APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF WISCONSIN.
MR. JUSTICE SHIRAS, after stating the case as above, delivered the opinion of the court.
John M. Boyd, the appellant, filed his application on October 25, 1882, and, after several amendments, letters patent were granted him on June 17, 1884, and numbered as No.
,687.The specification discloses that the invention has relation to improvements in hay elevators and carriers, and consists in the peculiar construction of the several parts and in their combination and arrangement. There are fourteen claims, of which twelve appear to be for combinations of parts, and two for specific devices which are claimed to be novel.
It clearly appears that Boyd was not a pioneer in this department of machinery. Many inventors had preceded him, and many patents had been issued for improvements in hay carriers in form and purpose similar to those described in Boyd's specification. We think the case is one where, in view of the state of the art, the patentee is only entitled, at the most, to the precise devices mentioned in the claims.
It is conceded that the defendants, before this suit was commenced, were manufacturing and selling hay carriers made under the Strickler patent, No. 279,889, dated June 19, 1883; and it is claimed, on behalf of the appellant, that, as the application for the Strickler patent was filed on May 15, 1883, several months after Boyd's application, the Strickler patent furnishes no defence to the defendants if the machines made and sold by them infringed any of the Boyd claims.
Upon the assumption that, owing to the previous condition of the art, Boyd is to be restricted to the exact and specific devices claimed by him as novel, we do not deem it necessary to determine whether either Boyd or Strickler invented anything, because we think that the appellant has failed to show that the defendants have used the particular devices to which Boyd can be considered entitled. Our discussion, therefore, will be confined to the question of infringement.
As both applications were pending in the Patent Office at the same time, and as the respective letters were granted, it is obvious that it must have been the judgment of the officials that there was no occasion for an interference, and that there were features which distinguished one invention from the other. In Pavement Co. v. City of Elizabeth, 4 Fish, 189, Mr. Justice Strong said: "The grant of the letters patent was virtually a decision of the Patent Office that there is a substantial difference between the inventions. It raises
the presumption that, according to the claims of the latter patentees, this invention is not an infringement of the earlier patent." It would also seem to be evident that, as the purpose of the invention was the same, and as the principal parts of the respective machines described were substantially similar, it was also the judgment of the office that the distinguishing features were to be found in some of the smaller and, perhaps, less important devices described and claimed. Burns v. Meyer, 100 U.S. 671.
We find it useful to adopt the following description of the Boyd invention, given ...