(dissenting).
I cannot, see that claims 22 and 88 of the first patent are any more infringed than claim 97, which my brothers find has not been. It does not seem to me desirable to state my reasons at length, beyohd saying that for infringement it seems to me necessary to find that the reciprocating fingers 44-44 support the stack of bands at some part of the cycle. The only proof that I can find in the record is that they do not. I see no reason to'-rejeet Bentley’s testimony that their only function is to insure against pulling away more than one band at a time. To me it seems plain that the analogúe of the reciprocating fingers 0-0 of the patent are the defendant’s rigid ledges, 64. There are indeed other ''divergences between the claim and the defendant’s supporting and withdrawing mechanism, but this alone seems-to me’fatal to the suit. In claim 22, I cannot, therefore, find any “movable means for supporting bands above said device”; i. e., the sucker. In claim 88 I can find no “support adapted to engage the lowermost band of a pile of bands to support the latter and to form a space between the lowermost band and the next one above.”
The defendant’s machine has its provenience from Boyd, 547, 763, rather than from the patent in suit; or, if not, at least its operation is more like Boyd’s. Dealing, as we are, with a limited detail of a very complicated mechanism, I fail to see what the patent ,in this regard may take from being the first practicable cigar-banding machine. In the most important detail of wrapping the cigars, it is toto cáelo different.
The case on the second patent is" more doubtful, and, if it stood alone, I might not have thought it worth- while to record my dissent. However, I cannot agree that in claim 5 there is any patentable invention over the first patent. Again success seems to me substantially to depend on the band-applying means, which every one agrees is quite different from that used by the defendant. Claim 5 does not involve that, but would apply to any machine containing any band-applying mechanism;, that is, unless limited for purposes of validity, which the plaintiff does not want. The claim is for the most abstract conception of the invention. Of the prescribed elements, the first patent had (1) a band container, (2) suction means for withdrawing the bands, (3) means on the conveyor for receiving the band from the suction’ .means, and holding it on the conveyor, (4) moistening means, and (5) a band-applying mechanism. What it did not have was (6) a reciprocating conveyor, which (7) transferred the band to the /moistening means and thence to the band-applying means. The ■conveyor in the first patent was a flexible belt, which, instead of reciprocating, was carried upon a chain and sprocket and0 traveled in an ellipse.
If the claim is broadly valid, it must be because the reciprocation of the conveyor as a mere idea is novel, for the mechanism of reciprocation is áltogether different from that of the defendant’s. I do not believe that that is a patentable novelty. There remains only the position of the moistener. In the- first patent, the moistening is done while the band is upon the sucker, the mechanism is wholly different from that of the second patent. But the claim must again depend upon the mere idea of moistening while the band is on the conveyor, because in this too the defendant’s mechanism is quite different. I do .not think that, as a mere idea, this is patentable either.
To succeed, the plaintiff must maintain that the first person who made a cigar-banding apparatus can control all others who make any such apparatus in which the sequence of steps is the same. I do not believe that there is any invention in that mere sequence. But, if there is, the sequence is disclosed in Britton, in which a sucker removes One label at a time, the jaws of a reciprocating conveyor seize it, and it is then gummed *613and passes to a wrapping machine. In Brit-ton the band is not held, it is true, by suction means upon the conveyor, but the plaintiff for its own purposes eliminated that element from the claim, and indeed it is the arm 40 which holds the band to the defendant’s sucker after the first withdrawal.