lates not at all to sanitation, but to the making of a strong double neck. He says:

"My said invention relates to cans for transporting milk and other commodities, having the usual cylinder and bottom, but provided with a double neck and breast to give those parts greater strength and durability."

This was the idea and purpose of claim 1 of the Haigh patent when first filed, and which claim was rejected and abandoned. This left all the claims of the patent in suit for a strong-necked, sanitary can, with a new and a peculiar construction, and of it the witness Henry C. Milligan says:

"In these large cans, the important feature that the buyer of these cans has in mind, to start with, is the greatest strength where the greatest strength is required, and where the neck members are so joined that a flush, sanitary union is obtained. As I have defined and as is defined by all the trade-the trade's construction of 'sanitary,' in this sense-I state, in my opinion, there never was such a can produced until the invention of H. B. Haigh was put into practical use and manufactured on a commercial scale. * * In looking at this Haigh can, its construction-easy and practical and commercial way in which it is constructed-I state, from my knowledge of the art, that it is absolutely new in the features, all of which I have rendered an opinion on."

The Wolf can, of March 13, 1894, No. 516,255, in claim 1, speaks of a ring circumscribing the lower edge of the body of the can, while claim 3 relates to the construction of the bottom of the can, and claim 4 relates to the connection between the main body of the can and the breast portion and the flaring neck, and a cover having an annular channel in its under face to receive the edge of the cylinder. Claim 2 of that patent is as follows:

"In a milk can, a ring composed of two flanges and a shoulder, one flange, h, circumscribing the lower edge of the breast, b, the other flange, i, circumscribing the upper edge of the cylinder, a (this being the main body of the can), attached thereto, substantially as and for the purposes set forth."

In the specifications the patentee says:

"The ordinary cans are also weak in the neck, as they are constructed with a dished rim soldered to the upper edge of a cylinder, the lower edge of which is soldered to the breast of the can. I form the dished rim, j, and a portion of the neck, k, of one piece, and also the breast, b, and the lower portion of the neck, k', of one piece, lapping the portions, k and k', and forming only one annular soldered or riveted joint, 1, at the strongest part of the neck, or near the middle thereof."

He says nothing of sanitation.

The conclusion is inevitable, giving a fair construction to the complainant's patent, that it discloses patentable invention, as before stated, of a marked degree and character. The proof shows that it met with great favor with the dealers in and users of milk cans. In short, it met with great commercial success. It was stronger, better, more durable, and much more sanitary than any can upon the market or known to the trade. Many of its features were old, but the combination is new, and some of the elements of the combination are entirely new. The combination of elements has produced in a sense a new result. The result obtained is a very much improved mode of constructing a milk can. A much stronger

and better can is produced at a lessened cost of production, and the sanitation is far better than that found in any can of the prior art. The Patent Office saw patentable invention in the device and construction of Mr. Haigh. The patent is presumptively valid, and this presumption has not been overcome. The defense of want of patentable invention fails.

We come now to the question of infringement. Here the evidence, in one view of the case, is somewhat involved, and quite conflicting. In the first place, the defendants deny that their construction, conceding it to be as the complainant claims, is an infringement of the Haigh patent. In the next place, the defendants contend that the only cans constructed by them that could by any possibility be held an infringement were accidental cans, and that they ceased their manufacture as soon as it was discovered that these so-called accidental cans even imitated the construction of the complainant's can. The alleged infringing can has been during the trial, and will be, referred to as the "John Street Can." No one will assert that the defendants are not at liberty to make and use a can of the Milligan or Tiepke construction. But it is contended that defendants have done much more than this. The John Street can, the alleged infringing can, has (1) a breast member provided with a neck portion; (2) a mouth member provided with a neck portion; (3) one of said neck portions extending within, and being overlapped by, the other neck portion; (4) one of said neck portions having a flaring re-enforcing and (in the broad sense) locking flange; and one of said members (the other) having an annular recess, which receives the lower edge or end of the neck part of the mouth member, but in the John Street can this edge is not bent over so as to fit or go into the recess. Such bending over is unnecessary, for the locking is complete, in the broad sense, and a flush joint on the interior of the mouth of the can and at the bottom or lower extremity of the neck is secured without such bending over; and we have the breast member and the mouth member locked together in this construction by a flush-joint interlocking means. On the outside of the can, the neck portion of the breast member, extending upward in a straight line until it reaches the angle of the mouth member (that is, the point where the curve of the bowl terminates), bends outward at that end, forming a flange, which, coming at and in the recess made by the angle of the bowl and neck, the two (the angle forming a recess, and the bent end or edge of the neck of the breast member forming a flange therein) make such a structure that we have the two members locked together at this point indicated above. But here we do not have, nor do we require, a flush joint, for we are on the outside of the can. However, by beveling the lower edge or end of this neck member or flange we may easily have a flush joint. This construction gives a re-enforcing and locking flange at one point, and a flaring re-enforcing and locking flange at the other. The construction differs somewhat from that of the Haigh patent, but it is contended that this is in form, merely, and that it appropriates the principle of the Haigh patent, and that, in so far as they differ, the one is the well-known equivalent of the other. In fact,

