-box, D, the slides of which          |  seed-box, D, the slides of which
  may be operated in any of the             |  may be operated in any of the
  well-known ways. In bearings,             |  well-known ways. In bearings,
  E, in the front portion of                |  E, in the front portion of
  the main frame, is hung, so as            |  the main frame, is hung, so as
  to rock or turn therein, a zigzag         |  to rock or turn therein, a zigzag
  or crank shaft, F, (shown detached        |  or crank-shaft, F, (shown detached
  in Fig. 2,) and to the                    |  in Fig. 2,) and to the
  cranks or wrists, a a a, of this          |  cranks or wrists, a a a, of this
  shaft are connected, seriatim,            |  shaft are connected, seriatim,
  the drag-bars, b b b, by means            |  the drag-bars, b b b, by means
  of bows or yokes, c, each bow             |  of bows or yokes, c, each bow
  or yoke taking two of said                |  or yoke taking two of said
  wrists, as shown in Fig. 1. To            |  wrists, as shown in Fig. 1. To
  the rear ends of these drag-bars,         |  the rear ends of these drag-bars,
  b, are attached the shoes                 |  b, are attached the shoes or
  or hoes, G, in any of the usual           |  hoes, G, in any of the usual
  well-known ways. In the projecting        |  well-known ways. In the projecting
  rear portion of the main                  |  rear portion of the main
  frame C there is hung a shaft,            |  frame C there is hung a shaft,
  d, upon which there is a lever,           |  d, upon which there is a lever,
  e, by which it can be rocked or           |  e, by which it can be rocked or
  rolled in its bearings. At                |  rolled in its bearings. At
  suitable distances upon this              |  suitable distances upon this
  shaft d there is placed a series          |  shaft d there is placed a series
  of levers, f f, one for each shoe         |  of levers, f f, one for each shoe
  or hoe, which are kept in their           |  or hoe, which are kept in their
  proper positions on the shaft by          |  proper positions on the shaft by
  pins, 1, 1, or other suitable devices,    |  pins, 1, 1, or other suitable devices,
  but which can be moved                    |  but which can be moved
  independent of the shaft or of            |  independent of the shaft or of
  each other, or all together, as           |  each other, or all together, as
  will be explained. The levers             |  will be explained. The levers
  f have a hub or swell, g, at              |  f have a hub or swell, g, at
  their central portions, where             |  their central portions, where
  they are slipped on to the shaft          |  they are slipped on to the shaft



*242
  d; and into each one of these             |  d; and into each one of these
  hubs is set a pin, 2, which is            |  hubs is set a pin, 2, which is
  above the pins 1, 1, in the shaft,        |  above the pins 1, 1, in the shaft,
  so that each lever can be turned          |  so that each lever can be turned
  upon the shaft; but, when the             |  upon the shaft; but, when the
  shaft is rocked or turned, then           |  shaft is rocked or turned, then
  all the levers are worked simultaneously. |  all the levers are worked simultaneously.
  To the forward                            |  To the forward
  ends of these levers f the shoes          |  ends of these levers f the shoes
  or hoes are respectively connected        |  or hoes are respectively connected
  by a link or hinged rod,                  |  by a link or hinged rod,
  h, the rearward-projecting ends           |  h, the rearward-projecting ends
  of said levers serving as handles         |  of said levers serving as handles
  for the operator to seize and             |  for the operator to seize and
  work separately, when necessary           |  work separately, when necessary
  to do so, or he can raise                 |  to do so, or he can raise
  the whole series by seizing and           |  the whole series by seizing and
  working the lever e. One end              |  working the lever e. One end
  of the shaft d projects through           |  of the shaft d projects through
  the timber of the main frame,             |  the timber of the main frame,
  for convenience of placing the            |  for convenience of placing the
  parts, and upon it is a lever, H,         |  parts, and upon it is a lever, H,
  and a spring-locking lever, i,            |  and a spring-locking lever, i,
  connected with it, both of which          |  connected with it, both of which
  levers the operator may grasp             |  levers the operator may grasp
  at once, and by pressure first            |  at once, and by pressure first
  unlock the catch, and then move           |  unlock the catch and then move
  the main lever, H, and the shaft          |  the main lever, H, and the shaft
  d, as well as the parts connected         |  d, as well as the parts connected
  with it. The catch or locking-lever       |  with it. The catch or locking-lever
  i takes into or against                   |  i takes into or against
  a stop-plate, j, on the main              |  the stop-plate, j, on the main
  frame, when not otherwise controlled.     |  frame, when not otherwise controlled.
