LACOMBE, Circuit Judge
(after stating the facts as above). Afilie patent states that the object of the invention is to detect signatures or sheets which for any reason are imperfect, reversed, or are variations from the predetermined thickness, and to immediately act upon devices to stop the machine, so that the same may be removed or rectified. According to the specifications the
- — '“invention comprises in a signature-gatherer and in combination with a stopping and starting mechanism and a signature-gripper of any well-known or desired character, a device intermediate of said devices, which is actuated and controlled by the latter or signature-gripper device and which exercises a control upon the former device — that is, the device for stopping and starting the machine — whereby variations from the predetermined thickness of the signature or sheet act upon the aforesaid intermediate device for their detection and stopping the machine. I prefer that this intermediate device shall be in the form of adjustable plates mounted upon an arm that is adapted to be moved into contact with the stopping and starting mechanism and that an arm and finger moved by the gripper device shall move over the surface of these plates and pass through a regulatable aperture between the same, providing the sheets and signatures agree in thickness, and in case they do not agree and are too thick or too thin this finger shall stop on the surface of said plates and with the further movement of the gripper stop the machine, and in connection with these devices I employ means for adjusting the closed relation of the gripper-jaws in proportion to the thickness of the signature or sheet, this adjustment acting to control the position of the aforesaid finger, so that it will truly pass through the aperture between said adjustable plates.”
In considering the prior art, the Circuit Court referred to certain “signature-gathering machines on the market involving the same principles.” We are not satisfied from the evidence that these were prior to the date of invention, which was proved to be several months prior to the filing of the application. In neither such machines nor in [376] the prior art disclosed in patents and publications did the Circuit Court find anticipation and it held the patent to be valid, in which conclusion we concur. The only subject which need be discussed is the question of infringement.
The claims are unnecessarily numerous, 20 in all, of which Nos. 1, 2, 3, 5,'6, 7, 8, 9, 12, 13, 14, 15, and 20 are involved. It will be sufficient to quote the first three, since the others are as detailed as are Nos. 2 and 3, some of them more so:
“1. In a signature-gatherer, the combination with a stopping and starting mechanism and a signature-gripper, of an adjustable device intermediate of said mechanism and gripper and actuated and controlled by the gripper and exercising a control on the said mechanism, whereby variations from the predetermined thickness of the signatures or sheets act upon the intermediate device for their detection and stop the machine.
“2. In a signature-gatherer, the combination with a stopping and starting mechanism, and a signature-gripper, of means for adjusting the closed relation of the gripper-jaws in proportion to the thickness of the signature or sheet, a device intermediate of the stopping and starting mechanism and gripper, actuated and controlled by the latter and exercising a control on the former device, whereby variations from the predetermined thickness of the-signature or sheet act-upon the intermediate device for their detection and stop the machine.
“3. In a signature-gatherer, the combination with a stopping and starting-mechanism and a signature-gripper, of means for adjusting the closed relation of the gripper-jaws in proportion to the thickness of the signature or sheet, a part, movable with the gripper, a lever having a part adjustable and co-acting-with said movable part, and which parts are intermediate of the stopping and starting mechanism and gripper, whereby variations from the predetermined thickness of the signatures or sheets act upon the part movable with the gripping to shift the position of the same and cause the engagement thereof with the adjustable part of the lever to swing the same and stop the machine.”
