the second division by another, namely by the hand of a workman turning a crank. Judge WOODRUFF held that this was not such a change of mode of operation as amounted to enough to negative infringement. § 346. The Wells hat-body machine consisted of a revolving brush to separate and throw fibres of fur; a perforated vacuum cone to receive the fur on its exterior surface; and an intermediate tunnel, to guide the fur from the brush to the cone. The patent which was granted for that invention was three times surrendered and reissued. The second reissue was involved in a celebrated Supreme Court case.' That reissue described the machine which Wells invented, and it claimed the mode of operation, substantially as described, of forming bats (hat bodies) of fur fibres. The object of this claim was to cover the machine of Seth Boyden, a machine which had the same general mode of operation as that of Wells, but which was substantially different from the latter in one of its parts. This attempt to base a charge of infringement on sameness of "mode of operation" alone, was occasioned by the fact, that Justice CURTIS, in delivering the opinion of the Supreme Court in the case of Winans v. Denmead,' had used the phrase with great frequency. He used it exactly twenty times in that case; and the counsel for the Wells patent, when arguing the case of Burr v. Duryee, formulated seven doctrines which they stated were deducible from that score of instances. Among those doctrines, the fourth was this: That copying a mode of operation is an infringement. But Justice GRIER, who was one of the majority of the court which decided Winans v. Denmead, was convinced that the latter decision was erroneous, or that it did not mean what it was generally understood to signify, for in Burr v. Duryee he delivered the unanimous opinion of the Supreme Court rejecting the complainant's contention in terms bordering on those of contempt. The case of Winans v. Denmead 1 Burr v. Duryee, 1 Wallace, 531, 1863. 2 Winans v. Denmead, 15 Howard, 330, 1853. cannot therefore be fairly cited as an authority on this point, for if it is not consistent with Burr v. Duryee, it was overruled by the latter, and if it is consistent with the latter case, its expressions are likely at least to mislead the reader, as they misled the counsel for the Wells patent. Harmoniously with its decision in Burr v. Duryee, the Supreme Court has ever since had a positive tendency to disregard whatever is abstract and intangible in questions of infringement, and to base its conclusions upon the concrete features of the issues at bar. § 346a. The Pope electric railroad signal consisted of the combination of an electric battery; a peculiar arrangement of electric circuits; and two or more circuit closers, operating two or more visual or audible signals, situated at intervals along the line of a railroad. That peculiar arrangement of electric circuits essentially consisted in attaching two line wires to the positive and negative poles of a battery, respectively; and in extending both of those wires any required distance in a direction substantially parallel to the line of the railroad; and insulating both from the earth and from each other; and in connecting one of them at intervals with insulated rails in one of the two lines of rails of the railroad track; and in connecting the other one of those wires at the same intervals with insulated rails in the other line of rails in the same track; and interposing an electro-magnet at some point in each of these latter connections. An alleged infringer in one case,' used an electric railroad signal differing from that of Pope, mainly in the peculiar arrangement of the electric circuits. That difference consisted mainly, in disconnecting the negative pole of the battery from its line wire, and in connecting that pole with the earth adjacent thereto, and in connecting the remote end of the disconnected line wire with the earth adjacent to that end. These changes of arrangement changed the mode of operation of the apparatus, in that they caused the electricity to traverse circuits of equal length when the series 1 Electric Signal Co. v. Hall Signal Co. 114 U. S. 87, 1885. of circuit closers were successively operated, whereas Pope's arrangement caused the electricity to traverse circuits of widely variant lengths at such times. This change of mode of operation resulted in a uniformity of electrical resistance among all the circuits, and thus much increased the utility of the apparatus. The Supreme Court therefore held the alleged infringer's combination to be an independent invention, substantially different from that of Pope, and not an infringement of his patent. § 347. Addition to a patented machine or manufacture does not enable him who makes, uses, or sells the patented thing with the addition, to avoid a charge of infringement.' This is true even where the added device facilitates the working of one of the parts of the patented combination, and thus makes the latter perform its function with more excellence and greater speed.' But there is a necessary qualification of this rule, which must not be overlooked; a qualification founded as yet upon no adjudicated case exactly in point, but based on considerations of justice which cannot be ignored nor disputed. If a patented combination differs from some older combination, only in the omission