  The upper portion of                      |  The upper portion of
  the lever H serves as a handle to         |  the lever H serves as a handle
  work it by, and to the lower              |  to work it by, and to the lower
  end of it is pivoted a rack-bar,          |  end of it is pivoted a rack-bar
  m, which takes into a pinion n,           |  or connecting-rod, m, which



*243
  fastened on the end of the crank          |  takes into a pinion, n, fastened
  or zigzag shaft F, and, when              |  on the end of the crank or zigzag
  the pinion n is turned, the crank         |  shaft F, and, when the
  shaft is also turned, and, as it          |  pinion n is turned, the crank-shaft
  is turned, it shifts the shoes or         |  is also turned, and, as it is
  hoes into a zigzag or a straight          |  turned, it shifts the shoes or
  line, as the case may be. When            |  hoes into a zigzag or a straight
  the lever H, and the zigzag               |  line, as the case may be. When
  shaft F, and their several connected      |  the lever H, and the zigzag shaft
  and operative parts, are                  |  F, and the connecting-bar m, and
  in the positions shown by the             |  their several connecting and
  black lines in Figs. 1 and 3, the         |  operative parts, are in the
  shoes or hoes G are then in a             |  positions shown by the full
  straight line across the machine;         |  lines in Figs. 1 and 3, the shoes
  but, when the lever H                     |  or hoes G are then in a straight
  is shifted into the position              |  line across the machine; but,
  shown by the red lines in Fig.            |  when the lever H is shifted into
  3, it turns the shaft and moves           |  to the position shown by the
  the parts connected with them,            |  dotted lines in Fig. 3, it turns
  and the shoes or hoes will then           |  the shaft and moves the parts
  stand in a zigzag line across             |  connected with them, and the
  the machine, as shown by the              |  shoes or hoes will then stand in a
  red lines, or in what may be              |  zigzag line across the machine,
  termed two lines, one in advance          |  as shown by the full lines, or in
  of the other; and, that                   |  what may be termed two lines,
  the shoes or hoes may be thus             |  one in advance of the other;
  moved into one or two lines,              |  and, in order that the shoes or
  and still be susceptible of being         |  hoes may be thus moved into
  raised up separately, or in their         |  one or two lines, and still be
  series capacity, their connections        |  susceptible of being raised up
  and attachments must all                  |  separately, or in their series capacity,
  be hinged or yielding. When               |  their connections and
  there is an odd number of shoes           |  the attachments must all be
  or hoes on the machine, the odd           |  hinged or yielding. When
  one should be in the rear series,         |  there is an odd number of shoes
  in which case there would be              |  or hoes on the machine, the odd
  no necessity of locking the               |  one should be in the rear series,
  lever H when the shoes were so            |  in which case there would be no



*244
  arranged, as the greater resistance       |  necessity of locking the lever
  on the greater number                     |  H when the shoes are so arranged,
  would always keep them so.                |  as the greater resistance
  But, if an even number of shoes           |  on the greater number
  be used, and an equal number              |  would always keep them so.
  in each row, then the lever               |  But, if an even number of shoes
  would have to be locked or                |  be used, and an equal number
  fastened in both of its positions.        |  in each row, then the lever
                                            |  would have to be locked or
                                            |  fastened in both of its positions.
