(after stating the facts as above). Conced-edly the first three elements of claim 12 are employed by the defendant, but it is contended that infringement is avoided because the fourth element — “means for continuously feeding the paper without feeding the type wheel”' — is not embodied in its machine. It is argued that the evidence conclusively establishes the impossibility of feeding the paper in defendant’s present machine without feeding the type wheel to the right and spacing the letters, and that there can be no continuous feeding of the paper upward or in the direction of its length without advancing the carriage a letter space, and that accordingly such structure is different in principle and mode of operation from complainant’s. *But on consideration I am of another opinion. I believe that the structures are still substantially identical, that they perform their functions in substantially the same way, and accomplish practically the same result. The difference in organization has not produced different modes of operation, except in a single instance, which is not sufficient to avoid infringement.
The specification in suit describes means for continuously feeding the paper for successive line spacing without in any way advancing or rotating the type wheel, while in defendant’s present machine (Defendant’s Exhibit E) the paper is fed for line spacing from an initial position or from the first letter space; the circuit to the paper feed magnet being closed and the armature attracted until the finger SO on the carriage is pulled out from the contact springs 33. To break the circuit to the paper feed magnet it is necessary that the type wheel be fed out to the right from its initial position at least a letter space. There can then be no further feeding of the paper until the pawls are raised from the racks and the type wheel carriage shifted back to the extreme left, for by such return movement only can the circuit be broken and the paper fed a second line space.
*166The contention that in defendant’s machine the. paper cannot be fed without feeding the type wheel, as that phrase is explained herein, is unpersuasive, as it is clear that the line spacing may be continuous at the desire of the operator so long as the continuously rotating drive shaft supplies power to the letter spacing shaft. . Obviously there can be no feeding of the paper or of the type wheel if the drive shaft is not rotated as the various instrumentalities are actuated only by means of said drive shaft 3J¡, — the essential element of the claim— which is maintained in constant readiness to respond to the line spacing mechanism. I think that the words “without feeding the type wheel” imply that the paper may be fed continuously while the drive shaft is being rotated, without feeding the type wheel as it was necessary to do in the prior Merritt & Joy machine of which the patent in suit is an improvement. There is nothing in the prior art to require the literal interpretation of the claim demanded by the defendant or to limit it to the exact means for continuously feeding the paper without feeding the type wheel.
‘ In the Merritt & Joy patent No. 558,506, as was, I think, pointed out in the prior litigation, it was necessary that the type wheel should be fed to the right a number of spaces, so as to generate power in the spring 36 which effected the feeding of the paper on the return of the carriage by a pin coming in contact with a bent wire actuating a pawl and ratchet on the paper feed roll and within the line spacing mechanism. Such a feeding of the paper’ was not the feeding of the patent in suit. So also in the Joy patent, No. 676,137, it was important that the type wheel carriage should be first shifted a considerable distance to the right in order that the bent wire, used also to actuate a pawl and ratchet, might be brought into use for actuating the line spacing feature. The paper in such machine was fed by the return of the carriage and not, as in the defendant’s present machine, by the movement of a magnet armature. In both complainant’s and defendant’s machines the rotative drive shaft obviated the necessity of feeding the type wheel carriage to obtain power from a spring so as to actuate the paper feed, and a fair and reasonable construction of claim 12 is that the phrase “without feeding the type wheel” relates to means for achieving a successive upward movement of the paper for line spacing without the necessity of first feeding the type wheel so as to obtain power to achieve such end. Such a construction finds support not only in the oral evidence, but also in the specification of the Joy patent in suit wherein it refers to the movement of the type wheel in the former machine (patent No. 676,137), stating that in the present invention “the paper may be fed line by line without feeding the printing wheel.”
But defendant insists that claim 12, as modified by the disclaimer, is also anticipated by the patents to Wright, No. 460,328 and 466,858, and to Essiclc, No. 531,677. The Wright patent, No. 466,585, though it had a rotating type wheel shaft and a rotating shaft for line spacing, is not anticipatory as the said shafts were operated by independent motors, and the machine, unlike complainant’s and defendant’s machines, was incapable of immediate action on a plurality of mechan*167isms. In patent No. 460,328, the rotating motor did not rotate the letter spacing mechanism, for while the type wheel shaft was intermittently rotated by a constantly rotating motor, the letter spacing shaft was rotated by a magnet, and the line spacing mechanism by a weight and cord. As the combination, in suit was not suggested by the disclosures of the Wright patents, they are not anticipatory.
The Essick patent coueededly has no constantly rotating motor shaft, although it embodies a number of the features of complainant’s patent, including a magnet feed in place of the bent wire line spacing mechanism of the Merritt & Joy patent; but as the claim in controversy is for a combination of elements achieving a new and novel result, its separate elements found in different machines of the prior art certainly do not anticipate it. In my opinion it was not an obvious thing to take an element such as the magnet feed from a prior ticker machine and position the same in another machine, operated on a different principle, in such a way as to secure the required cooperation with other elements and instrumentalities. This was the achievement of an inventor.
It is unnecessary to set forth in detail the method by which additional line spacing was secured in the machines employed by the parties to the litigation. But briefly stated: The type wheel was actuated by keys on a transmitter keyboard, a letter spacing key, and the return key, each having blank spaces. On depressing the blank letter space key the type wheel moved one letter space to the right, and on depressing the return key the type wheel shaft and letter spacing shaft rotated causing the pawls to- disengage the rack and the type wheel carriage to slide to the right. After the blank letter spacing key, the return key, instead of the repeat key, was struck to avoid so-called skating through and to secure uniformity of operation in the different machines when a message was sent. While two motions were required of the operator instead of one to effect an additional line space, this in my opinion was not substantially the feeding of the carriage of the prior Merritt & Joy machine. Defendant’s initial movement of the type wheel carriage to the right was not made to create power for feeding the paper, but was merely an incidental step in the line spacing operation, and was not a feeding analogous to that of the p-rioi art.
My conclusion is that the defendant company in its present machine has not succeeded in avoiding the claim with which we are herein concerned, and that in its adaptation of prior infringing machines it still infringes complainant’s patent by equivalent means which achieve substantially the same result. Even if defendant has succeeded in avoiding the letter of the claim, the charge of infringement, in the circumstances herein presented, is nevertheless made out. Westinghouse v. Boyden Power Brake Co., 170 U. S. 537, 18 Sup. Ct. 707, 42. E. Ed. 1136.
The complainant may enter a decree .for an injunction and an accounting, with costs.