the roller; the second for the lateral yield in the table and stretcher; the third for

3. The improvement in the method of stretching hides, which consists in dragging the hide over a stretcher, and also over a friction table or beam, by means of a revolving roller, to which the hide is secured as described, whereby as the hide is passed over the table or beam the thicker portions of the hide are detained or made to lag by pressure applied to such thicker portions, to increase at such points the friction between the hide and the table, substantially as specified.

There was a machine for stretching leather for belts well known to the patentee and to some others in the trade, which was made by modi. fying a splitting-machine. Mr. Coupe did not, in fact, make his im provement upon this stretcher, but it is much more like his machine than anything else which preceded it. This old machine was used upon hard tanned leather to adapt it to be made into belts for machinery, for which purpose it must be stretched with great power (eighteen or twenty thousand pounds to the square inch), in order to take out of it all possibility of further stretching. This was doue by passing the leather through a trough which was brought up against the stretcherbar with the force we have mentioned. Since the plaintiffs' method and machine have become known, Mr. Davis, an accomplished worker in leather, has tried with some success an enlarged copy of the old belt-leather stretcher to do the work of the plaintiffs' machine. He is obliged to use a greater number of men or boys to tend the machine and prevent the pressure from ruining the hide, which of itself tends to prove that the machines are not alike; and we have no doubt that if the plaintiffs' devices are considered an improvement upon this old machine, they embody a patentable improvement. They omit the means for producing the pressure, and add a table, not useful in the old machine, but which in the new machine enables the workmen to exert sufficient pressure.

The defendants at one time used a machine which closely resembles that of the plaintiffs. At present they have one which works with a trough and bar, like the old belt-stretcher, with the addition of a table over which the leather passes, and which enables the workmen to spread out and manipulate the hide. Upon the edge of this table is a piece of metal with grooves spreading outward, and these grooves have a tendency to stretch the hide laterally, or, at least, to prevent it from wrink ling-that is, to keep it to its lateral stretch, which seems to be much the same thing. The slot and bar are so placed in relation to each other that a hide is not squeezed between them, as in the old belt-stretcher; but in the legitimate attempt to avoid infringement of the plaintiffs' invention, which the defendants intended to copy as far as they law. fully might, because they had failed to come to terms with the plaint. iffs for a license, they now put into the trough a piece of board, sup ported at either end upon blocks, about one-third the width of the trough. The operation of the machine as thus modified is known only to the defendants themselves, and Mr. Weatherhead testifies that it exerts a

pressure upon the hide, how great in pounds we do not know. We understand him to say that by passing the hide through the machine several times all parts come sooner or later under the board, and thus substantially all the stretching is done by its aid.

Infringement of the plaintiffs' first claim is not escaped by the use of this pace of board, for, although it causes the defendants' machine to approach more nearly the old belt-stretcher, still the operation must remain, to some extent at least, like that of the patent. The manipulation with the table and grooves must enable the operator to use all the elements of the first claim upon two-thirds of the width of the hide each time it passes through the machine, and it depeuds altogether on the thickness and stability of the board whether the whole operation is or is not copied. The very presence of this removable board is evidence that the old machine is not satisfactory for the new use.

The argument that a machine must be automatic in order to be patentable is not sound. A piano is not automatic, nor is any tool or implement intended for use by hand, but improvements in any such tool used in an art or industry are patentable.

In the second claim the combination is limited to a laterally yielding stretcher and a laterally yielding friction table or beam. As one bar, however, in the defendants' machine is fixed, and the other has a motion up and down, we find no infringement of this claim.

The third claim appears to be for the exclusive right of using the machine referred to in the first claim, and as the defendants have used such a machine they have infringed the third claim, and we do not at present see how it could be infringed otherwise than by infringing the first claim.

[United States Circuit Court-Southern District of New York.]
REAY V. RAU.

Decided March 14, 1883.

23 O. G., 1928.

1. INFRINGEMENT--EXPIRATION OF PATENT-LICENSEE.

The vending of a machine after the expiration of the term of a patent which was built during the term in accordance with an understanding between the constructor and the patentee is not an infringement.

2. SAME-SAME-EVIDENCE.

It is not sufficient, to make out a case of an infringement, that the defendant, called in rebuttal by the plaintiff, gave one answer, tending to establish a particular infringement which had not been the subject of previous testimony, and which answer is inconsistent with his uniform denial of having made the infringing device during the life of the patent without the knowledge and permission of the patentee.

