40.":1 . fact . the .device was old,aQd had placed It m combmatIOn wIth the of a for the, purpose of making its action automatiq. ..This view iftstrongly,et\forced by the testimony showing how patentable,' c0jnbination happened t(). be made. It appears tbQ.t Royer, the referred to ,C!erc asa person who knew how to lIS the device was tben, termed; he appli,ed'to to make a 'reverser for his fulling-ma- ' chine, and gave hilll a plan of the saine, and that Clerc accordingly made one adap,ted, to qpestion, and that it' worked well the first time it was ti'ied,and same device that Clerc had previ0llsly ,applied to a washing-IJ;lachine. , It does not appear thllt. Royer' gll:ve, Clerc, any directioIls/as, to ,the cOt;lstruction of the reverser, pr· mode of to a fulling-machine,.or that the latter 'worked under Royer'!! supervision.' Clercwlls applied to as a mechanic whokhew how to understood how to adap'fthem to mac:ihines of a tl)" . for the qf.,imparting reverse ,action automattn the light of thistestimmiy it appears to theco,utt that the combination of the belt-shiiter with the drumo! a ,fulling-machine was a patentable combination, and it was, the allegedpatenteejs but tha:t Inventor. meItJ1er event be dIsmIssed; ,and It 1S so " . ," ' <
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A corporation of' another state; defendant in a suit hi' a federal conrtwhichhas +I'; jurisdiction i)f thesubjedt-matllel'Jbyappsal.'1ng, filingaDswer, and taking: testi',' .'W3ives to, !l.u h,ear!ng that it C&Ij. P6aul\d ill the cij"t.rictof
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II. . ".,: Letters paoob1lNo·.284,OO6,issned'to Jolin· H.: McBrIde 'fora "riding att&ehmeni '. ,: fo,t:PIOWSll.,w. W: r a comb'nation 9 the driver 0.t., plowiiwhile seateq.,on it, dth !,nd depth of fUiTow. It aPlleared on bi 'for infringement , thereof' palients hiMl been; graillted for SImilar IiJ1ventions, but it Wl'S not tllat, complainant's oombioatioJl"was nqtnew. Held, that the prima farM case of valiq,it:f of the patent arising from· its issue wa$ ,Dot overcome. ' , ;' f \ ,,'-, , I ,j , > ,,'
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iii. notlilfii. Eidb,t plows manufactured patent '! liI'O. S53.2Si. ilfllqqd;to 'Charles S. 23, 1886, which attains tl1e 8ame .. objects\ different of the parts, as complainan1;'s »atent does . f "'not applY to parts, they having been preViously used. ' ,.; ";;: J
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,In E4*i.ty., John (]olt,
MCJTeJI,cJc
of patent. c<;>mplalb!lnt. fdl"de1entJarits'. ,. ,
M'BRWE
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{pr determinp,tipn in this cause is that ()ver tb,e G!:l,l.l1dqe, ,Tour Plow, Compl'\ny, a laws pf of, Illinqis.; 'T,he companyapp,oored in the filed :to t4e merits, has, taken testill1-PllY, and not by a plea to tlwjurisdiction, but bya nOW,Qponthe final mere of counsel" seeks to questiont!;J.e jurisdiption pf upon ,the ,that ,it cannot be sued inadistril:)t other than of reli!idence., ·Counli!el cites in support Qf the well-recognized princl pIe,tl;ult consent of confer jurisdiction upon the Co\lrts of UnitedStatel!" when such jurisdiction not in It record, not only that the controversy arises unQ,er the but patent 1a:'lYS pf the suit was brought, Was .1lD,d ,contioues to., pe a citizen of the s:tate of Iowa" anp. the ,was and is a corporation created under the the state or IUinois. "" The case, therefore, is one within,the and the question really jurisdiction oUhe United. is whether the company ,can waive the right, of insisting thatit Clj.n,be sued ()nlyi.D. ,the district residence. Had tpe,company, when it first appeared to the action, this question by motion, plel1, or other proper method, it be that its cOljltE;lDtion would have been sus.,. tained. It ,did not do so, however, but joined issue on the merits, and it cannot be, now permitted byme,re to raiSle the questipn at the present time. In cases of this character. I do not think the act of 1888 has changed the rule recpgllized underthe judiciary act of 1789anlisul;>-. sequent' statutes, that questions of jurisdiction,. in the .sense of pr.oper place Or district for the bringing of the suit, should be raised, by proper motion i( not thus presented, are deemed to be waived. presented by the pleadings of the parties are as to the The validityqrIetters patentNo..284,036, issued to complainant fora "riding attachment for. plows,",an,d as to infringement by the plowsplanuby the defendant corporation, and sold by the other defendants its agents. 