                                            |
    It is obvious that other mechanical     |    It is obvious that other mechanical
  devices may be used                       |  devices may be used for
  for shifting the shoes or hoes            |  shifting the shoes or hoes from
  from a straight into a zigzag             |  a straight into a zigzag line,
  line, or vice versa. I have devised       |  or vice versa. I have devised
  several ways of accomplishing             |  several ways of accomplishing
  this movement, as, for                    |  this movement. The rack-bar
  instance, a sheave, pulley, or            |  or connecting-bar m may be used
  chain wheel may be keyed to               |  for this purpose, and thereby
  the end of the crank shaft, and           |  the shoes or hoes may be shifted
  to this sheave or wheel a chain           |  from a straight to a zigzag line,
  may be attached, and, passing             |  or vice versa, said connecting-bar
  around it, extend thence to               |  m being held in position, if
  the lever, so that, by working            |  desired, by any of the usual mechanical
  the lever, the same effect would          |  devices for that purpose;
  be attained as by the rack and            |  second, by means of a
  pinion.                                   |  sheave, pulley or chain wheel,
                                            |  which may keyed to the end
                                            |  of the crank-shaft, and to this
                                            |  sheave or wheel a chain may be
                                            |  attached, and, passing around
                                            |  it, so that, by means thereof,
                                            |  the same effect can be attained
                                            |  as by the rack and pinion.
                                            |
    Another plan may be as follows:         |    Another plan may be as follows:
  A crank or cross arms                     |  A crank or cross arms
  may be placed on the turning              |  may be placed on the turning
  shaft, and, by means of connecting        |  shaft, and, by means of a connecting



*245
  rods, which connect the                   |  rod or rods, the shaft
  cranks or arms with the levers,           |  may be turned by the operator,
  the shaft may be turned, and              |  and the shoes thus thrown into
  the shoes thus thrown into a              |  a straight or zigzag line, as may
  straight or zigzag line, as may           |  be desired; or, instead of the
  be desired; or, instead of the            |  crank-shaft, the shoes may be
  crank-shaft to shift the shoes,           |  united in sets to different bars,
  the shoes may be united in sets           |  which may be straight, both
  to different bars, which may              |  bars being united to cross-bars
  be straight, both bars being              |  or heads at their ends. Now,
  united to cross-bars or heads at          |  by shifting the relations of
  their ends. Now, by shifting              |  these two bars, and by the
  these two bars, they will shift           |  means aforesaid, or by the connecting-rod
  the shoes attached to them, and           |  m, the operator can
  change them into the positions            |  shift the shoes or hoes attached
  hereinabove described. When               |  to them into the positions hereinabove
  the hoes are set in a zigzag              |  described. When the
  line, as above mentioned, and             |  hoes are set in a zigzag line, as
  are in that position raised up,           |  above mentioned, and are in
  a pin, 3, in the extreme end of           |  that position raised up, a pin,
  the shaft d, will take against a          |  3, in the extreme end of the
  pin, 4, in the lever H, and               |  shaft d, will take against a pin,
  thereby shifting the hoes into            |  4, in the lever H, and thereby
  more nearly a straight line, as           |  shifting the hoes into more
  they rise, or into quite a straight       |  nearly a straight line, as they
  line, depending upon the extent           |  rise, or into quite a straight
  to which they are raised.                 |  line, depending upon the extent
                                            |  to which they are raised.
                                            |
    Having thus fully described             |    Having now described my
  my invention, what I claim                |  invention, what I claim as new
  therein as new and desire to              |  and desire to secure by letters
  secure by letters patent, is:             |  patent, is:
                                            |
    1. So attaching the shoes or            |    1. The shoes or hoes of a seed-planter,
  hoes of a seed-planter to the             |  attached to the main
  main frame, as that, by means             |  frame, substantially as described,
  of a lever, or its equivalent,            |  whereby they may be
  said shoes may be shifted from            |  simultaneously shifted from
  a straight to a zigzag line, or           |  a straight to a zigzag line, or



*246
  vice versa, at pleasure, substantially    |   vice versa, by a single movement.
