The inventions of Nelson Platt and of Alfred Churchill,
patented, the former June 12, 1849, the latter March 3, 1841
(harvesters), contained nothing which antedated the peculiar device
secured by patent to Byron Dinsmore, February 10, 1852, for
harvesting and mowing machines, assigned July 2, 1859, to Kirby and
Osborn, and surrendered and reissued 28 January, 1862.
Kirby and Osborn filed a bill in the court below against
Whiteley and others, to enjoin them from infringing their patent,
originally issued to Byron Dinsmore, February 10, 1852, assigned to
them the complainants, Kirby and Osborn, July 2, 1859, and
surrendered and reissued 28 January, 1862. The court granted the
injunction, and the defendants appealed.
MR. JUSTICE NELSON delivered the opinion of the Court.
The patent is for improvements in harvesting and mowing
machines, and consists chiefly in this, namely the construction and
combination of two frames, the one for supporting the driving wheel
and the other for supporting the cutting apparatus, and hinging the
same together in such a manner that the driving wheel and cutting
apparatus may each follow the inequalities of the ground
independently of each other, and to be bolted rigidly together for
supporting the cutting apparatus at any desired height. After
giving a description of the machine sufficiently exact and precise
as to enable anyone skilled in the art to construct it, the claim
is as follows:
"The hanging of the driving wheel in a supplemental frame, or
its equivalent, which is hinged at one end to the main frame,
whilst its opposite end may be adjusted and secured at various
heights or be left free, as desired, whereby the cutting apparatus
may be held at any given height for reaping or be left free to
Page 78 U. S. 679
accommodate itself to the undulations of the ground for mowing,
as substantially described."
The surrender of this patent was made by the assignees on
account of a defect in the claim, the patentee having failed to
embrace within it the hanging of the driving wheel in the
supplemental frame, and its connections with the main frame to
which the cutting apparatus is attached, and by means of which both
the driving wheel and cutting apparatus were made to following the
inequalities of the ground independently of each other. These
devices were fully described in the specification, drawings, and
model, and were embodied in the construction of the first machines.
The patent, we have seen, was granted February 10, 1852. The first
machine was built and successfully tried in the harvest of 1850.
Twenty-one were made and sold the next year (1851), and fifty or
sixty the year following, all entirely successful.
The defendants set up in their answer and gave in evidence two
patents for harvesters which they claimed antedated this invention
The first, Nelson Platt's, of La Salle County, Illinois, June
12, 1849; the second, Alfred Churchill's, Kane County, same state,
March 3, 1841. There is no proof in the record in respect to these
patents. Whether any machine was ever constructed under either of
them, or went into practical use if constructed, or whether each
were but an imperfect and abandoned experiment, are matters
apparently regarded by the counsel who introduced them as of no
great importance. Nothing appears to be known in respect to them
except that they were found among the records of the patent office,
and have relation to the subject of grain harvesters. Whatever may
have been their merit, however, as harvesters, they can have no
material bearing that we can perceive upon this invention of the
complainants, for, as it respects the peculiar device for which the
present patent was granted, it is not to be found in either of them
-- neither in the specification or claims.
A rejected specification and drawing were also given in
Page 78 U. S. 680
evidence of E. P. Covett, of Philadelphia, on the part of the
defendants on the point novelty, but this was an application made
to the patent office as late as 1852, two years after the invention
This closes all the evidence in the case on the question of
novelty, and which requires no further comment.
The only remaining question is as to the infringement. The
defendants' answer itself goes far towards making out an
infringement, stripped of the coloring generally given to a case
stated in the pleadings. It is admitted, the defendants' harvester
is constructed with a main frame which carries the working parts of
the machine -- that is, the cutting apparatus -- and to this main
frame is attached a secondary (supplemental) frame, which carries
the driving wheel. The secondary frame, it is said, is not left
free to play up and down, but is prolonged beyond the driving wheel
to a standard in the form of an arc that rises from the rear of the
main frame. This standard is provided at various heights with
holes, which secure said secondary frame, and with it the axle of
the driving wheel at certain fixed distances above the main frame.
Defendants say that their driving wheel is not hung upon a crank
shaft, and that their main and secondary frames are hinged in the
opposite direction from that in which they are attached in the
machine patented to Dinsmore. We have a model of the defendants'
machine before us, and the above is a pretty fair description of
it, and it will be seen to embrace every substantial element found
in the construction and arrangement of the Dinsmore machine. There
are the two frames, the main and secondary, or supplemental, the
one supporting the cutting apparatus, the other the driving wheel,
hinging the two frames together in such a way that the driving
wheel and cutting apparatus may each follow the inequalities of the
ground independently of each other, and may also be bolted rigidly
together for supporting the cutting apparatus at any fixed height.
Every advantage in reaping or mowing uneven or stony ground by the
new and peculiar device of Dinsmore in the construction and
arrangement of his machine, is found in that of the
Page 78 U. S. 681
defendants. The form in some parts is changed, their two frames
are hinged at different ends, different names are given to the same
things, and different mechanical arrangements in the gearing are
used to produce corresponding results, and, as is claimed, better
results, although we perceive no evidence of this in the
An expert, Mr. Young, an experienced machinist engaged in
building this class of machines, who had a model of the defendants
before him, was inquired of if he found in its construction two
powers -- the one for supporting the driving wheel, and the other
for supporting the cutting apparatus? He answered that he did. He
was inquired of if he found the two frames hinged together in such
a manner that the driving wheel and cutting apparatus may each
follow the irregularities of the ground independently, and also if
they were bolted rigidly together for supporting the cutting
apparatus at any desired height? He answered that he did. He was
asked if he found the driving wheel represented in the model as
hung in a supplementary frame? He answered that he did. Also if he
found the supplementary frame hinged at one end to the main frame?
He answered that he did, and that its opposite end could be
adjusted at various heights or left free, as desired. Do you find
these several parts so constructed and arranged that the cutting
apparatus may be held at any desired height for reaping, or be left
free to accommodate itself to the undulations of the ground, for
mowing? He answered he did.
Another witness, Mr. Dunning, supports in all respects the
evidence above given, and there is no substantial contradiction of
this account of the construction and arrangement of the defendants'
There is a good deal of conflicting evidence on a point that is
not at all controlling in the case -- namely whether the
defendants' machine would work well in mowing without adjusting the
wheel frame to the standard firmly at a given height. There are
respectable witnesses on both sides of this question.