Full opinion text
THOMAS, District Judge. This is a suit brought to restrain infringement of letters patent No. 1,429,201, issued September 12, 1922, to William S. Gubelmann, for improvements in adding and recording machines. The Remington Cash Register Company, Inc., has the exclusive license thereunder to make, use, and sell cash registers. The bill charges the defendant with infringement as to a number of its various makes of cash registers, and seeks an injunction, accounting, and damages. The plaintiff withdrew its charges against all models made by defendant, except as to the so-called class 1700 and class 2000 machines, thereby materially narrowing the issues to he discussed and decided here. It is stipulated by the parties that the defendant sold in this district cash registers exemplified by certain of defendant’s machines, which are in evidence, and marked Plaintiffs’ Exhibits 3 and 4, respectively. The defenses upon which the defendant relies are, broadly stated, the invalidity of the patent in suit and noninfringement. As against validity, the defendant, in. its answer and brief, has set forth at length 17 reasons why the patent should be held invalid; but for the purposes of this discussion they may be 'grouped or summarized under four main topics or heads, viz.: First, because of undue delay in the Patent Office; second, because of abandonment; third; because of laches, estoppel, etc.; and, fourth, because of inoperativeness. While the Gubelmann patent in suit is directed more especially to an adding machine, ■ and defendant’s machines are cash registers, adding machines and cash registers belong to the same art, and cash registers are merely adding machines adapted to specific work. Analogous — in fact, identical — mechanical organizations occur both in cash registers and in adding machines, and in the present suit adding machines and cash registers are referred to by the witnesses, without any attempt to distinguish one art from the other. The patented inventions 'in the Gubelmann patent which are complained of in this suit all relate to the adding and recording mechanisms of the defendant’s cash register machines. The Gubelmann Patent. Gubelmann’s patent discloses an adding machine characterized by a plurality of sets of totalizer wheels and associated printing mechanism capable of printing items introduced into the sets of totalizer wheels, and also of printing totals under control of either of the sets of totalizer wheels. It is further characterized by mechanism whereby items introduced are printed, a subtotal may be printed, and the subtotalizer cleared, without disturbing the amount standing on a grand totalizer. Another feature of the Gubelmann machine is that of a plurality of sets of totalizer wheels having the successive denominational register wheels of one set of totalizer wheels interspersed with the totalizer wheels of a totalizer of another set, so that totalizer wheels of like denominational orders are grouped together, and with the printing mechanism having elements corresponding to the denominational orders of the totalizer wheels, and arranged so that the printing mechanism may co-operate with the totalizer wheels of any set of totalizers selected by the operator. This machine also provides that, when a subtotal is printed, mechanism may be rendered effective ‘during this cycle of operations to reset the subtotalizer wheels to zero, thus clearing the subtotalizer after the printing has occurred, and this is done without disturbing the amount standing on the grand totalizer wheels. This arrangement permits the accumulation of a grand total, the printing of an itemized record, and the printing of a subtotal thereof, without disturbing the grand total, which may be printed at the end of the day or whenever desired. This Gubelmann machine is also so designed as to be capable of printing a grand total and in the same cycle of operations to clear the grand totalizer. The clearing operations are optional with the operator, who may print subtotals or grand totals with or without clearing these totalizers, as is desired. It was common in the art, prior to Gubelmann, to provide suitable carrying mechanism between the several denominational wheels of a totalizer, and Gubelmann might have used carrying mechanism old in the art; however, he discloses carrying mechanism of his own design, whereby, when any denominational wheel of either totalizer makes a complete revolution, the next higher order denominational wheel is advanced one step to register the necessary carry, and overflow wheels are provided and are actuated by the same kind of gear segments as are used to drive the key-controlled totalizer wheels. These outstanding characteristics may properly he designated as the law of the Gubelmann machine. When a key is depressed in the Gubelmann machine, certain differential mechanism is rendered effective to control a pivoted adding gear segment of the denominational order corresponding to the key depressed, and to limit the movement of this gear segment to an amount corresponding ‘to the key operated. Prior