The patent shows a grip-lever, D, which swings towards a pile of signatures, and, after it has seized one of them, swings back to a carrier on which the signature is dropped, whereupon the grip-lever moves forward again. So much is old and the defendant also uses a swinging grip-lever. Both levers have gripping jaws at the lower end which open to receive the signature, close on it, and subsequently open to let it fall on the carrier. In the machine of the patent the upper jaw is rigid and the lower jaw moves. The reverse is the casein the defendant’s machine, which is an immaterial difference, involving no change of function. It is apparent that, when the jaws, are closed on two sheets of paper, they have come closer together than when they are closed on four sheets. The movable jaw being a lever, it is also apparent that, if the gripping end of it varies in position when it has gripped varying thicknesses of paper, the other end of the same lever will also vary in position, and so will whatever part, is attached to such end. At this further end of complainant’s lever is a rod, D3, D4, which runs upward a considerable distance and has a short arm, D30, and a long arm, D15, nearly at right angles with the rod. This rod is pivoted on a projection of the gripper-lever in such a way as to permit motion of both the short arm and the rod and long arm on the pivot. The rod, pivot, and arms move as the gripper-lever swings and also move on their own pivot. Without going into-[377] elaborate details of the mechanism, it may be stated that, when the gripper-lever has moved in and the signature is between the open jaws, an auxiliary shaft, I?, through connecting parts pulls up the short arm, D30, which depresses the rod, D3, D4, and makes the lower jaw close on the signature. The gripper-lever and all parts then move out, and, when in proper position, a further movement of the auxiliary shaft, B, through connecting parts, depresses the short arm which causes the rod, D3, D4, to rise and the lower jaw to open. The long arm, Dio, is the detector arm provided with a finger or projection at its extremity. It is rigidly connected with the rod. Since the rod is connected to one end of the pivoted movable jaw, its position in space when the jaws are closed will be influenced by the thickness of the package of paper on which the movable jaw has closed, and that influence is also felt in the detector arm. By reason of the location of pivots and proportion of parts, changes of position in the gripping end of the jaw are exaggerated at the end of the detector arm. A unit of displacement in space at one end of the chain of mechanism becomes many units at the other end. Therefore such a slight difference as would be caused at the jaws by the absence of a single sheet from a signature of 16 sheets is sufficiently increased at the finger of the long arm to allow it to be utilized as a detector of such absence. This is accomplished by interposing the stopping and signaling mechanism in the orbit which the detector arm follows, as it moves in and out with the swing of the gripper-lever and up and down with the rod under the action of the auxiliary shaft, and then opening a pathway through the interposed parts of such stopping and signaling mechanism, which the detector finger may travel unobstructed when its movement in space is such as it will follow when the predetermined number, of sheets are gripped. This opening, however, is so circumscribed that if, by reason of an abnormal number of sheets affecting the position •of the movable jaw, the detector finger travels in an abnormal orbit, it will contact with one or other side of the pathway, and operate the stopping and signaling mechanism. This is accomplished by gauge-plates, 333, B4, on a prolongation of a swinging lever, B, which connects with the stopping devices. These gauge-plates, the specification says, “are adjustable towards and from one another by (screws) to increase or lessen the diameter of the aperture or slot through which the gauge-finger (detector finger) is adapted to pass.”
This device, the detector arm and finger in co-operation with the movable gauge-plates, is the invention of the patent (see first quotation supra). It is the device, intermediate the stopping and starting mechanism and the signature-gripper, “which is actuated and controlled by the latter or signature-gripper and which exercises a control upon the former device — that is, the device for stopping and starting the machine.” The specification, as it seems to us, goes into entirely unnecessary details as to those other mechanisms, which the patentee nowhere asserts to be his invention. In consequence it is difficult to eliminate the essentials from the nonessentials, and one is likely to be misled by differences between parts of the described machines of complainant and defendant which in reality have nothing to do with, the ■device claimed.
[378] Defendant’s entire machine differs in many respects as to parts and arrangements from the entire machine described in the specifications. The stopping mechanism is hung upon a separate shaft. The opening and closing of the jaws is effected not by a rod, but by a toggle and spring which are operated by a sliding pin in the gripper-lever. It is not necessary to recount all the differences, since we are concerned only with so much of the device as deals with the detector arm. Attached to the swinging gripper-lever of defendant is a pivoted arm, one end of which, is connected by a rod, D3, D4, with the outer end of the movable jaw (the upper jaw in defendant’s machine). At the other end of the arm is a projection or finger which describes an orbit as the gripper-lever swings and the jaws open and close. In the path of this moving finger is located a prolongation of the stopping mechanism, presenting an opening through which it moves under normal conditions, but which opening may be regulated as to size and location by adjustable dogs. Through the action of the movable jaw and of the rod, D3, D4, the position in space of the finger, or detector, is changed as the thickness of the package of paper changes, and by reason of the proportion and position of the parts the difference is exaggerated so that the dogs may be easily adjusted to bring the stopping mechanism into operation by intercepting the moving finger when it follows an abnormal orbit. This device seems to us to be a fair equivalent of the detector mechanism of the patent; it effects the same function by the operation of similar parts similarly arranged.