  as described.                             |
                                            |
    2. I also claim, in combination         |    2. The shoes or hoes of a seed-planter,
  with a series of shoes or                 |  attached to the main
  hoes that are capable of being            |  frame, substantially as described,
  changed from a straight to a              |  in combination with a
  zigzag line, or vice versa, the so        |  lever or its equivalent, whereby
  connecting of said shoes, by independent  |  they can be shifted, at the pleasure
  levers, to the lifting-bar,               |  of the operator, from a
  as that they may be raised                |  straight to a zigzag line, or vice
  by the operator individually, or          |  versa.
  as a whole, substantially as described.   |
                                            |
    3. I also claim hinging the             |    3. The shoes or hoes of a seed-planter,
  shoe to both its drag-bar and its         |  attached to the main
  individual lever, so that the             |  frame, substantially as described,
  shoe may be raised and lowered            |  in combination with a
  in either of its changed positions,       |  rod or its equivalent, whereby
  by a lever that is permanently            |  they can be shifted from a
  located, substantially as                 |  straight to a zigzag line, or vice
  described."                               |  versa.
                                            |
                                            |    4. A series of shoes or hoes
                                            |  that are capable of being
                                            |  changed from a straight to a
                                            |  zigzag line, or vice versa, in
                                            |  combination with independent
                                            |  levers, connecting said shoes or
                                            |  hoes with the lifting-bar, whereby
                                            |  they can be raised by the
                                            |  operator individually or as a
                                            |  whole, substantially as described.
                                            |
                                            |    5. The shoe hinged to both
                                            |  its drag-bar and its individual
                                            |  lever, so that it can be raised or
                                            |  lowered, in either of its changed
                                            |  positions, by a lever that is permanently



*247
                                            |  located, substantially
                                            |  as described.
                                            |
                                            |    6. In combination with a
                                            |  series of shoes or hoes that are
                                            |  capable of being changed by the
                                            |  operator at the rear of the machine,
                                            |  from a straight to a zigzag
                                            |  line, or vice versa, a shaft
                                            |  and lifting lever connected
                                            |  therewith, whereby the whole series
                                            |  can be raised at once by the
                                            |  operator, to pass obstructions,
                                            |  substantially as described."

The cause was heard in the Circuit Court, on pleadings and proofs, and a decision rendered in May, 1881, Davis v. Brown, 19 Blatchford, 263, in pursuance of which an interlocutory decree was entered, in June, 1881, declaring the reissued patent to be valid, and to have been infringed as to all its claims, and awarding a recovery of profits and damages and a perpetual injunction. On the report of a master, a final decree was entered in February, 1882, by which the plaintiffs recovered $5689.91, as damages and costs. The defendants have appealed to this court.
The specification of the original patent stated the purpose of the invention to be, to change the seeding shoes or hoes from a straight to a zigzag line, and vice versa; and, also, to so hang the shoes or hoes, as, in addition to the shifting process, to allow the shoes or hoes to be raised all together, or any one separately. The mechanical means described in that specification, for shifting the shoes, are these: In the front part of the machine is a rotating shaft, with cranks on it, so arranged that the shaft does not have a straight continuous axis, but has sets of axes in different lines, alternating, so that, yokes being attached, each to two of the cranks, and each two of the cranks having axes in a different line from the line of the axes of the next two adjoining cranks, the yokes being of substantially equal length, and being connected by drag-bars, at *248 the rear ends of the drag-bars, to the shoes, a rotating motion given to the crank-shaft will shift the shoes, by moving all of them, each alternate shoe moving in an opposite direction from that in which the shoe next to it moves, and thus a space being opened or closed, of double the distance through which any shoe travels. To rotate the crank-shaft, there is a cross shaft in the rear of the machine, on the end of which is an upright lever, which extends upwards to form a handle, and has pivoted to it below a bar, which extends forward, and the forward end of which is formed into a rack, which works into a pinion on the end of the crank-shaft. By moving the lever, the rack and pinion are worked, and the crank-shaft is rotated, and the shoes are shifted. The extent of the rotating movement of the crank-shaft is about half a circle, back and forth. The original specification says, that, instead of employing the crank-shaft, the shoes may be united in sets to different bars, which may be straight, both bars being united to cross-bars or heads, at their ends; and that, by shifting these two bars, the shoes attached to them will be shifted. But there is no more specific description of mechanism for the purpose, nor any drawing of such mechanism.
