Opinion of the Court.

machine shown in the proof which embodies this idea is that patented by Isaac Constant, in November, 1851. It is a tongueless straddle-row cultivator, with all the elements for a working machine of that description, and so arranged as to be what may be called in this art self-sustaining, that is, it will stand upon its own supports. This was also done by Arnton Smith in January, 1855; by Whitely in 1860 to 1865; by E. W Vangundy in February, 1864; by Pratt in October, 1864; and by Adam Young in November, 1866. All these show cultivators constructed without a tongue, with two plow-beams held together by a yoke, each plow drawn by its own draft animal and operating independently of the other."

The Constant patent here referred to is in this record and shows a tongueless cultivator, in which the inside beams move vertically and laterally, independent of each other, and each draft animal is hitched to its own side, while the side supports are beams to which two cultivator shovels are applied.

The Smith machine is a tongueless cultivator, in which two mold-board plows are connected together by a bar in front, not arched up in the centre. A horse is to be attached to each plow, and the coupling so made as to allow an independent motion.

Of the Pratt patent Judge Blodgett says that Pattee's arched and jointed axle is fully anticipated by it in form of construction, function and mode of operation. This Pratt patent shows a flexible, parallel, tongueless cultivator, in which each horse pulls his own side of the machine.

The patent to William Tasker of 1859 has an axle hinged to draft or spindle arms, having projecting bars so coupled that the wheels are retained in the line of progression by the draft of the animals. Tasker's fifth claim is: "The connecting of the wheel stumps to a vertical spindle or spindles, capable of turning freely in vertical collar bearings or sockets, as herein before described." The description as to this part of his machine is thus: "J J are adjustable stumps for carrying the running wheels K K. These stumps pass through the overhanging lugs L L, formed at the top and bottom of each of the round spindles M M, which are contained in the vertical

Opinion of the Court.

sockets N N (oue of which is shown in section in figure 3) of the cast-iron frame C, and are free to turn therein, thereby enabling the stump of each wheel to swivel or lock round when turning the plow, as shown by the dotted lines in figure 2."

If Pattee's claim were merely for a combination of an axle, having an elevated central portion, with the wheel-spindles, so that the draft of the team controls the direction of the wheels, the Tasker patent anticipates it, but the combination differs from that in the arrangement by which the evener-bars are carried inwardly so as to connect with the arch or central part of the axle, making the axle a part of the evener so combined, and thus maintaining the parallelism of the wheels.

Appellee's machine does not have "the wheel-spindles or draft-plates" of the patent, nor the axle A with side-plates B, but it uses the Pratt axle of 1864. Nor in appellee's machine is the parallelism of the wheels maintained by the draft devices, nor are they retained in the line of progression by the draft of the animals, but turn as the animals may pull. The beam-frames of appellee's machine have nothing to do with the wheel-spindle. The snugs of Pattee's have nothing to do with the plow-beams. The differences are so great that interchangeability of the parts of the two machines would be utterly out of the question.

In our judgment the reissue if valid, when limited to what alone could be claimed as new, is not infringed by appellee. The first and second claims of the Kendall patent No.、 174,684 are as follows;

"1. The runners E, arranged to support the axle of a tongueless cultivator, with the plows D suspended therefrom, in manner substantially as described.

"2. The combination of the runners E, plows D, hook-rods F, and axle A of a tongueless cultivator, substantially as and for the purpose specified."

As stated on behalf of appellant, "the second claim in said patent is a claim for substantially the same combination as recited in the first claim, but differently worded from the first claim," and as the hang-up devices are necessary for the suspension of the plows, the two claims may be treated as one.

Opinion of the Court.

The invention is said in the specifications to consist of the use of runners attached to the truck-frame or axle in such manner that they will not interfere with the operations of the machine when in use, and will act as supporting runners for the axle when the rear ends of the plows are elevated and suspended thereon; and, second, in the combination of hooks or rods for suspending the plows on the axle, with said axle and plows.

The drawings show the axle, the wheels, the draft-plates, and the plows of an ordinary cultivator of the tongueless class. The runners, constituting as alleged the "main feature" of the improvement, are journaled on the outer ends of the spindles of the wheels, midway their lengths, and their forward ends curved inward, and secured to the draft-plates by a threaded end and nut, while their rear ends are extended backward and downward and curved in such position that when the plows are in operation in the field and the axle upright, the rear ends of the runners will be above and free from the surface of the ground, and when the rear ends of the plows are elevated and suspended by any means from the axle, the rear ends of the runners will rest upon the ground and support the axle from being pulled backward and downward.

