I recognize the fact that the time allowed for duration of the Bowers patents is running, and, if he is to have the benefit which the patent laws were intended to confer upon inventors, his rights should be protected during the life of his patent. In a closely contested case several years must necessarily pass before a final adjudication in a court of last resort can be expected. The circuit court of appeals gave to the Bowers patents a broad construction, and held machinery constructed according to the specifications of the Von Schmidt patents to be infringements. In comparing the different machines, it is very difficult for me to find infringement in the Von Schmidt machine, and not in the dredger Oakland. Upon this hearing it has been shown that part of the public work which the defendants have under contract to be done by use of the Oakland, has been completed, and, upon giving a bond for damages, what remains may be completed, so that there is not the danger of serious loss and irreparable injury to the defendants and inconvenience to the public which at the time of the first hearing appeared to exist. It is plain that the complainants are threatened with and likely to suffer irreparable injury by competition in bidding for work during the short time remaining before their rights under the Bowers patents shall expire, if during that time their competitors shall be free to use such a machine as the dredger Oakland. These considerations have led me to the conclusion that justice and equity require the granting of the application for an injunction. at this time, with provisions for protecting rights which may be found in the defendants by requiring the complainants to execute a bond with sufficient sureties, conditioned to pay all damages caused by the injunction, if it shall be finally adjudged to have been improvidently issued. The work under contract at Everett and Swinomish slough, however, will be excepted from the injunc tion if the defendants will give a bond in the sum of $5,000, conditioned to secure payment of any damages which the complainants, or either of them, may recover on account of said work. VON SCHMIDT v. BOWERS.1 (Circuit Court of Appeals, Ninth Circuit. January 4, 1897.) No. 232. 1. PATENTS-VALIDITY-INFRINGEMENT. The Bowers patents, No. 318,859 and No. 355,251, for hydraulic dredging machines, construed, and held valid and infringed as to claims 10, 16, 25, 53, 54, and 59 of No. 318,859, and claims 13, 17, and 18 of No. 355,251, by machines constructed under the Von Schmidt patents, No. 277,177, No. 300,333, and No. 306,368. Bowers v. Von Schmidt, 63 Fed. 572, affirmed. 2. SAME-EXTENT OF CLAIMS-PIONEER INVENTION. The Bowers patents disclose and cover inventions of a pioneer character standing at the head of the art, and their claims are entitled to a broad and liberal construction. 1 Rehearing denied. 8. SAME-FUNCTIONAL CLAIMS. Said claims are not functional in form, nor are they claims for results, nor are they limited to any particular form of construction of the ele ments which make up the combinations, but they are broad generic claims, without any limitation as to the form of construction of the particular elements; and all subsequent machines which employ substantially the same means to accomplish the same result are infringements, notwithstanding the subsequent machine may contain improvements in separate mechanism which go to make up the machine. 4 SAME-AGGREGATION. The Bowers claims are not mere aggregations, because the result produced is the product of the combination in which each element affects the action of all the others, and all of the elements co-operate in the one result of severing by the forward and side action of the machine the material in place where it is not wanted, and depositing it in another place where it is wanted. SAME-GENERIC AND SPECIFIC CLAIMS. A pioneer inventor is entitled in his patent to a generic claim, under which will be included every species of the genus; and, in addition thereto, he is entitled in the same patent to make specific claims for one or more species of the genus. 6. SAME-ROTARY EXCAVATOR WITH INward DelivERY. The terms "inward delivery," in a claim for an excavator, have direct reference to the mechanism itself, and cannot properly be limited to the description or effect of such mechanism. The clear meaning of a claim to "an excavator having inward delivery" or "with inward delivery through Itself” is an excavator so constructed as to produce an inward delivery. 7. SAME-VON SCHMIDT EXCAVATOR. The Von Schmidt excavator shown in his patents Nos. 277,177 and 300,333 is a rotary excavator with inward delivery to a nonrotating suction pipe, within the above definition. 8. SAME ORIGINALITY OF BOWERS' INVENTION-DATE OF SAME. Bowers did not derive the ideas contained in his patents from Von Schmidt, or any model or machine of Von Schmidt, but he was the original and first inventor thereof, and the date of such invention is July 13, 1864. 9. SAME ANTICIPATION-TIME OF. The defense of anticipation, to be successful, must be established as of a date anterior to the patented invention, not merely prior to the application for or date of the patent. 10. SAME-EARLY DRAWINGS AND MODELS. As against the defense of anticipation, the patentee may show the fact of invention by drawings, sketches, models, or any other competent proof. 11. SAME-ABANDONMENT-REASONABLE DILIGENCE-STANDARD Of Proof. Delay in applying for a patent after an invention is made will not constitute abandonment, where the inventor has used reasonable diligence to perfect the invention, and avail himself of its benefits; and there is no general standard by which such diligence is to be established, but it must be reasonable under all the circumstances of the particular case. Tested by this rule, held, that Bowers did not abandon his invention. 12. SAME-FAULT IN ORIGINAL MACHINE. The fact that the first machine built by a patentee, whose patent is sued on, was not successful in operation, is unimportant, and no reason for denying him relief, especially where his subsequent machines have proved successful in practice. Appeal from the Circuit Court of the United States for the Northern District of California. This was a suit in equity brought by Alphonzo B. Bowers against Allexey W. Von Schmidt to restrain infringement of letters patent No. 318,859, for "Dredging Machine," and No. 355,251, for "Improvements in Hydraulic Dredging Machines," both issued to Alphonzo B. Bowers, the first on May 26, 1885, and the second on December 28, 1886. The lower court sustained both patents, and found infringement of claims 10, 16, 25, 53, 54, and 59 of patent No. 318,859, and of claims 13, 17, and 18 of No. 355,251. 63 Fed. 572. The following are copies of the drawings annexed to the patent No. 318,859: |