'rhe invention sought to be covered by the patent to complainant is practically upon a combination having two main. objects in v.iew, i. e., the enabling th,e ,driver of the plow, wh.ile seated upon the driver's seat at the rear end of the plow, to raise and lower tlle point of tJ.1,eplow when in operation, so as tq lessen or increase the depth of the furrow,; and, secondly, to regulate the width of the furrow while maintaining the plow in such a position as that it will operate steadily. For.the .accomplishment of these purposes the complainant:devised a combination at the front end of the plow-beam, a clevis, rack, f,ame, caster-wheel,a lever and link combined with each other, and a plow-beam, and at the rear an axle-frame, driver's seat, a rack,a wheel-bearer, two wheels and lever,combined 'lYitha plow-beam and plow. It is irqpoRsible, without :the aid of drawings, to fuUyqesoribe the rE/lation and workings of, these several parts of the combinatiQn,and also.ofother portions of the machines as exhibii\ed in the drawings to the patent, and it will not be attempted. It appearS fJ;otAthe evidence.iPithe case that. plows, constx:ucWdaccQrding to the sliloW'll:iqlJow.-
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164
FEDERAL REPORTER,
vol. 40.
plainltnt's patent are of practical'value, and that the driver upon the plow, by theuse of the machinery provided; is enabled to regulate the operations of the plow in a convenient manner. The combination thereof has a value sufficient to sustain the patent if it was novel when patented. A large number of patents of date prior to that of complainant have been introduced for the purpose of showing the state of the art, and thus seeking to sustain the defense of want of novelty. It cannot be questioned that it appears therefrom that complainant is not a pioneer in this field of invention. Broadly stated, it is apparent that in all devices of any practical value intended to combine a riding attachment to a plow, the main object to be provided for is enabling the driver, when in his seat, to control the operation of the plow proper; 'for, unless the driver can, as necessity arises',' control the depth and width of the furrow, and the steady movement of the plow, the addition of the riding attachment have little value. Without going into a statement in detail of the various devices shown in the several patents introduced in evidence, it is sufficient to repeat what has already been said, that it appears therefrom that complainant is not a pioneer in this line of invention, either as to the result sought to be accomplished or the means used to bring about the result. On the other hand, it has not, been made clear that his com· bination is not novel as such,'unll'it cannot be held, therefore, that the primajafJie casein his favor, arising from the fact that he holds a patent duly issued, has been successfuHytnet. The defense, therefore, of invalidity of complainant's paten( cannot be sustained. Upon the question of infringement greater difficulty arises. It is admitted that the defendant corporation has been manufacturing and seIling plows' constructed according to the specifications and drawings attached to letters patent No. 353,234, issued to Charles S. Ruef under date of November 23, 1886; and the contention of complainant is that they aTe in fact an infrit;lgemeht; In sllbstance, the purposes arrived at in the several combinations shown in the McBride and Ruef patents are identical, andit is to be, expeCted that many of the several parts in the different ma.chines should be' fdnnd"to be absolutely identical. As complainant'is not the inventor; however, Of any of such independent parts, the mere tisethereof by the defendants does not constitute an infringement. In many respects the construction of the two machines is .sub.8tantially 'the same, and generally it may be said that, if the McBride machine was the first of its kind in its entirety, the Ruef machine would certainly irlfringe it in several pa1'ticulars. But McBride is not the inventor of the several co-acting parts of his machine, and it was therefore open'to others to use these several parts, or any number thereof, and by ne,v combinations thereof work out the same results accomplished in whOle orin part by complainant. Of course it is not meant by this that the'consequences of infringement could be escaped by slight changes in the combination, or by changing the mere position of some of the parts; if the differences were such that a hew combination was the result, it'would not then be an infringement. While the question is not by any means entirely clear ti6r free from doubt, yet the conclusion reached