Statement of the Case.

decree of the Circuit Court dismissing his bill as to all but the two patents above named.

In the patent to Olin for an improvement in harvesting machines, the patentee stated in his specification as follows: "In that class of harvesting machines where the grain is received upon a carrier-platform and elevated over the drivewheel by an elevator and deliverer to the binders or an automatic binder, it is desirable that there shall be no stoppage in the flow of the grain in its passage to its place of delivery; that the butts of the grain shall be carried up parallel, or nearly so, with the heads of the grain, so as to deliver the grain in proper shape for binding purposes, and that the grain shall be delivered to the receiving-table so that it can be bound at or near the middle.

The object of this invention is to provide devices for attaining all of these results; and it consists in interposing a roller between the lower end of the elevator and the inner end of the grain-carrier, to facilitate elevating the grain and prevent clogging at that point, and prevent the grain from being carried down or falling through between the elevator and carrier; in providing a belt or chain at the grain side of the machine for elevating the butts of the grain, supported on a swinging bar, so that it can be adjusted, according to the length of grain being elevated, to deliver the grain so that it can be bound at the middle; in devices for operating and adjusting the elevator for the butts; in the peculiar construction of the cover; in arranging and operating the belt for the butts so that it prevents any clogging by short grain at the heel of the sickle; in arranging the device for elevating the butts so that it will bear against the butts of the grain and crowd or move the grain back on the elevator toward the centre, for the purpose of straightening the grain in its passage up the elevator, and delivering it so that it can be clasped or bound near the middle, to facilitate the ease of binding; and in the several parts and combination of parts hereinafter described as new." Here follows at great length a description of the device claimed to be novel.

The specification concludes as follows:

Statement of the Case.

"The butts of grain are heavier than the heads, and consequently lag behind unless some means are provided to make them move faster than the heads. In order to elevate the butts even with the heads the belt or elevator Q is so arranged that the teeth b will engage with the butts of the grain on the roller I and carry them up while the heads are being carried up by the elevator-belts M. The lower pulley, c, is to be so arranged that it will permit the teeth b on the elevator Q to clear the end of the roller and engage the butts, and this pulley c is located as close to the main frame as is possible and permit the operation of the butt-elevator, which location of the pulley brings the butt-elevator in position to enable it to catch any short grain, which short grain is liable to fall down and be caught by the heel of the sickle and clog the sickle. By locating the lower pulley, c, of the belt Qat the proper distance above the main frame A the teeth bon the elevator will come in contact with such short grain and force it forward on to the carrier-platform, thus keeping the heel of the sickle clear at this point."

The following drawing exhibits the "swinging elevator" feature of the patent:

Statement of the Case.

The plaintiff claimed an infringement of the first claim of the patent, which reads as follows:

"1. In combination with a harvester elevator a swinging elevator pivoted at its lower end and suitable devices for shifting its upper end, whereby the swinging elevator forms a means for elevating the butts of the grain and delivering grain of different lengths at the same point, substantially as specified." In the patent to Steward for improvements in grain binders the patentee stated

"The object of my invention is to provide means, that, combined with an automatic grain binder, shall make it automatically regulate the position of the band on the gavel — that is, shall automatically place the band upon the gavel in its proper position relative to the length of the grain without any aid or attention from the operator-and its nature consists in locating, in such a position as to be influenced by the heads of the incoming grain, or gavel or bundle, a device to be moved thereby, the said device connected with means for adjusting the relative positions of the said grain and the binding mechanism."

The following drawing exhibits the patented device:

Opinion of the Court.

The plaintiff claimed an infringement of the twentieth and twenty-first claims of the Steward patent, which read as follows:

"20. The combination, in a grain-binder, of moving buttadjusting mechanism and the board d', substantially as described.

"21. The combination of the swinging butt-adjuster, the arms d2, d3, d', and the board d', pivoted to the swinging buttadjuster, substantially as described.”

Upon a hearing upon pleadings and proofs, the court below dismissed the bill upon the ground that the Olin patent was not infringed, and that the Steward patent was invalid by reason of a certain device theretofore used, which was held to have anticipated the patent. From this decree plaintiff appealed to this court. The opinion of the Circuit Court is reported in 40 Fed. Rep. 236.

Mr. Thomas A. Banning for appellant.

Mr. Philip C. Dyrenforth for appellees.

MR. JUSTICE BROWN, after making the foregoing statement, delivered the opinion of the court.

1. The Olin patent relates to a harvesting machine, and more particularly to a certain method of elevating the grain from the harvester platform, upon which it falls as it is cut, to the top of the delivery apron, where it is discharged from the machine either into the hands of a binder, or into a mechanical grain binder, as the case may be.

In machines of this description the grain, as it is cut, falls upon a platform, and is carried to the base of an endless belt. provided with teeth, which seize the grain and carry it over the driving wheel of the harvester, up to a higher level than that where the binding is done, from which point it falls a short distance to reach the binder. The side of the elevator upon which the grain ascends is termed the grain side; the side upon which it descends to the binder is called the stubble side. In the operation of a harvester of this kind it was ob

Opinion of the Court.

served that, as the grain mounted the elevator on the grain side, the butt end of the stalks, being heavier than the heads, exhibited a tendency to lag behind, so that the stalks assumed a diagonal position across the harvester platform. The consequence of this was that the heads of the stalks were delivered to the binder in advance of the butts, and obliquely a peculiarity which interfered with the proper binding of the grain. In addition to this, the different lengths of the stalks required some means whereby the binding band might be placed centrally to their lengths, that is, if the stalks, after being cut, are twelve inches long, the band should be placed about six inches from each end, but if the stalks are five feet long, it should be placed about two and a half feet from each end. To obviate the difficulty of the butts lagging behind, and also to secure proper delivery of the grain as to length, Olin invented an auxiliary belt located at a right angle to the main belt, but moving in the same direction and at somewhat greater speed. This auxiliary belt was also provided with teeth, which engaged the butt end of the stalks, and, moving faster than the main belt, kept the butts up to a level with the heads. As shown and described in the patent, this auxiliary belt was arranged with one end located at the lower end of the main belt and near the carrier platform, and the other end at the apex of the main belt or the highest point at which the grain ascends. The mechanism was intended to act upon the swath of flowing grain, and change its direction, pushing the stalks end wise, so that they might be delivered to the binder in proper position to be bound in their centre, and also hastening their butts so that the stalks might not be delivered diagonally, but parallel with each other and with the flow of the main belt. The claim describes this swinging elevator as pivoted at its lower end, with suitable devices for shifting its upper end, whereby it forms a means for elevating the butts of the grain, and delivering grain of different lengths at the same point.

Devices bearing certain similarity to this, and having in view the performance of a like function, were not wholly unknown to the prior art. These devices, though not claimed