The claim of the Locke patent is a claim to a combination of mechanism, and is as follows:
“The combination of the sliding frame, B, provided with the curved guides, V, the pivoted frame, D, the spring, H', the shafts, E, and the cutter-heads and cutters, P, G-, with each other, and witli the uprights, C, and the main frame, A, substantially as herein shown and described.”
In view of the state of the art, and of the claims made by Locke in his application and rejected, this claim to a combination must be construed strictly, and every element in it must be found in the defendant’s structure to constitute infringement. The spring, H/, and the slidingframe, B, provided with the curved guides, B', are not found in the defendant’s machine; nor is any one of them, or any substantial equivalent for it, found there.
As to the Doane and Bugbee patent, it is admitted that the first three claims of it are infringed, if they are valid. The attempt of Locke to make a structure embodying these three claims was a mere experiment, and was abandoned, and not resumed. It did not contemplate the use of the spoke as a guiding element. The machine of Doane and Bugbee was completed, and practically and successfully worked, prior to February, 24, 1879. The two machines on which Allen worked before July, 1879, were neither of them put to any practical work, and each of them was destroyed as useless. He did not commence till April, 1879, the construction of the successful machine which he completed. The fact that when Allen applied for his patent, his claims were rejected as anticipated in the Doane and Biz-bee patent, and he did not apply for an interference, is of weight to show that he did not then claim priority to Doane and Bugbee, because he accepted a patent without the rejected claims.
There must be a decree dismissing the bill as to the Locke patent, and awarding an injunction and an account of profits and damages as to the first three claims of the Doane and Bugbee patent, without costs to either party to and including the hearing. The question of subsequent costs is reserved.