it is asserted that the John Street can is almost a reproduction of one form of construction shown by the Haigh patent. This court is of the opinion that the defendants cannot escape the charge of infringement on the ground of slight and really immaterial changes in construction, so long as every element of the Haigh patent is appropriated and used to produce the same result in the same way, although the elements are combined in a somewhat different manner. See Walker on Patents (4th Ed.) § 350, where it is said:

"Sec. 350. No substitution of an equivalent for any ingredient of a combination covered by any claim of a patent can avert a charge of infringement of that claim. But like substitution of something which is not an equivalent will have that effect. The doctrine of equivalents may be invoked by any patentee, whether he claimed equivalents in his claim, or described any in his specification, or omitted to do either or both of those things. The patentee, having described his invention and shown its principles, and claimed it in that form which most perfectly embodies it, is, in contemplation of law, deemed to claim every form in which his invention may be copied, unless he manifests an intention to disclaim some of these forms. Combination patents would generally be valueless in the absence of a right to equivalents, for few combinations now exist, or can hereafter be made, which do not contain at least one element, an efficient substitute for which could readily be suggested by any person skilled in the particular art. But where a patentee states in his specification that a particular part of his invention is to be constructed of a particular material, and states or implies that he does not contemplate any other material as being suitable for the purpose, it is not certain that any other material will be treated by a court as an equivalent of the one recommended in the patent, though celluloid has been held an equivalent of metal in one well-considered case which depended upon the point."

As to combination claims, see Walker on Patents (4th Ed.) § 349, where it is said:

"Sec. 349. Omission of one ingredient of a combination covered by any claim of a patent averts any charge of infringement based on that claim. A combination is an entirety. If one of its elements is omitted, the thing claimed disappears. Every part of the combination claimed is conclusively presumed to be material to the combination, and no evidence to the contrary is admissible in any case of alleged infringement. The patentee makes all the parts of a combination material when he claims them in combination, and not separately."

As to the presence or absence in the John Street can of the elements of the Haigh patent the experts differ, and the court is left to examine the structures and claims and specifications and drawings, and, aided by these opinions of the experts, make a decision. Having caused the cans of the Haigh patent and alleged infringing cans of the John Street can type and construction to be brought into court and sawed into sections, this court is possessed of a decided opinion on the subject, derived from inspection and observation, but has not felt at liberty to be guided by that opinion thus formed, unless confirmed by the testimony of the witnesses. This reading of the evidence (a matter of time and patience) shows wide differences of opinion among honest experts-men experienced in milk-can construction and the wants and requirements of the trade. Henry C. Milligan says:

"Claim 3, claim 1, claims 4, 5, together with the specifications and the draw. ings, clearly show that the exhibit marked 'John Street Can' has the salient points and all the equivalents embodied in the invention of H. B. Haigh."

He also says, in reference to the Haigh patent:

"I have carefully examined the patent in question, and I find that it possesses features which are peculiar to itself-different, from features which I will explain, from any can heretofore made-so that, in my opinion, with the knowledge of the art dating back to its incipiency, this can, as constructed, I believe to be the pioneer can. It possesses the feature of having a double neck, joined by a seam sanitary in every respect."

He then says:

"I state unequivocally that I see no difference between the exhibit marked 'John Street Can' and what is known as the 'Haigh Can.' The salient features of the Haigh can, which, in my opinion, were new at the time the patent was issued; the features which I call attention to (that of a double neck joined by a sanitary seam)—those features are absolutely the same in the exhibit referred to."

