dissenting:
In the opinion of this court just delivered I do not concur. Rrotracted.as the discussion by counsel in the ease has been; the real grounds for controversy between the parties are obvious, and comprised within quite a limited compass. . The unusual display of mechanical ingenuity, and the comment upon its progress. exhibited in the conduct of this cause, whilst they evince great zeal and industry, and may afford entertainment to the *409curious on such subjects, are in a great degree irrelevant to and beside any legitimate inquiry which an adjustment of the claims of the parties either imposes or' warrants. In the decree of the court, below, as well as in the arguments in this court, it has been conceded,-that the patent of the. appellant is strictly legal. This concession necessarily excludes, and in legal acceptation concludes, all inquiry as to the right of the appellant to the full benefit of his invention, either as an original or a . combination, and renders unnecessary, and irregular, and improper, any and every comparison between that invention and previous claims to discovery and improvement, having in view the same .results, and the same or merely equivalent modes of producing them. This concession, therefore, narrows down and confines the proper investigation before this court, as it should have restricted that'before the Circuit Court, to the single question, whether the machine complained of as an infringement, either in theory, in construction, or in operation, was the same with the improvement invented by the appellant, for the benefit or the reward for which the law had given its guarantee ? .(This was the proper inquiry before the court below, is the only regular inquiry here. All others connected with previous inventions were and must be irregular, and are excluded and forbidden by the concession that the patent of the appellant is legal and valid. To guide them in this, the only legitimate inquiry, this court has had before them a species of evidence of all others best calculated to conduct- them to the truth — evidence superior to, and unaffected by, the interests or prejudices of partisans, or by the opinions' (the reveries, they may often be called) of á class of men styled experts; men as often skilful and effective in producing obscurity and error, as in .the elucidation of truth. No witnesses can testify so clearly- and so. impartially as do the subjects (though mute) concerning which a controversy about identity or dissimilarity is pending. These witnesses have been produced, and their testimony eagerly and keenly scrutinized; and that testimony establishes, in my judgment, with a force and certainty which no ingenuity can either withstand or evade, that the machine put in operation by the appellees is a palpable infringement of the rights of the appellant; that in theory-or principle, in structure, in the modes of operation, and in the results proposed, it is essentially, and, with some insignificant and merely apparent diversity, formally identical, at least in one important particular, with the invention'-secured by the Government to the appellant, and admitted by the appellees,, and by the court, to have been rightfully and legally guarantied to him.
That portion of the machines put in operation by each of *410the parties to this controversy, and which constitutes the most ■ material subject of contention in this cause, consists of what in the description and specification of the respective patents is c died.a divider. The function and the value of this divider are experienced in separating the stalks of wheat designed to be immediately severed by the cutters, from those which do not come within their immediate and regular operation, but which it is desired should be left to the future or succeeding action of the machine. It frequently happens, in fields of luxuriant growth, that from high winds, heavy raijis, and even from its own weight, wheat is pressed down, and becomes in rustic phrase lodged. In this condition, the stalks and heads of the wheat, on both sides of a line described by the track of a machine, will become entangled, and inclined in various and opposite directions, accordingly as the momentum which displaces the .natural position of the growing crops has been applied. In such a condition of the wheat, any process by which a portion of the crop should be torn apart from' portions with which it was ■ intertwined, would prove highly detrimental, inasmuch as it would necessarily increase the irregularity in the position of the wheat not cut, and standing outside of the regular tr^ck of the machine; and, by violently and rapidly rending apart the tangled straw, would shatter and waste the grain in each division, creating thereby a serious diminution in the yield or product. In order to prevent these mischiefs by disentangling the wheat, by separating that designed to be immediately severed from that reserved for the succeeding action of the machine, and by raising up the former, and bringing it within the scope and operation of the reel and the cutters, was devised an addition or appendage to the reaper, called the divider. The importance, of this appendage, both to the success of the reaper and on account of its real utility in practice, cannot be with reason called in question. ■ Its essential importance is sufficiently evinced by the zeal and industry displayed, and the extraordinary expense which must have been incurred in this controversy. The divider of McCormick may be thus substantially described: A pointed instrument or structure, called by the patentee a bow, formed of strong hard wood, confined in front, and projecting so far in advance of the cutters as to enter the wheat in time to effect its preparation for the approach of the cutters. This bow is extended in a curvilinear form on the outer side of the machine, next the grain -to be separated from the cutters, and is gradually elevated from the point in front to a degree increasing towards the rear of the machine, sufficient to disentangle the straw, and place it in a position proper for the sweep or action of the returning machine; On the' interior side of *411the machine, or that on which the grain is to be severed, the divider of McCormick is constructed of a bar of iron, confined at the same point with the wooden bow above mentioned as operating externally; and this iron bar is capable of being so adjusted as to disentangle and raise the wheat separated from that standing, on the exterior of the machine; and by a lateral and angular direction given this adjustable bar, as well as by its vertical extension, it embraces and secures the wheat on the interior side of the machine, and presses it to the action of the reel and the cutters. - .