In short, as in the machines with a tongue, the plows are raised up and suspended from the tongue to keep them off the ground, so in the tongueless machine the plows are raised up and hooked on to the axle, and, to prevent their falling backward with the axle, runners are provided, connected with the axle and the hitching-arm of the machine, which sustain, the axle when the plows are hooked on, but are themselves raised from.contact with the ground by the draft when the plows are in use.

The runners are described as "journaled on the outer ends of the spindles," but it is also stated that they "may be attached rigidly to any suitable part of the axle at one or more points of attachment, and extend backward in the same manner as described.

These runners having the wheel-spindle or axle for their fixed point of support, are necessarily rigid and unyielding, and work

Opinion of the Court.

automatically, their rear ends being raised by the pulling of the team and lowered by the weight of the plow-beams when placed on the hooks.

The rigidity of the runners and the resulting automatic action are the essential characteristics of the patent, for tongueless wheel cultivators with runners to keep the plows off the ground were common and well known in the art when it was issued.

It is contended by appellant that the true state of the art is contained in the prior patents of Poling of 1872 and Robertson of 1875, and while many others are exhibited, an examination of these will, we think, sufficiently establish. the conclusion just expressed.

Poling's patent is for a tongueless cultivator, provided with runners, which are placed under the beams by hand, when the plows are being transported, and which are taken out and carried on the beams when the plows are in operation.

Robertson's patent is for a tongueless cultivator, with draftplates, wheels and beams, and runners pivoted to the beams near the axle, and arranged with set-screws to lock the plows up and let them down. It is immaterial to the operation of the runners whether they act directly on the plow-beams or through the axle.

In appellee's machine the runner is arranged upon the end of an arm which projects backward from the axle. When the plows are in use the runner is turned up out of the way. When the runners are used the plows are raised and the runners prevented from turning up by a catch on the arm.

This machine does not contain runners constructed as the Kendall runners are, in the rigid form, and operated by the draft of the team to keep them off, or by the weight of the plows to keep them on the ground, and so lacks the distinctive features of the Kendall patent.

It is not automatic, but requires manipulation every time the use is changed.

When the runner is put in use its rear extension is turned down by hand, and a locking-dog, hung within a slot in the arm, turned into position. When the runner is not to be used,

Opinion of the Court.

it must be moved so as to release the dog and permit it to be thrown up, and the arm is then thrown upward and forward, the dog being allowed to drop so as to afford a support for the

runner.

This jointed runner with a, lock cannot be held to be the Kendall rigid bar.

We agree with the Circuit Court that there is no infringe

ment.

Patent No. 187,899 is described as being for a new and improved mode of constructing the arch or central and main part of straddle-row cultivator beam-yokes or axles, and of connecting the side parts thereto, and the invention as consisting "in constructing said arch of curved adjacent bars of iron or steel, to the ends of which may be attached, by riveting, the cast-iron parts for securing thereto the plows and wheels, and which may be strengthened by the use of stiffening bolts."

The use of parallel bars is exceedingly common, and so far as the attachment of the bars to the end plates is concerned there is nothing new in that method.

The Burnham and Lathrop patent of 1866 shows a yoke connecting the plow-beams together, made with two parallel bars with end castings, put together with one bolt near the rear ends of the beams instead of with two bolts at the front ends, as in appellant's machine. The specification says: "The two frames G G are connected by an arched or semi-circular yoke H, the ends of which are pivoted to bars II, which are secured on the tops of the plow frames GG by pivots e, the bars being allowed to turn freely on the pivots e."

The Louden patent of 1876 has an arched axle of tubular wrought iron, gas-pipe being stated to be very suitable, having end castings attached rigidly or cast thereon.

The Barr patent of 1872, and the Miller patent of the same year, show arched axles or beam-yokes of two or more parts. The Perkins patent of the same year shows the beams themselves made of parallel curved bars.

What is sought in all these patents is strength and lightness, together with cheapness and durability, but they are simply modes of construction. And that described in this patent