after stating the facts as above, delivered the opinion.
The contention of fact, put forth by the appellant to carry his patent back of the Hoyt patent, is that Paterson, the purchasing agent of the Adams & Westlake Company, shortly before Thanksgiving 1895, conceived the fixture embodied in his patent, put it into a sample frame and operated it, and, after finding that it worked satisfactorily, dismounted it and took it home; that in March 19Ox, in pursuance of an agreement to turn over to appellant any inventions which he at that time had or should subsequently make, this original fixture was taken from its retreat and brought to the office of appellant’s solicitors, for the purpose of obtaining a patent thereon; that thereupon it was put in the hands of a draughtsman, with instructions to make a drawing exactly like the original; and that five months subsequently, August 1, 1901, an application, embodying such drawings, was lodged in the Patent Office — the delay being due “to the pressure of other matters in the office of complainant’s solicitors.” Now all this might appear as a mere matter of fact narrative, exciting no inquiry, but for the fact that in June 1901, at a convention of the Master Mechanics and Master Car Builders’ Association, at Saratoga, the Hoyt device, subsequently embodied in the Hoyt patent, was exhibited — an exhibit that came immediately to the knowledge of Paterson and his solicitors, bringing forth a completion of the application said to have been begun in the March preceding, with the view, as stated by complainant’s solicitors, “of throwing the Hoyt patent into interference, as the date of conception and the making of the model ante-dated the Hoyt patent.”
In the light of these events and of this purpose, a comparative examination of the Paterson drawings, descriptions and claims, and the Hoyt drawings, description and claims, is interesting. Hoyt says:
“My Invention has for its object to provide a window-shade holder which will permit the shade to be drawn down practically without resistance and without manipulation of any parts whatever and which will automatically lock the shade against upward movement in any position in which it may be placed, it being an important feature of my novel shade-holder that the locking of the *100shade is effected by cam action rather than by spring action and that when force is applied to raise the shade that entire force is caused to act on both sides of the easing to resist the upward movement of the shade, thus rendering it practically impossible to raise the shade by a direct upward movement, while, on the other hand, the shade may be instantly and conveniently released by manipulation of the holder, it being understood, of course. that the holder is especially adapted for use upon spring or, as they are commonly called, ‘self-acting’ shades or curtains.”
And to this end, he employs a cam, as shown in the diagram, so pivoted that when any attempt is made to raise the.curtain without pressing the finger-pieces, the strain chiefly falls, not upon the spring, but upon a fixed pivot whereby the locking action becomes effectual. Indeed, in this locking action, the spring has little part.
In the Paterson description, the invention is said to relate “to that class of curtain-fixtures wherein the lower margin of the shade is provided with spring-actuated friction-shoes serving to restrain the shade against the tendency of its winding-up spring.” And again, “If it be desired to adjust the curtain to a higher position, it can be forced up against the holding action of the shoes; but as such mode of adjustment would have a tendency to throw the shoes out of the groove the proper mode of operation is to retract the shoes by operating the bolt 15, whereupon the curtain may be adjusted up or down, and When the bolt is released the springs will return the friction-shoes into contact with the window-frame and hold the curtain in the adjusted position”; and the drawings show friction shoes as pointed out in the description.
Reading these two descriptions in the light of their respective drawings, the difference in intended operation is manifest. In the Paterson device, the force employed to overcome the rise or fall of the curtain is friction; in the Hoyt device it is true locking action. In the Paterson device the implement used is a friction shoe, with some resemblance to a cam; in the Hoyt device- the implement used is a true cam, with very little reference to friction. In the Paterson device, the shoe is pivoted in a slot, whereby the friction is varied according to the pressure of the spring; in the Hoyt device the cam is pivoted on a fixed pivot, the spring having little, or nothing, to do with its locking action. The two devices, on the drawings and descriptions alone, so far as this feature of window shades is concerned, are on entirely distinct lines of thought.
But when we come to the claims of the Paterson patent (drawn after the Hoyt patent was known to Paterson’s solicitors, and with a view to interference), the distinction above pointed out is entirely dropped. No longer does Paterson call his shoe “a friction shoe” — it has now become “a pivoted locking-cam.” The shoe remains, in the drawing, what it was before; its function remains as set forth in the descriptive portion of the patent; but it has changed its name to make it appear a kinsman of the Hoyt patent. Possibly, grounds for interference were thus raised. But be that as it may, no identity of actual function or operation — no tracing of the two devices to one ancestor — has followed. Strangers to each other at birth, they remained strangers to each other in blood, at least, to the end.
We have put our decision upon this ground, because we think it more likely, in this way, to bring about a permanent adjustment of the par*101ties’ respective rights. Did this ground not exist, however, we would be compelled to find, upon the record before ns, either that the so-called device put away by Paterson in 1895, upon which his patent is said subsequently to have been drawn, was a mere experiment, inoperative and impracticable; or, being operative and practicable, was abandoned; for, in view of Paterson’s relation to the window-shade art, including his own financial means, and his access to those who had financial means, no other explanation of the delay in filing his application for a patent is át all satisfactory. Here again, the Hoyt invention comes into the Paterson narrative as an important figure; for although the Paterson device, as set forth in the patent, is along the old lines of the art, and differs fundamentally from the Hoyt device, the superficial resemblance to the Hoyt device is so much nearer in this device of Paterson than in the others, that it could well have been, for that reason, dug up as the more promising device upon which to make a contest.
The decree of the Circuit Court is affirmed.