In the defendants' machine, every alternate shoe is connected with an immovable part of the frame, and every other alternate shoe is connected with a swinging cross-bar, which hangs down so as to have a motion back and forth in the arc of a circle, by reason of its being hung in bearings in the side of the frame. A rod extends from near the middle of the width of the swinging cross-bar to the rear part of the frame, behind the line from which the shoes are suspended, which rod is supported in the centre of its length, and terminates, at its rear end, in a handle, so that an operator can work it, and, by pulling it, shift simultaneously all the shoes that are attached to the swinging cross-bar. Two coiled springs are so arranged, that, when the rod is pulled, the springs are compressed, and, when the rod is released, the action of the springs tends to throw the swinging cross-bar and the shoes attached to it towards the front of the frame again, restoring them to the position from which the pulling of the rod moved them. Thus, *249 only alternate shoes are shifted, but the positions of the toes of the shoes, relatively to each other, can be simultaneously changed, and a wider space, in a straight line, be opened between any two toes at any time. The shoes are so set that their toes are never in a straight line across, but, when nearest to each other, are somewhat out of a straight line, and the pulling of the rod causes the distance between them to increase. The shoes which move in increasing such distance do so through the rotating motion to and fro of the swinging cross-bar to which they are attached, such motion being imparted by the pulling, at the rear of the machine, of the rod attached to the swinging cross-bar. In the plaintiffs' machine, the shoes which move, in increasing such distance, do so through the rotating motion to and fro of the crank-shaft to which they are attached, such motion being imparted by the pushing at the rear of the machine of the rod that carries the rack, the rod being worked by a lever.
An examination of the claims of the original and reissued patents shows that claim 2 of the reissue is substantially the same as claim 1 of the original; that claim 4 of the reissue is substantially the same as claim 2 of the original; and that claim 5 of the reissue is substantially the same as claim 3 of the original.
The Circuit Court held that claim 2 of the reissue was infringed, although in the defendants' machine there is no lever such as the lever H of the patent, and no equivalent or substitute for it. The view taken was, that claim 2 was infringed, because the defendants use a rod, the end of which is pushed and pulled by the hand of the operator, while in the patent the lever H pulls and pushes the end of the rod. But the lever, or its equivalent, as a mechanical instrument, is made an essential element in claim 2, and dispensing with the lever, and using instead the human hand, is not the use of an equivalent, although in the plaintiffs' machine the hand is applied to work the lever. Water Meter Co. v. Desper, 101 U.S., 332, 337; Gage v. Herring, 107 U.S. 640, 648; Fay v. Cordesman, 109 U.S. 408, 420, 421; Sargent v. Hall Safe and Lock Co., 114 U.S. 63, 86.
