MR. JUSTICE BROWN, after stating the case, delivered the opinion of the court.
The question of infringement in this case turns largely upon the construction to be given to the first claim of the Seabury patent. If, as set forth in his specification, he is entitled to claim broadly, by the continuous operation of a single lever, the performance of the three movements necessary to open the breech of a breech-loading gun, viz., unlocking the breech-block, pulling it back into the receiver, and swinging it to one side, the Dashiell patent, which effects the same movements in substantially the same way, would probably be an infringement. It is claimed that, prior to the Seabury patent, those three movements were separately made by hand, and that the novelty of his invention consists in their successive performance by the single sweep of a lever.
To ascertain whether he is entitled to this broad claim, it is necessary to consider somewhat at length the state of the art at the time the Seabury patent was issued. In modern warfare
John P. Schenkl purported to do this in the patent issued to him August 16, 1853, performing the movements "through the intervention of appropriate cams, catches and springs, by the motion of a single lever, worked by the hand of a gunner." The movement of the lever was not continuous, and the gun was of a different class, opening in the middle of its length, tipping up its breech and receiving the cartridge at the muzzle of its rear section, like the ordinary muzzle loader. The lever is necessarily given a backward and forward motion to support the two portions of the gun, and turn the breech portion upward, and the same lever is also given another backward and
The patent to Cochran, of November, 1859, throws no light upon the question in this case. The same may be said of the patent to Goodwin of May, 1864. While the patent to Driggs and Schroeder of April 5, 1887, shows a decided advance in the method of breech loading, there is nothing in the invention to indicate that the patentee had in mind the peculiar features claimed for the Seabury patent. The English patent to Farcot, a French engineer, issued the same day as the Driggs and Schroeder patent, relates to an apparatus so arranged that, by the rotation of a single axis, the successive movements necessary for introducing or withdrawing the breech-block are performed with ease, rapidity and exactness. Mechanical means are utilized to operate the breech-block in all three of its movements, for opening as well as closing, and all of them are performed through a crank handle. Its appearance marks a step in advance in the development of the breech mechanism, and the accomplishment of the three motions in one.
British patent No. 9813 to Albert Sauvée, issued May 4, 1888, also exhibits mechanical gearing for operating a slotted screw breech-block, by a continuous movement in a given direction. In this patent the rotation of the breech-screw, its extraction and the rotation of the carrier succeed each other, while the hand-crank is being turned in the same direction. The breech is closed by working the handle in the opposite direction.
The British patent to Sauvée of July 4, 1887, No. 9453, also discloses a breech mechanism for operating a slotted screw-breech block, giving all the three necessary movements of rotation, retraction and swinging aside, by the continuous movement of a simple hand lever. The breech-block in this patent is of conical form and not cylindrical, as in the other patents. The general arrangement shows a lever attached to the breech-block near its middle, and connecting with the carrier by means of a fulcrum, so that power applied to the end of the lever will cause the breech-block to move
British patent No. 7435, granted February 12, 1889, to Canet, also described, in the first claim, "an improved construction, whereby the opening of the breech of guns can be effected completely by a rotary movement always in the same direction, the rotation of the breech-screw being effected by the action of a rack mounted upon an endless screw, upon a toothed sector on the breech-block; the longitudinal movement of the breech-screw being effected by the direct action of a pinion upon the threads of the breech-screw; and the pivoting of the bracket being effected by the direct action of the operating shaft upon the endless vertical screw."
Still another system, in which the three motions required of the breech-block are accomplished by a single movement of a lever, is found in the British patent No. 7195 to Nordenfeldt, May 17, 1887. In its general principle of effecting these movements, it bears a closer resemblance to the Seabury patent than any other exhibit. "The invention," says the patentee, "relates to breech-loading guns in which the breech is closed by a block entering the breech opening, and having spaced screw-threads upon it engaging corresponding spaced screw-threads, within the breech of the gun. In such guns I give all the necessary movements to the breech-block by means of a lever handle and axis rotating through the are of a circle. The same movement also actuates an extractor and gives the necessary movement to it for withdrawing the cartridge case from the chamber of the gun."