of one of the parts of the latter, and in a resulting difference of mode of operation, the restoration of the older structure by adding the part which the patented combination omitted, would not constitute an infringement of the latter. $348. Changing the relative positions of the parts of a machine or manufacture does not avert infringement where the parts transposed perform the same respective functions after the change as before.' In the first of the cases just cited, the thing transposed was a beater shaft in a corn 1 Carr v. Rice, 1 Fisher, 209, 1856; Roemer v. Simon, 20 Fed. Rep. 197, 1884; Royer v. Coupe, 29 Fed. Rep. 366, 1886; Filley v. Stove Co. 30 Fed. Rep. 434, 1887. Cochrane v. Deener, 94 U. S. 786, 1876; Wirt v. Brown, 30 Fed. Rep. 187, 1877. Adams v. Mfg. Co. 3 Bann. & Ard. 1, 1877; Knox v. Quicksilver Mining Co. 6 Sawyer, 438, 1878; North Western Horse Nail Co. v. Horse Nail Co. 28 Fed. Rep. 234, 1886. sheller. Both in its original and in its new position, its function was to force the ears of corn into the throat of the sheller. In the second case, the thing transposed was the outlet vapor flue of a quicksilver furnace; and that flue operated in the same way to perform the same function in the infringing apparatus that it did in the patented furnace. But changing the relative positions of the parts of a machine does avert infringement, where the changing of those positions so changes the functions of the parts, that the machine acquires a substantially different mode of operation, even though the result of the machine remains the same. A suit for infringement cannot be sustained against him who makes, uses, or sells a substantially different combination, even though it includes exactly the same ingredients as those claimed in combination by the patent in suit. The owner of a patent for a combination cannot suppress a newer, better, and substantially different combination of the same ingredients." § 349. Omission of one ingredient of a combination covered by any claim of a patent, averts any charge of infringement based on that claim. A combination is an entirety. If one of its elements is omitted, the thing claimed disappears. Every part of the combination claimed is conclusively presumed to be material to the combination, and no evidence to the contrary is admissible in any case of alleged infringement. The patentee makes all the parts of a com 1 Brooks v. Fisk, 15 Howard, 221, 1853. 2 Gill v. Wells, 22 Wallace, 14, 1874; Snow v. Railway Co. 121 U. S. 629, 1886. 3 Seymour . Osborne, 11 Wallace, 555, 1870. 4 Prouty v. Ruggles, 16 Peters, 341, 1842; Eames v. Godfrey, 1 Wallace, 78, 1863; Case v. Brown, 2 Wallace, 320, 1864; Dunbar v. Myers, 94 U. S. 187, 1876; Fuller v. Yentzer, 94 U. S. 297, 1876; Rowell v. Lindsay, 113 U. S. 102, 1884; Shepard v. Carrigan, 116 U. S. 597, 1885; Sharp v. Riessner, 119 U. S. 636, 1886; Ott v. Barth, 32 Fed. Rep. 91, 1887; Thompson . Gildersleeve, 34 Fed. Rep. 45, 1888; Schmid v. Mfg. Co. 37 Fed. Rep. 347, 1889. 5 Vance v. Campbell, 1 Black. 430, 1861; Fay . Cordesman, 109 U. S. 420, 1883; Sargent . Lock Co. 114 U. S. 86, 1884; Shepard v. Carrigan, 116 U. S. 597, 1885; Yale Lock Co v. Sargent, 117 U. S. 378, 1885: LeFever v. Remington, 13 Fed. Rep. 86, 1882; Snow . Railway Co. 18 bination material, when he claims them in combination and not separately.' A patentee may, however, describe all the devices in his machine or manufacture, and instead of claiming all or any particular portion of them in combination, may claim so much of the described mechanism as produces a particular described result. Such a claim is infringed by him who, without ownership or license, makes, uses, or sells any apparatus made up of enough of the described devices to produce the specified result, by the specified mode of operation. The rule stated at the head of this section is perhaps the best known and most frequently applied of all the rules which pertain to infringement; but it has no application to anything which depends upon a particular form for patentability, and which for convenience may be made in several sections. A shoe last, for example, even if made in only two sections, may infringe a patent for a last of the same shape, but which is made in three sections instead of in two." § 350. No substitution of an equivalent for any ingredient of a combination covered by any claim of a patent can avert a charge of infringement of that claim. But like substitution of something which is not an equivalent, will have that effect. The doctrine of equivalents may be invoked by any patentee whether he claimed equivalents in his claim, or described any in his specification,' or omitted 6 Fed. Rep. 602, 1883; Travers v. I Water-Meter Co. v. Desper, 101 U. S. 332, 1879; Brown v. Davis, 116 U. S. 249, 1885; Williams v. Stolzenbach, 23 Fed. Rep. 41, 1885; Otley v. Watkins, 36 Fed. Rep. 324, 1888. * Silsby v. Foote, 14 Howard, 218, 1852. 3 Mabie v. Haskell, 2 Clif. 511, 1865. 4 O'Reilly . Morse, 15 Howard, 62, 1853; Imhaeuser v. Buerk, 101 U. S. 655, 1879; Reed v. Chase, 25 Fed. Rep. 94, 1885; American Box Machine Co. v. Day, 32 Fed. Rep. 585, 1887; Ligowski Clay Pigeon Co. v. Clay Bird Co. 34 Fed. Rep. 331, 1888. Railway Co. v. Sayles, 97 U. S. 562, 1878. 6 Dental Vulcanite Co. v. Davis, 102 U. S. 229, 1880. Union Metallic Cartridge Co. v. United States Cartridge Co. 2 Bann. & Ard. 594, 1877. |