On Rehearing.
On rehearing as to claims 4, 5, 6, 12, 15, 23, and 30 of the Joy patent No. 780.664, 1 make the following modifications in my decision heretofore filed herein :
The line-spacing mechanism of the prior art was not strictly under constant stress, in that its motion was not caused by a friction drive-connected with the motor, and it was not controlled by a separate escapement. The movements of the line-spacing mechanism of the prior art were incited by the energy or power of the spring in the letter-spacing mechanism. In the judgment of the patentee it was important to put the three essential mechanisms under constant stress to attain the desired intermittent movements independently of each other, the idea being to avoid the waiting by one element for the action of the other and to operate each element separately.
Claims 1- to 6 in controversy do not include in the combination the words “constant stress” as specified in claims 1 to 3, but, nevertheless, the functions of the three mechanisms, the line-spacing, paper-feeding, and letter-spacing, consist in the structural ability to actuate each thereof independently of the other, and this result could only be secured by following the procedure pointed out in the specification. This was accomplished by carefully arranging the mechanisms so as to enable driving each of them from a single local battery and rotating the shaft by a friction drive connected therewith, from which the required stress was obtained to actuate such elements, and, moreover, to successfully operate them escapements were provided for each element. All these features are embodied.in the defendant’s machine. It makes no difference whether a friction drive connected to the driven shaft or a dutch mechanism provides the constant stress to actuate the essential mechanisms, for, as already stated, the term “constant stress” includes any device which attains the object of the claims under consideration.
Claim 12, which is not limited to any mechanism under constant stress is thought broad enough to include the prior Wright patent, No. 466,858. If the words “constantly acting source of power” meant *480the continuously revolving driven shaft and not, as claimed by the defendant, the electric motor, I would not alter my previous holding regarding this claim, but that the “constantly acting source of power” is in fact the motor appears clearly by Mr. Foster’s testimony. In answer to a cross-question, he testified that the motor which drives the train of gears and the shaft 33 is the constantly acting source of power. He also testified that in the Wright machine No. 3 the paper was continuously fed without feeding the type-wheel as long as the motor continued to act. Although the Wright machine does not disclose the independent mechanism under constant stress of the patent in suit nor the separate escapements, yet in its operation it employs a vertical shaft under constant stress, with an escapement by which its rotation is intermittently stopped, and by which the paper is continuously fed to the type-wheel by motor power. It is claimed by complainant that the constantly acting source of power of claim 12 was the continuously revolving driven shaft; but complainant’s expert witness, Mr. Foster, was of a different opinion, and I therefore conclude that claim 12 is anticipated by the Wright machine No. 3.
Claim 15 refers to the type-wheel and shaft, together with two bell-crank levers which are arranged to form a toggle, and a spring connecting the levers. The defendant’s machine does not have complainant’s toggle nor spring connecting the two bell-crank levers; it uses a spring which operates to stiffen the toggle arrangement, while in complainant’s structure the spring apparently operates to break the toggle. Inasmuch as the claim does not specify the feature of line-spacing, and in view of the prior Merritt & Joy patent No. 558,506, it is not entitled to a scope of such latitude as to include the defendant’s construction.
Claim 23 is for a combination of the paper-feeding mechanism controlled by a rock shaft and levers. The claim omits to specify the feature of constant stress, in connection with the paper-feeding mechanism, although it specifies that the levers are under constant stress. This claim, in my judgment, must be limited to a paper-feeding mechanism under constant stress of friction connection or its equivalent, and, reading such limitation into the claim, the defendant infringes the same.
Claim 30 is for a combination of paper-feeding mechanism and toggle-acting lever under constant stress of friction connection. If we read into the claim by implication, as I think we must, the limitation of claim 23, such claim is not invalid, and, in view of the evident betterment of a concededly imperfect apparatus, such claim is believed to involve invention.
For the foregoing reasons, the decree must recite the infringement of all the involved claims of patent No. 780,664, except claims 12 and 15.