Mr. Arthur V. Briesen for the plaintiff.

Mr. Edward Fitch for the defendant.

SHIPMAN, J.:

This is a bill in equity praying for an injunction and an account, and is founded upon the alleged infringement by the defendant of reissue letters patent No. 2,529, dated March 26, 1867, and of original letters patent No. 41,395, dated January 26, 1864, each of said patents being for improvements in envelope-machines, and each having been issued to George H. Reay, the plaintiff's testator, as inventor. The original of the reissued letters patent was issued August 25, 1863. The bill was filed October 11, 1880, after the expiration of No. 2,529, and shortly prior to the expiration of No. 41,395.

The bill does not allege that the defendant has for sale, or was using, or was intending to use or to sell any infringing machines which were made during the term of the patent No. 2,529 in infringement of it. If such an allegation had been made, it would have been untrue. When the bill was filed, the defendant, who is a manufacturer of this class of iron work, had no patented machines on hand. When the patent ex pired he had one machine in stock, which he had made in accordance with the understanding and the usual course of business between the patentee and himself that he should keep machines in stock, so that orders might be promptly filled. The facts of this case do not bring it within the decision of Judge Wheeler in Diamond Rock Boring Co. v.

Sheldon (1 Fed. Rep., 870), but are within his decision in Diamond Rock Boring Co. v. Rutland Marble Co. (2 Fed. Rep., 355). There are in this branch of the case no allegations upon which to base a prayer for an 'injunction against the defendant's use or sale of machines. There is therefore no occasion to inquire whether the first-named decision is inconsistent with the subsequent opinion of the Supreme Court in Root v. Railway Co. (105 U. S., 189). Infringement of patent No. 41,395 was not shown.

In rebuttal of the defendant's testimony the plaintiff called the defendant, and now insists that he, by one answer in regard to a date, es tablished an infringement which had not been the subject of previous testimony, and that this answer is to overthrow his uniform denial of her having made the infringing device during the life of the patent without the knowledge and permission of the patentee. Such testimony is not sufficient to make out a case of infringement.

The bill should be dismissed.

[Supreme Court of the United States.]

HOFFHEINS, APPELLANT, v. RUSSELL ET AL.

Decided January 22, 1883.

23 O. G., 2030.

1. CERTAIN CLAIMS OF HoffheiNS'S HARVESTER PATENTS, REISSUES Nos. 2,224 AND 2,490, CONSIDERED.

Claims 1, 8, 9, 11, 12, 14, 16, and 19 of reissue letters patent No. 2,224, granted April 10, 1869, to Reuben Hoffheins, for an improvement in harvesters, the original patent (No. 35,315) having been granted to him May 20, 1862, and claims 1, 2,6,7, and 9 of reissue letters patent No. 2,490, granted February 19, 1867, to Reuben Hoffheins, for an improvement in harvesters, the original patent (No. 40,481) having been granted to him November 3, 1863, and reissued in two divisions, one (No. 1,888) February 28, 1865, and the other (No. 2,102) November 7, 1865, and No. 2,490 having been issued on the surrender of No. 2,102, considered. 2. THE DIFFERENCE BETWEEN THE SPECIFICATIONS AND the Drawings or No. 35,315 (THE ORIGINAL) AND THOSE OF NO. 2,224 (THE REISSUE) POINTED Our New Matter.

There is no warrant in No. 36,315 for locating the rake-support, or any part of it, on the finger-beam, and, as each of the above-named claims of No. 2,294 has as an element either a rake or a rake and reel mounted on or attached to the cutting apparatus or the finger-beam, No. 35,315 could not lawfully be reissued with those claims.

3. THE DIFFERENCE BETWEEN THE RAKING APPARATUS AND RAKE-SUPPORT OF No. 2,224 AND THOSE OF THE DEFENDANTS POINTED OUT.

The defendants devised a new arrangement of rake, which made it possible for them to mount their rake-support on the heel of the finger-beam, where the rakesupport of No. 2,224 could not be mounted. The difference between the yielding belt-tightener of No. 2,224 and the defendants' arrangement for driving the raking apparatus pointed out, and the latter held not to be a mechanical equivalent for the former.