Such as has been just described, I hold to be McCormick’s divider, and such, too, its operation and effects. Let us now compare them with the structure and operation of the structure complained of as an infringement, in order to ascertain how far the rival claims of the parties are identical or diverse. And this comparison will be most fairly and satisfactorily accomplished, and the results most clearly established, by a recurrence to that silent but irresistible testimony already referred to, the testimony of the machines themselves.
On Manny’s machine., the divider on the exterior side, or the side of the standing grain, is formed of a piece of timber which, according as fancy shall dictate,.may be denominated a bow, or by any other appellation which may be preferred. This piece of timber, like the divider of McCormick’s machine, is confined in front, and penetrates the standing grain in advancé of the cutters. Like McCormick’s divider, it rises obliquely from the stationary point in front, towards the rear of the machine, to a degree intended to be sufficient to separate and support the straw, and in the same manner diverges in an angle supposed to be great enough to secure that separation, ana to prevent the breaking down of any portion of the straw by being pressed to the earth, or by being torn away by the machine in its progress. On the interior side or section of Manny’s divider, there is no acljustáble iron bar or rod, as a part of the divider; but for this is substituted a piece of timber or a board, connected and confined in the front of the machine with the. wooden fixture extended on the outside next the standing grain;' and from that point of connection this substituted board is protracted in a diverging angle, and to a length corresponding-exactly with those of McCormick’s adjustable iron bar, and, like the latter, it is gradually curved to a vertical elevation intended to be great enoúgh to separate and raise up the wheat designed to be immediately severed by the cutters from that reserved for farther action of the machine. The only differences between this fixture and the adjustable .bar of McCormick (and they are merely pretended and de*412ceptive) are these: that the former, instead of being of iron, is made of wood; that instead of being movable or adjustable, it is stationary; that it is broader on its lateral surface than is that of the iron portion of McCormick’s dividei’, and on that lateral surface is somewhat curved. But these differences, correctly apprehended, are mere disguises, and were indispensable to shelter the possession of property evidently pirated from the rightful owner. Had the appellees openly taken McCormick’s iron instrument, adjusted it so that it could be graduated in practice to the quality or height of the grain in which the machine was to operate, and placed it at an angle suited to the conducting of the grain within the action of the reel and cutters, there would in so bold a piracy have been left no ground, no pretext even, for contest or cavil. Hence the effort at distinctions or differences attempted in the case. To my mind, it. seems impossible not to perceive that they are entirely unfounded, and cannot for one instant conceal these truths, viz; that the instrument or structure called a divider, introduced and practiced by the appellees, is in theory or principle, in manner of its operation, in its effects or results, and it may almost be said in its minute constituent portions and formation, identical with the instrument invented by and patented to the appellant, and therefore an infringement of the rights guarantied to him by the Government.
Entertaining this opinion, I must dissent from the decision of the court in this cause, and declare it as my opinion that the decree of the Circuit Court should be reversed, and this cause remanded with instructions to reinstate the injunction formerly awarded by the Circuit Court, and to direct an account between the parties. The only legitimate inquiry for the court is this: whether the improvement of McCormick called a divider, and the instrument claimed and put in operation by Manny, are essentially the same, or are essentially osubstantially different. All that has been said (and a great deal has been said) about the comparative superiority or inferiority of inventions or improvements previous to those' patented to McCormick, is wholly irrelevant, and out of this cause; .and is calculated only to confound and to divert the attention from the only proper subject of investigation here, which is the rightfulness of the claims advanced by the appellant and appélíees in this cause, relatively to themselves, and to no others.