Without quoting from other witnesses or calling specific attention to defendants' expert evidence, it is sufficient to say that one, at least, says the elements of the Haigh patent which differentiate it from the Milligan can and others are absolutely wanting in the John Street can. In substance and effect, this court agrees with the conclusion of complainant's expert, and finds that defendants' infringe. While this is a structure, and not a machine, I think the doctrine of Morley Machine Co. v. Lancaster, 129 U. S. 263, 273, 275, 9 Sup. Ct. 299, 32 L. Ed. 715, applies. The John Street can, however, has no improvement on the Haigh patent. See, also, McSherry Mfg. Co. v. Dowagiac Mfg. Co., 101 Fed. 716, 41 C. C. A. 627; Reece B. H. Mfg. Co. v. G. B. H. Mfg. Co., 61 Fed. 958, 10 C. C. A. 194; Western Electric Co. v. Home Tel. Co. (C. C.) 85 Fed. 649.

The complainant is not confined to the exact construction shown in the drawings. I find no words so limiting the patent. Much evidence was taken in open court-a very satisfactory manner of taking testimony in patent cases-on the question of the character and extent of the infringement, if infringement there has been. The defendants claim, as stated, that, by reason of the peculiar construction of the machinery used by them in manufacturing cans, the spinning wheel would occasionally overrun the point where it should have stopped, and where it was intended to have it stop, and form an outside recess in the neck part of the breast member, just below the lower end or edge of the neck part or portion of the mouth member; thus making the alleged flush interlocking and re-enforcing joint and connection on the inside so closely resembling that of the Haigh patent. This claim has not failed of serious consideration, but the court is satisfied that too many cans of that construction--John Street cans-were in use for that contention to prevail. If it be true that the defendants have only constructed and used or vended cans not having the objectionable features since the discovery of the alleged peculiar action of the spinning machine, and have wholly discontinued the manufacture thereof, an injunction will do no harm, and an accounting will disclose but little damage.

The complainant is entitled to an injunction and an accounting.

UNITED SHIRT & COLLAR CO. et al. v. BEATTIE et al.

PATENTS-INVENTION AND INFRINGEMENT-FOLDING MACHINE.

The Pine patent, No. 645,871, for a folding machine designed and used for folding the edges of collars, cuffs, and like articles, was not anticipated in the prior art, and covers a true combination, which discloses novelty and patentable invention. Also held infringed.

In Equity.

Suit in equity for alleged infringement of United States letters patent No. 645,871, dated March 20, 1900, application filed October 3, 1894, granted to United Shirt & Collar Company of Troy, N. Y., assignee of James K. P. Pine, for a "folding machine." The machine is used for the folding or inturning of the edges of collars, cuffs, and like articles, particularly in the manufacture of shirts, collars, and cuffs. The complainant Reece Folding Machine Company is the sole and exclusive licensee under said patent of the United Shirt & Collar Company. The defendants are extensive manufacturers of folding machines. The suit was commenced October 14, 1902. The defenses relied on are anticipation, lack of novelty and invention, that the patentee is not the sole inventor, and noninfringement.

Edwin H. Brown, for complainants.
George A. Mosher, for defendants.

RAY, District Judge (after stating the facts as above). There are six claims in the patent in suit. Each claim embraces or includes the following features: A support or bed for the blanks of collars, cuffs, or other articles to be folded. A blank is the material cut into shape for folding. A templet, or die, or former, or presser, having expanding and contracting plates with edge portions adapted to bear directly upon the blanks while resting upon the support or bed. When the folding is to be done, this templet, die, former, or presser is lowered upon the blank which rests upon the bed, and, after being so lowered, is raised to a position some little distance above the bed, where it remains for use in another operation. The plates or blades of the templet are expansible and contractible with reference to a common center, and expand and contract in or below the plane of a body piece or stock to which they are attached. When this templet, die, former, or presser is in use, its blades or plates are expanded, and their edge dimensions then approximate to, but are less than, the outline or outer edge of the blanks themselves. This is so that the edge portions of the blanks may be turned up and inwardly and folded over the edges of the plates or blades; and thus on each machine each blank, if the plates, etc., are not changed, is made of the same size and corresponds in size and shape to the collar, cuff, or other article to be manufactured from the blank. When the blades are contracted, the folded edges of the blank are freed from the templet, die, former, or presser. Also infolders or folders, as they are called. These folders are mounted upon the bed in such a manner that they may be moved toward and from each other. They are constructed in such a man