(concurring.) The opinion in this case, written by Judge Hawley, is concurred in by Judge Morrow and my*874self, and adopted as the opinion of the court as to the principal invention of Mr. Norton, of a “machine for putting on the ends of fruit and ether cans,” and the several improvements and combinations of the parts c f said machine with additional devices for doing all the work of bringing together cylindrical can bodies, and the disks or caps for closing the ends thereof, and joining them by a series of harmonious automatic movements, covered by the several patents issued to E. Norton, Norton cl Hodgson, and Edmund Jordan, respectively, and numbered 267,-014, 274,363, 294,065, and 322,060. We are of the opinion, how(ver, that for some kinds of work the machine contrived by the appellant Jensen is an improvement upon any machine previously constructed, í.nd a very useful invention; and that it is not an infringement of any nights of the appellees under the patent issued to Edmund Jordan, No. 307.197, or the Norton & Hodgson patent No. 307,491. While we are iwilling to protect the complainants to the full extent of their lawful ¡claims under the patent laws, we have not failed to notice that, by his 'own testimony, Mr. Norton has manifested a disposition to restrict the 'use of his patented machinery to the heading of cans manufactured by \i. particular corporation, thereby imposing a grievous burden upon important industrial' enterprises, from which they cannot escape unless other machinery can be lawfully employed. For this reason we are not inclined to enlarge their rights by any strained construction of the law, nor by presuming in their favor facts not clearly proven by legal evidence. We hold that the Jordan “can-ending machine” patent No. 307.197, by reason of being cumbersome and slow in its operations, is not a practicable machine for putting heads on tin cans of the size required for use in putting up fruits, vegetables, meats, fish, and similar ¡materials for individual and family use; and therefore it cannot be infringed by the use of a different machine, which will do such work well, £.t a reasonable cost. It is true that Mr. Norton has testified that a Jor'<lan machine set up in his factory has been operated successfully. But this is only the conclusion of an interested witness. It states no particulars as to the time during which the successful operation of the machine continued, nor the number of cans, whether one or a dozen or more, that were successfully operated upon; and he does not say whether or not the expense attending the successful operation was or was not the <ause of discontinuing the same; and, besides this, same witness admits that this machine is too slow in its operation to be profitably employed in heading cans of the size required in the largest numbers. The most that he claims for it is that it is a splendid working machine for putting covers on gallon or other large cans, a class of work for which, so :iar as the evidence discloses the facts, the Jensen machine has not been used. Mr. Jordan is not the inventor of the mold or discoverer of the ¡principle of the segmental clamp described in the specifications for his ■patent. His invention consists of a new use of these appliances in com- ' bination with others to produce certain results. This is a sufficient reas on for limiting the patent to the particular use mentioned in the specifications. The “can-ending machine” described in patent No. 307,491 *875is simply the machino covered by the patents Nos. 267,014, 274,368, and 822,060, tilted up, by being bedded upon a table the top of which is an inclined plane of about 45 deg. from an horizontal, combined with a spirally twisted discharge chute, so constructed as to receive cans in the inclined position in which they are held by the clamp when the heads are applied, and deliver the same in an horizontal position. The object of setting the machine in such inclined position is to make it operate upon filled cans. It is obvious that to move and operate upon well-filled cans, especially of liquid or semi-liquid substances, the cans must be in true vertical positions, and the movement must be so free from jarring or concussion as to not disturb the contents; whereas one of the essentials of the “ can-ending machine ” is a carrier or feeding chute so constructed as to bring the cans into such a position that, by force of gravity, thoy will drop into the half molds upon the periphery of the intermittently revolving wheel. The machine will not operate upon filled cans in an upright position without some additional device or substitute for gravity to force the cans into the revolving half molds, for the clamp or mold has no attraction for the cans or means of seizing them without the aid of an extraneous force. The contrivance of setting the can-ending machine in an inclined position, and the adjustment of the feed and discharge chutes to work with it in that position, can scarcely be considered to involve the exercise of inventive genius, or anything more than ordinary mechanical skill; and being, at best, but partially successful in the accomplishments of its object, we cannot, under the law as we understand it, hold that any rights of the patentees have been infringed by the Jensen machine, which the evidence shows to be in its operation upon filled cans a complete success. The patent laws were not designed for the benefit of the man who attempts to originate a useful thing, but rather to reward the one who first achieves success in the production of it. It would be a perversion of the law to hold a machine which can do certain kinds of work to he an infringement of a patent for a different machine, which cannot do the same work. The decree of the circuit court should be so modified as to declare that the patents Nos. 807,197 and 307,491 are not infringed by use of the Jensen machine, and in all other respects affirmed, and it is so ordered.
Costs of the appeal are awarded to the appellants.