By reference, however, to the first quotation, it will be seen that the patentee in connection with his device employs means for adjusting the closed relation of the gripper-jaws in proportion to the thickness of the signature, this adjustment acting to control the position of the finger, so that it will truly pass through the aperture between the adjustable plates. This “means for adjusting the closed relation of the gripper-jaws” is found in the rod, D3, D4. This is a two-part straight rod. The lower part of D4 is inserted into the upper part of D3, and by means of screw-threads, a screw-cap, hooks, etc., the combined lengths of the two parts of the rod can be altered easily and' with great nicety “to adjust the grippers for signature or paper of different thicknesses.” There is much conflicting testimony, as to this part of the machine, but we are satisfied that this adjustment is essential to the efficiency of the gripper-jaws, and that in this respect there is a difference between the two machines. Farther along in the train of mechanism which operates the jaws of the patented device there is a spring, D21, and we were at first impressed with the contention of complainant’s expert that in it was to be found the operative force which closed the jaws. More careful study of the device, however, has satisfied us that, although it may take up a bit of lost motion, the opening and closing of the jaws are both effected by the unvarying sequence of movements of the auxiliary shaft, and, unless the length of the rod, D3, D4, is adjusted, as the specification says, “for signatures of different thicknesses,” the jaws will not close sufficiently to be perfectly efficient. The defendants’ jaw-closing device — the toggle and spring — seems capable of effecting a full closing, metal to metal, without so much adjustment. The testimony supports this conclu[379] sion. Defendants’ rod, D3, D4, is made of two parts with turnbuckles, an arrangement which they contend is a mere shop expedient to cheapen original construction. Since infringement was charged these turn-buckles have been riveted in place so that the user can no longer by adjustment alter the length of the rod, and with this change the jaws operate perfectly with every change of thickness of signature, closing metal to metal when there is no signature between them. We therefore find that defendants’ rod, D3, Dá, is not an infringement of complainant’s rod, D3, D4. The result is that there is no infringement of any claim in which the rod, D3, D4, is made an element as “means for adjusting the closed relation of the gripper-jaws in proportion to the thickness of the signature or sheet.” This eliminates every claim except the first.
The length of the rod, D3, D4, affects the position in space of the detector finger, and defendant contends that the patent must be restricted to an adjustment of that finger by the screw-cap arrangements which regulate the length of the rod. But the specification does not so state. It asserts that the operation of the finger in making clearance or encountering obstacles is effected by the shifting of the gauge-plates, on the arm, B, which as we have seen is the equivalent of the adjustment of dogs, B3, B4, of defendants’ device. The regulation of the length of the rod may be essential to the efficiency of the gripper-jaws, but it is not essential to the clearance or contact of the detector finger with parts of the stopping mechanism. Claim 1 is confined to the adjustable device intermediate the gripper mechanism and the stopping mechanism. It presupposes an efficient gripper-mechanism and an efficient stopping mechanism. The patent discloses such mechanisms, both efficient. The defendant by using a mechanism to make the gripping efficient which differs from complainant’s does not escape this claim, so long as the “adjustable intermediate device” is the equivalent of the “adjustable intermediate device of the patent,” which we are satisfied that it is.
The decree is reversed and cause remanded, with instructions to enter a decree in favor of complainant for infringement of claim 1 only. Since neither side has prevailed as to all the claims involved, no costs to either side.
Ordering Reargument.
PER CURIAM.
A reargument is ordered on the single question whether the prior art negatives invention under claims 1 and 19 as this court has construed them. The argument must be strictly confined to this single question, and one-half hour will be allowed to each side. The briefs filed on main argument may be used, or new ones if the parties prefer.