(after stating the nature of the case as above). The invention covered hy the appellant’s patent relates to a class of machines then in quite common use, and of which there were various forms of construction. Many of them had been patented in this country, and some of the patents are shown in this record. They
/' “Such trestles constitute an expensive part of the apparatus, and, as they span the> trench at short intervals, they form obstructions which interfere in a measure with the workingmen.”
He states the objects of his invention to be-
“To dispense with the trestles heretofore employed, and thus reduce .the cost of the apparatus: also, to so construct the apparatus as not to interfere with the workingmen or the sheeting used for preventing caving in of the .walls of the trench; and, finally, to simplify the tackle for operating the hoisting and conveying mechanism.”
The following are the drawings which accompany his specifications:
Fig. 1 is a sectional elevation of the apparatus. Fig. 2 is an end view of the conveying car. Fig. 3 shows the hoisting apparatus lo-cated on a carriage having wheels running on a track transversely across the conveying car, to facilitate dumping out at the side of the track or on one side of the central line of the trench. Fig. 4 represents a det ail of construction. The hoisting cable, J, is attached at one end to the drum on which it winds, and extending over pulleys, k and k1, and running under the vertically moving pulley, k2, is secured at the other end to the carriage at k4. The draft and stay cable, M, is attached at one end to the drum, D1, on which it winds, and extending over the pulleys, k and N, and around the pulley, O, which is fastened to a rigid post, runs back to the carriage, to which it also is secured at k4. The primary purpose of these cables is the one to hoist and lower the bucket; the other,
“By elevating the cross timbers and platforms of the conveying car, as shown in the drawings, the car clears the sheeting which usually projects above the trench when the same is started, and the danger of the car striking the workingmen in passing back and forth over the trench is also avoided.”
He also states, in explaining the operation of the hoisting apparatus, that:
“The hoisting bucket, in being raised and lowered, passes through the aperture formed by the open base frame and the raised frame of the car.”
By the “open base frame” we understand the space under the platform, Gr, and the cross-bars, e2, is meant, and by the “raised frame,” that part of the car which is above the “open base frame.” Other parts of the specifications describe other features of the patent not involved; and it is believed that the drawings, with the foregoing explanations, are sufficient for the purposes of the present inquiry.
We have already referred to the recognition by the patentee of the pre-existing art. It would be tedious to go through with a detail of all the patents offered in evidence by the defendant to show the extent of the progress which the patentee was- bound to acknowledged We will refer to some of them. In 1871 patent No. 117,778 was granted to' Hoffman for a machine for hoisting and carrying weights or heavy bodies. This showed an elongated trestle, in the upper part of which were built tracks running lengthwise. On these tracks was a carriage with wheels. The carriage frame descended below the tracks, and in that part of it was a pulley over which ran a cable to operate the hoist. When the load was lifted from below to the carriage, the hoisting apparatus was locked to the carriage, and the carriage, with its load, was drawn by the cable- along the track, lengthwise of the trestle, to the place of deposit. This apparatus does not show a track with sufficient elevatiop to carry the load clear of men working below, nor is the trestle movable on tracks. In 1883 a patent, No. 277,403, was issued to Baldwin for a hoisting device for elevating coal, ore, and other like material. This appears to have been adapted, also, to the purpose of excavating wells and carrying the earth away from the opening. It shows a frame standing on wheels, and in the upper part of the frame was a hoisting apparatus. Tracks were laid, on which the wheels were to run. In operation the bucket was hoisted by the hoisting apparatus into the opening in the lower part of the frame, and thereupon the frame, with its load, was moved off on the track to the place of deposit. This patent, also, did not contemplate carrying the load at an elevation. In 1885 a patent, No. 333,456, was.
It is manifest that the structures shown by former patents anticipated Moore’s in all other features except the open base of the conveying car and the means of carrying the cables aloft. There was nothing new in the hoisting apparatus contained in the car. The
“In a foisting and conveying apparatus, tlie Combination; with tracks arranged lengthwise of the trench to be excavated, of a conveyor car running upon said tracks and provided with an open base frame and an open raised frame, forming an aperture for the passage of the hoisting bucket, a platform arranged on said frame adjacent to said aperture, and guide wheels mounted oh the raised frame above said platform, and hoisting and draft cables running oyer said guide wheels, respectively, whereby such cables are supported clear of the operator standing upon said platform, substantially as set forth.”
