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posed was not presented on the appeal), we held with the Circuit Court that infringement was not shown, because all of them include as one element of the combination "means for adjusting the closed relation of the gripper-jaws in proportion to the thickness of the signature or sheet.” We held that this element was not included in the first claim, and that the combination of that claim was infringed by defendant's device. The oral argument on the appeal had been almost entirely directed to this element, to the necessity of its presence in the patented device and to its absence in defendant's structure. The mechanis:n of the patent in suit and of those in the prior art is intricate and the description thereof voluminous and involved. Our decision was not handed down until several weeks after the argument. Therefore, when defendant petitioned for a reargument as to the validity of this claim, we thought it best to grant the application, restricting the argument, however, to the single proposition whether, construing the first claim as we construed it, the prior art would warrant the court in holding that it disclosed patentable novelty. Having heard argument, we have reached the conclusion hereinafter expressed.
Counsel for defendant seems to have misunderstood the scope of our former decision. We did not hold that the claim covered any and every mechanism intermediate the stopping and starting mechanism and the signature-gripper, which accomplishes the results. Such a broad construction was not intended, nor, as we think, was it expressed in the opinion. Under familiar principles, the device claimed must be the device disclosed by Juengst or its substantial equivalent. It is not necessary to repeat the elaborate description of complainant's device which is found in the opinion—that device or one substantially the same, allowing for fair equivalents of parts of the mechanism, is the "adjustable device intermediate, etc.," which must be shown in any device complained of before infringement can be proved. Neither is it necessary to repeat the detailed discussion of defendant's mechanism in which we pointed out wherein it was substantially the device of the patent. Our views on these points remain unchanged. We did not hold that this was a pioneer patent, but were satisfied that it disclosed a meritorious improvement on earlier machines, entitling the patentee to a fair range of equivalents. Whether or not we were correct in holding that it did disclose a meritorious improvement is the question now to be considered, and we will proceed at once to the patents of the prior art.
La Sor No. 665,789 is for a book signature-gatherer. The device for detecting a failure of the gripper-jaws to act normally and thereupon to stop the machine is thus described in the specifications:
"To provide against the assembling of an incomplete book, the clutch-op erating devices above described are provided. Should any pair of the gripper. jaws fail to grip a book-section in one of the compartments, the contact buttons, 114 and 114a, thereof will coengage (there being no insulating sheets of paper between them), closing an electrical circuit through the respectivo branch wires, 116 and 117, the circuit-wires, 108 and 109, and the electromagnet, 102, causing the armature, 103, thereof to free the trigger-dog, 105, from the catch-head, 102a, and lowering the arm, 99, which operates the clutch 95
to operatirely disconnect the operative parts of the machine from the powershaft 10."
This is certainly very remote from anything Juengst has shown or claimed.
Dexter 567,303 is for a stop mechanism for printing presses. The specification says: "To prevent the paper from entering the printing-press in case two or more sheets are accidentally fed simultaneously from the feeding machine I emplop an automatic auxiliary stop mechanism for throwing the press out of gear. This preferably accomplished on a two-revolution press by the following mechanism. (The details need not be repeated. The mode of action sufficiently discloses the essentials of the device.) The free end of the finger is supported above the feedboard a distance exactly equal to the thickness of a single sheet of paper designed to be fed to the printing press. By the adjustment of the set-screw the finger, m, can be regulated to the varying thickness of different qualities of paper.
The finger m constitutes one of the electric terminals and over the same is adjusted the other terminal, o,
so adjusted as to cause the finger m to come in contact therewith and thus close the circuit by the lifting of said finger by two sheets of paper passing simultaneously under the finger. Said circuit maker and breaker is . connected with the magnet, N, and battery, E. By closing this circuit [a pawl is brought in contact with a lever, which is turned on its pivot so as to shift the driving belt to the loose pulley)."
Dexter describes other mechanisms differing somewhat from what he says is preferable for a two revolution press, but in all of them the circuit makers and breakers and the electromagnet are the essentials of his automatic stop mechanism. No such device as this, if later, could be held to be an infringement of the “intermediate device” which Juengst has shown and claimed.
Dexter 588,635 is for a "collating" or signature-gathering machine. The signatures are taken from the hopper not by a swinging gripper lever, but by a pair of rollers, B, B. The signatures, as in most of these machines, are sucked from the pile on the hopper by the nozzles of a suction pipe, and fed forward to the rollers, to which they are presented perpendicularly. The description is voluminous and the mechanism intricate. Reference is made to the following passage from the specifications: "The salient features, however, of the invention reside in the mechanisms employed for automatically controlling the action of the described signature delivering and gathering devices, so that in case said devices fail to deliver simultaneously a single signature from each hopper, A, or deliver more than one signature at a time from one or more hoppers, the delivering devices adjust themselves to prevent the delivered signatures from passing onto the gathering-carrier, H, and as soon as the delivering devices have resumed their proper requisite operation to deliver from each hopper, A, a single signature, said devices cause the signature to be conducted to the gathering-carrier. For this purpose I employ the laterally-yielding rollers, B, B, which act as normally-closed calipers opened automatically by the pressure of the signature passing through said calipers, and thus measuring the thickness of the signature in transit. In connection with these laterally-yielding rollers or calipers I employ suitable levers which are actuated by the lateral movement of said Tollers or calipers and control the position of the chutes, f', f', and the motion of the gathering-carrier, H, so as to operate in harmony."
We shall not undertake to quote the elaborate description given in the patent, but inserting small sections of Figs. 1 and 2 will endeavor briefly to indicate the fundamental character of the device.