The patentee Nordenfeldt thus describes the operation of his device:
"In opening the breech, as soon as the lever handle is moved sufficiently far to disengage the screw-threads, a shoulder upon or moving with the lever handle comes against another shoulder upon the withdrawing arm, and this then commences
The lever in that patent is entirely separate from the carrier, and moves independently of it, except when the breech-block is fully supported by the carrier, at which time it moves with the latter. The breech-block is rotated by a rack sliding on the face on the breech of the gun, connecting with an arm or projection on the driving shaft. A large model of the breech mechanism of this patent, made from the drawings at the Navy Department, was put in evidence, with written directions for working it.
It is claimed by the plaintiffs in this connection that the model of the Nordenfeldt patent, so made and exhibited, is inoperative, and hence cannot be said to be an anticipation of the first claim of the Seabury patent; and such seems to have been the view of the learned judge who delivered the opinion of the Circuit Court. It does not clearly appear, however, whether this inoperativeness is due to a fault in the original construction of the machine, or to a slight defect in the model made from the drawings in the Navy Department. This model was constructed largely of wood, and might very possibly have become so worn by experimental use, as to fail to
But, however this may be, it is clear that the model in question could be made operative by a very trifling alteration, increasing the friction between the bolt and the guideway in the withdrawing arm. Either the filling piece was made a little too small or else it had become worn by constant use of the model. That this was simply a question of friction was readily demonstrated by slipping a thin piece of paper between the filling piece and the bottom of the guideway, when the device appeared to be fully operative. The conclusion is irresistible that the alleged inoperativeness was not one due to any inherent defect in the mechanism described in the patent, but to a want of exactness in the model, due either to imperfect construction, or to the employment of another material than was contemplated in the patent.
As several of the patents above described show that, at the date of the Seabury invention, it was no longer a novelty to perform the three movements necessary to open and close the breech by the continuous movement of a single lever, it follows that the first claim of this patent cannot receive the broad construction claimed, but must be limited to the precise mechanism described. This is for a combination, 1. Of a
It may be doubtful whether, in view of the Nordenfeldt patent, there is any novelty even in the exact combination described in this claim, since in both cases there is a vertical axial bolt or pivot hinged to the breech of the gun; a crank arm secured to this bolt and operating the rack; a retractor arm permanently secured to the breech-block and hinged to the breech separate from the carrier, and moved independently of it; a carrier hinged to the breech-block, the carrier and retractor being capable of moving together, while the breech-block is on the carrier; the movement being transmitted from the retractor to the carrier through the breech-block. But whether the Nordenfeldt device be an exact anticipation or not, the Dashiell device differs from the Seabury patent much more than the latter differs from the Nordenfeldt machine, since the retractor of the Dashiell device is not hinged to the breech at all, but is hinged to the carrier; and is not separate from the carrier, but is a part of it, and when the carrier moves, the retractor also moves. In the Seabury device the carrier and retractor move independently of each other; but as the claim says, they are separate from each other, whereas in the Dashiell device they are so intimately connected that when the carrier moves, the retractor moves with it. It is true that the retractor, though hinged to the carrier when turning on its pivot, acts as it would if it were hinged to the breech; yet, Seabury having restricted himself to a retractor hinged to the breech separate from the carrier, in view of the state of the art, which appears to have been much more advanced than the plaintiffs are willing to concede, we think such difference is material. As before observed, in the Dashiell device the retractor is not hinged to
The truth is that, at the time the Seabury patent was taken out, the scope for invention was much more limited than Seabury apparently supposed. The mutilated form of screw-block, apparently a French device, had been in use for many years. Of course the use of this block implied some method of withdrawing it from the gun, swinging it to one side and returning it to the bore. To accomplish this several devices were invented, most of them employing a swinging lever, a carrier and a retractor. In some cases, as in the Canet patent, a toothed rack was used to rotate the breech-block, and in others a cam, and in two or three of these patents these movements were accomplished by the continued operation of a lever. Nothing, in fact, was left to the ingenuity of the inventor but to devise new variations upon this combination, and, in our opinion, Dashiell's device is as great a departure from Seabury's as the latter is from the devices which preceded it.
We are, therefore, of opinion that, under the construction we are compelled to give the first claim of the Seabury patent, the Dashiell device is not an infringement.
This conclusion also renders it unnecessary for us to consider the questions discussed by the Court of Appeals in its opinion, in respect to one of which see Bèlknap v. Schild, 161 U.S. 10; but for the reasons stated, its decree, dismissing the bill, is