4. THE DIFFERENCE BETWEEN THE ORIGInal Patent (No. 40,481) ANd its Re188UE (NO. 2,490) POINTED OUT--NEW MATTER.

No. 40,481 negatives the idea of mounting the rake-post on the finger-beam, while an element in claim 1 of No. 2,490 is the mounting of the raking mechanism on the finger-beam. In No. 2,490 a driver's seat mounted on the main frame, so as to enable the driver to ride on the machine while the rake is in operation, is an element in claims 1 and 9, while the driver's seat in No. 40,481 is not and cannot be in such a position that the driver can ride on the seat while the rake is in operation.

5. Same—The Difference Between the Raking Mechanism or Rake-Post of No. 2,490 AND THOSE OF The DefendaNTS POINTED OUT.

The raking apparatus is an element in claims 2, 7, and 9 of No. 2,490; and, in view of the differences between the two machines in the construction of the raking mechanism and the arrangement and location of the rake-post, the rake of claims 2, 7, and 9 is to be construed to be such a rake, and one so arranged on a rake-post so mounted, as is shown and described in the specification, and thus does not include the defendants' raking mechanism or rake-post.

6. THE DIFFERENCE BETWEEN THE DRIVING DEVICE oF No. 2,490 and that of THE DEFENDants Pointed OUT.

The driving device in claims 6 and 7 of No. 2,490 held not to include the defendants' driving device, the former being an extensible tumbling shaft and the latter a chain-belt with open links, and patentability or invention inhering only in the device and not in its location.

7. NO INFRINGEMENT.

No cause of action is established against the defendants on either of the patents sued on.

Mr. George H. Christy and Mr. J. H. B. Latrobe for the appellants. Mr. George Harding and Mr. John R. Bennett for the defendants. APPEAL from the circuit court of the United States for the northern district of Ohio.

Mr. Justice BLATOHFORD delivered the opinion of the court:

This suit is brought for the infringement of two reissued letters patent granted to the appellant. One (No. 2,224) was issued April 10, 1866, for an improvement in harvesters, the original patent (No. 35,315) having been issued to him May 20, 1862. The other (No 2,490) was issued February 19, 1867, for an improvement in harvesters, the original patent (No. 40,481) having been issued to him November 3, 1863, and reissued in two divisions, one (No. 1,888) February 28, 1865, and the other (No. 2,102) November 7, 1865, and No. 2,490 having been issued ou the surrender of No. 2,102.

No. 2,224 contains nineteen claims and No. 2,490 contains nine claims. In No. 2,224 claims 1, 8, 9, 11, 12, 14, 16, and 19, and in No. 2,490 claims 1, 2, 6, 7, and 9 are alleged to have been infringed. The circuit court rendere l a decree that the appellees had not infringed any invention of which the appellant was the original and first inventor, recited in the two reissues sued on; that No. 2,224 "contains inventions different from that contained" in No. 35,315; that No. 2,490 contains inventions different from that embraced in No. 40,481; that the said reissues, respectively, are therefore void, and that the bill be dismissed. From this decree this appeal is taken.

In No. 2,224 the claims in question are these:

1. A sweep-rake which is mounted upon the heel of the finger-beam proper, or upon the inner front corner of the platform of a harvester which has its cutting apparatus and platform hinged to the draft-frame, all in such manner that the rake-arm sweeps the platform from front to inner side, and maintains a correct position in relation to the finger-beam and platform during the rising or falling movements thereof on the joint or joints by which the finger-beam is connected to the draft-frame, substantially as set forth.

8. In a harvesting-machine which has its cutting apparatus hinged or jointed to the main frame in such manner as to allow it to conform at both ends to the undulations of the ground, and a rake mounted upon the said cutting apparatus, or upon the platform thereof, I claim so constructing and arranging the several parts that the support of the rake can occupy a position outside of the inner drive-wheel B, or a position which is between the point of suspension A and the outer divider G, and can also be hung or be suspended below the draft-frame, substantially as described.

9. Effecting a combination of a rake and reel located substantially as described and ■ finger beam and platform with the main frame by means of a hinged draw-bar, b, and hinged brace, I, or hinged suspender, f, and an extension-bracket, 2, or their equiv alents, substantially as and for the purposes described.

11. Preventing a too sudden or abrupt deflection of a rake and reel mounted upon