FIG. 2. Looking at figure 1, B, B, are the rollers to which the signatures are fed, passing vertically downward between the guides, f, f. Reneath these guides is a two-way chute, f', f', on one or the other slope
of which the signature will slide. When the chute is in the position shown in figure 1, the signature will pass on to the carrier, H. When it is in the position shown in figure 2, the signatures are shunted off—to the floor or somewhere else. The rollers are movable laterally through their supports, B', B', against the action of springs, c, c; the spring on one side being stronger than that on the other. Through a chain of mechanism which will be seen in the drawings but need not be described, the chute is shifted from one position to the other by tilting the post, f", which supports it. This chain of mechanism receives its impulse from the movement of one of the roller supports, B', against the bell-crank lever, k, or from the movement of the other roller support, B', against the bell-crank lever, m'. When the rollers, B, B, are normally in position with no signature between them, the post is tilted so as to put the chute in the position shown in figure 2. When a single signature comes between the rollers support, B, is forced against the weaker spring moving one of the bell-crank levers and tilting the post so as to bring the chute into the position shown in figure 1-conducting signatures to the carrier, H. When two signatures, by some mischance, come between the rollers, their excessive thickness pushes aside the roller support against the stiffer spring and through the appropriate bell-crank lever and connecting parts tilts the post so as to bring the chute into the position shown in figure 2.
In this machine a change of position of the parts which grip the signatures produces a corresponding change of position of another part at the end of a train of mechanism, but the intermediate devices are differently arranged from those of Juengst and because of the different arrangement produce less comprehensive results. ter's device provides for the detection merely of a double delivery or of a total failure to deliver. It is not organized to reveal so slight an error as the presentation of signatures with a single sheet missing, while reversed signatures, being presented by the suction nozzles in a plane perpendicular to the bite of the rollers, would apparently be passed on as perfect signatures properly placed.
The Jamieson British patent, 13,850, of 1886, shows signatures fed forward out of a series of boxes upon a traveling table. The specifi
“As the missing of a section would affect the efficient working of the machine, a small lever is provided in such a position in front of each box that as a section is drawn out it causes the lever to be pushed back and by so doing rotates a bar running the whole length of the machine, which, if not completely or correctly rotated (by reason of one particular gripper failing to catch the section and coming away from the box empty) fails to allow another rod to rotate. A releasing device is then brought into operation that disconnects the moving parts of the machine from the driving pulley thereby stopping the machine until the attendant supplies (by hand) the missing section.”
This is quite remote from the intermediate mechanism of the patent both in organization and in function.
Heywood, No. 590:984, is for a stop-motion mechanism to "control the movements of machines for various purposes.” It is described and illustrated in connection with an envelope machine. Immediately below the paper blank is a set-screw which is adjusted to contact with the blank, immediately above is a vertical threaded shaft on which there
is a disk with a slot cut in it. Through the free space left by this slot a stop-finger passes, as it rocks up and down when the vertical shaft descends so as to touch the upper surface of the paper blank. But if there is no paper blank, or if there are two, the vertical shaft will descend lower, or not so low (as the case may be) and in consequence the disk will be rotated too far, or not far enough, to present the slot to the stop-finger, which thereupon impinges on the disk and stops the machine. This is very similar to Juengst's detector finger and adjustable portal indeed, there is nothing about this particular stop device, the interposing of an obstruction in a path normally free, which is broadly novel. But the general arrangement of connecting mechanism between the paper in the gripper-jaws and the detecting device actuated by such mechanism, which is found in complainant's and defendant's machines, is not in Heywood.
The Schofield and Baker patent, No. 135,598, for feeding paper to a printing press, with its spur or needle, z, for penetrating the sheet or sheets fed forward, need not be described. Neither it nor any of the other patents referred to are any closer to Juengst's device than those which have been discussed.
Defendant contends that the novelty of the first claim is conclusively negatived by the action of the Patent Office. That claim reads as follows:
“1. In a signature-gatherer the combination with a stopping and starting mechanism and a signature-gripper of an adjustable device intermediate of said mechanism and gripper, and actuated and controlled by the gripper, and exercising a control on the said mechanism, whereby variations from the predetermined thickness of the signatures or sheets act upon the intermediate device for their detection and stop the machine."
It was before the examiner exactly as it stands now (save for some immaterial verbal changes) except that it did not contain the word "adjustable" applied to the intermediate device. It was rejected on the patents to Dexter and La Sor. Thereupon the applicant inserted the word “adjustable,” and it was allowed. The insertion was a proper one because the intermediate device shown was really adjustable by shifting the position of the gauge-plates on the arm, B (see our former opinion), so that the same machine could handle signatures of 2, 4, 6, 8, or even more sheets. But we are not satisfied from the proofs that the office allowed the patent solely because this element of adjustability was incorporated in the claim, and that it would otherwise have rejected it. The letter which inclosed the amendments refers to a personal conference with the examiner at which interview the reference patents were discussed. We cannot say that such discussion did not convince the examiner, as a study of the prior art has convinced us, that Juengst's device was novel irrespective of its feature of adjustability for signatures of different thicknesses.
As to claim 19 which was overlooked in our former opinion, it differs from claim 1 only in the statement that the jaws of the gripper come at opposite sides of the signature. But jaws that grip necessarily come at opposite sides of what they grip. Claim 19 is therefore a mere duplication of claim 1 and should be thrown out.
The conclusion expressed in the original opinion is reaffirmed.