*250 In order to determine what construction ought to be given to the other claims of the reissue, it is necessary to consider an invention made by one Powers, at Madison, Wisconsin, in 1862, the invention of Davis being carried back only to September, 1866. During the winter of 1861-2, and the spring of 1862, Powers was selling, at Madison, grain drills with iron drag-bars. During the season of 1862, noticing the working of drills in the field, he conceived the idea that the shoes could be put into single and double ranks by a more easy method than that then used. He worked out a plan, and made a model of it, and applied for a patent, November 10, 1862. The patent was ordered to issue December 6, 1862, but was never issued. The reason is not stated. The specification filed states that the "invention consists of a device to enable the shovels or plows of a drill to be set in single or double rows or ranks, with greater ease and facility than hitherto." The method described and shown in the drawings is to have a cross row of stationary shovels; and a cross row of other shovels, attached to a cross-bar, which is arranged, at each end of it, so as to slide to the extent of eight inches to and fro, in a groove. Thus, two rows may be made, or the sliding cross-bar may be set at a point where all the shovels will be in a line, and one row be formed. The movable cross-bar is moved by hand, and secured, when set, by bolts. The claim covers "the method of double and single ranking the drill teeth, by the adjustment of the sliding cross-bar A, to which are attached the alternate drill teeth or shovels, to different positions between the side pieces of the frame." The description states, that, "by this device, double or single ranking can be effected in a moment, instead of the more tedious process of other similar machines," and that "double and single ranking is a highly important feature in a drill, to adapt it to different soils and circumstances." Powers put this shifting arrangement "on to two or may be three drills" which he had on hand. He testifies to the use of two of them, and says they worked perfectly, so far as changing the rank of the drill was concerned. This was a completed invention. The idea of changing the relative positions of the shoes by having one row of them stationary and moving the other, which is the idea developed *251 in the defendants' machine, was fully embodied in Powers' machine. It had no lever and rod to do the work of the hand in moving the sliding cross-bar, and that cross-bar was held in position, when set, by bolts.
In view of this invention of Powers, we are of opinion that the invention of the Davis patent must be limited, so far as the shifting apparatus is concerned, to the special arrangement of the rotating crank-shaft described, and shown in the drawings. The words "substantially as described," found in each of the first two claims of the original patent, properly confined those claims to the shifting mechanism described. If claim 1 of the reissue is given a construction which includes any arrangement for shifting not substantially using a rotating crank-shaft, it becomes a claim which could not lawfully have been granted in the original patent; and, as a claim in a reissued patent, it is invalid, within the defences set up in the answer, because the application for the reissue was made nearly eleven years after the original patent was granted, and after machines effecting the shifting by other means than a rotating crank-shaft had gone into use subsequently to the date of the original patent, and no sufficient excuse is given for the laches and delay. The same remarks apply to claim 3 of the reissue.
In view of the rulings of this court on the subject of reissued patents, made since the decision in this case was made by the court below, in May, 1881, this case must be considered in view of the fact that the new matter introduced into the specification of the reissue was put in for the purpose of reaching machines which the claims of the original patent would not reach, and of laying a foundation for claims 1 and 3 of the re-issue. The inventor and patentee, Davis, distinctly says this, in his testimony. The principal interpolation is in these words: "The rack-bar or connecting-rod m may be used for this purpose, and thereby the shoes or hoes may be shifted from a straight to a zigzag line, or vice versa, said connecting-bar m being held in position, if desired, by any of the usual mechanical devices for that purpose." In the original specification m is called a "rack-bar," because it is pivoted at one end to the lower end of the lever H, and has on its other end a rack taking *252 into a pinion on the end of the crank-shaft. But, in the reissue, m is called "a rack-bar or connecting-rod." Again, in the reissue, the reference to the letter H, as connected with and working the chain to be used with the sheave or wheel, in the second suggested alternative means of shifting, is erased, so as not to make the use of the lever H necessary. Before these changes, the defendants' machine, which has no lever and no rotating crank-shaft, would not have been within the scope of the original claims, but, if the rack-bar were to become a connecting-rod, it was thought it might cover the rod in the defendants' machine. Claim 3 of the reissue was framed on this view, of shifting by a rod alone, while claim 1 is made so broad as to seem to claim shifting by any means, by a single movement.
As to claims 4, 5 and 6 of the reissue, the shifting mechanism of the patent, with its rotating crank-shaft, must, in view of the Powers invention, be considered as an element in each claim; and that mechanism is not used by the defendants.
It follows from these views, that
The decree of the Circuit Court must be reversed, and the case remanded, with a direction to dismiss the bill, with costs.