The second claim (there are but two) includes in a combination the peculiar attachments and adjustments of the cables. The infringément of this claim is not charged.
The defendant’s machine, which is charged to be an infringement, is shown by the accompanying diagram.
It contains.a car running lengthwise of the trench and carrying the' hoisting apparatus; but the tracks on which it runs are supported by a trestle. This, though, was an old method of construction,. which'Moore essayed to'improve. There is no “open base frame,” as in the Moore patent (which there must be in order to exhibit the invention), open at the ends of the frame, having reference to the direction of the car when in motion. The axles of the wheels of the car run from side to side across the trench, and there is also an end piece in the bottom timbers of the car, which extends across the trench, thus closing in the bottom of the frame. In the first claim of the Moore .patent the conveying car is stated to be one having an “open base frame;” and it would have defeated the object of his invention to have built his frame without an open base. Moreover, having thus described his conveyor in his claim, he puts it -forward as a constituent of his invention, and he could not now say that the kind of frame he will employ is indifferent. Keystone Bridge Co. v. Phoenix Iron Co., 95 U. S. 274, 24 L. Ed. 344; Fay v. Cordesman, 109 U. S. 408, 3 Sup. Ct. 236, 27 L. Ed. 979; Brown v. Manufacturing Co., 6 C. C. A. 528, 57 Fed. 731; Manufacturing Co. v. Randall, 43 C. C. A. 578, 104 Fed. 355.
Besides all this, if he were permitted to construe his claim as including tracks built on trestles and a conveyor which was not open at .the. ends, so as to admit of its safe passage over the trench lining and the h'eáds'.of the workingmen, it would destroy his patent, so far as‘that claim) is concerned;* for-.it would, reduce -it to the prior art.
If the Moore patent had preceded all other devices for performing the work for which it was intended, it might very well he that he could bring under tribute all who should enter his domain, and build, within the wide four corners of his invention; or, if he had made a large advance in a new direction in an art not new, he would have been protected to the extent of the limits of his large invention. These are propositions which were applied by the supreme court in Morley v. Lancaster, 129 U. S. 263, 9 Sup. Ct. 299, 32 L. Ed. 715, and by this court in the cases of McCormick Harvesting Mach. Co. v. Aultman, Miller & Co., 16 C. C. A. 259, 69 Fed. 371, and Bundy Mfg. Co. v. Detroit Time-Register Co., 36 C. C. A. 375, 94 Fed. 524. It is contended by counsel for the appellant that Moore’s invention is of a primary character, and should have the benefit of the liberal
It is quite clear to us that the decision of Judge Coxe, in the case of Moore v. Marnell (C. C.) 93 Fed. 467, a case founded on the same patent, which has been cited and considerably relied upon by the appellant, was controlled by the supposition, arising from the inadequate record before him, that Moore’s invention covered an extensive field, which entitled it to a liberal construction; but in the present case it is made clear that, while the invention was both novel and useful, it had no wider scope than the special feature of the construction which he devised to carry his car and the apparatus it contained safely over the heads of the employés and the linings of the trench, and at the same time saving the expense of a trestle on which to lay his track. If the base frame of the patent were cut out, and the raised frame dropped to the wheels, we should have nothing new in it. His specifications -would be unintelligible and the substance of his invention eliminated. The defendant does not use an open base frame conveyor, but a combination of elements found in the old art, assembled to perform the samé service theretofore performed by them, and, therefore, does not infringe the complainant’s patent.
Having reached this conclusion, it is unnecessary to inquire whether the further point made by defendant’s counsel, that the fact of the defendant’s track being carried on trestles v^hile the complainant’s rests upon the ground, as counsel insists it must to fulfill the patent, would relieve him from the charge of infringement, is well taken or not. Nor do we need to advert to any supposed modification of the invention patented to Moore by what transpired during the progress of his application through the patent office. Giving his first claim all the scope that the existing art will admit, we are quite clear that the charge Of infringement is not made out. Tbe decree of the circuit court dismissing the bill will therefore be affirmed.