to the movement of this gear segment, it is placed in engagement with its corresponding denominational order adding wheel, and as the gear segment swings on its pivot the totalizer wheel with which the gear segment engages is turned an amount in an additive direction equal to the value of the op’erated key. At the same time a subtotalizer member is also turned a corresponding amount in an additive direction, whereby the amount is registered in both the grand totalizer and the subtotalizer. Printing mechanism is connected with the adding gear segments in such manner that numeral type corresponding to the differential movement of the adding gear segments are presented to the printing point," and at the proper time printing hammers are actuated to drive type against the paper on the platen and imprint a record of the item introduced into the machine during the adding operation. The gear segment is then withdrawn from the adding wheel, and in the subsequent operation of the machine the gear segment' is returned to normal position. Zero stop lugs are provided to prevent the operation of any gear segment other than that which corresponds to the denominational order of the key depressed. The machine at each adding operation thus registers or adds into both a grand totalizer and subtotalizer, and also makes a printed record of the item added. These operations are repeated during a series of transactions, and totals are thus accumulated on a plurality of totalizers. In Gubelmann’s organization he provides snail cams, one for each denominational order of the totalizers. These snail cams are part of the totalizer mechanism, and rotate simultaneously with the corresponding totalizer denominational elements. When it is desired to take a total, a total key is depressed and the machine operated; but now the adding gear segments, or racks, do not come into engagement with the adding wheels. Instead, certain feeler fingers are moved forward by yielding spring connections to encounter the snail cams and set differential mechanism, which causes the proper type to be brought to the printing point to correspond to the amount standing on the totalizer with which the feeler fingers co-operate. After the type have been brought to the printing point, the printing hammers drive the type against the paper and print the total in the same manner that the item printing was accomplished. The feeler fingers are so constructed as to be capable of co-operation with either the grand totalizer or the subtotalizer, whereby the printing mechanism may be controlled to print either a grand total or a subtotal. When it is desired to print a subtotal and preserve the grand total in the Gubelmann machine, a subtotal key is depressed. This operates mechanism to cause the feeler fingers to shift in position to co-operate with the subtotalizer cams, and if a t'learing key is also depressed, certain gear mechanism rotates the shaft carrying the subtotal members, and also carrying spring pawls which pick up the subtotal members and snail cams of the subtotalizer, and turn the same to zero after the subtotal has been printed. This operation does not disturb the amount standing on the grand totalizer. Where a grand total is to be printed by the Gubelmann machine, the grand total key is depressed, and this time the feeler fingers which control .the printing type come under control of the grand totalizer denominational members, or cams, to position numeral type at the printing point corresponding to the amount standing oil the grand totalizer,, and the printing hammers operate to print the grand total. The operation of the machine up to this point, not only has positioned the printing type at the printing point, but has caused the gear segments to differentially descend out of engagement with the grand totalizer, so that each denominational gear segment has been stopped at a position corresponding to the amount standing in its respective denominational grand totalizer wheel. If the grand totalizer is to be cleared, the grand totalizer clearing key is now depressed. This operation brings the gear segments into mesh with the grand totalizer wheels. The gear segments move up while in engagement with the grand totalizer wheels, and each gear segment therefore rotates its corresponding grand totalizer wheel in a non-additive direction, thereby subtracting out of the grand totalizer the amount standing thereon, so that, when the gear segments reach normal zero position, all of the denominational order wheels of the grand totalizer stand at zero, at which time the gear segments are disengaged from the grand totalizer and the grand totalizer thus stands zeroized, or cleared. While the defendant set up hundreds of alleged prior art patents in its answer, only a few of them were referred to, and my task of considering these complicated patents has been greatly reduced by the frank admissions made by Mr. Browne, defendant’s expert, who under cross-examination, on page 706 of the record, testified as follows: “X-Q. 315. Now, Mr. Browne, will you please bear in mind the patents that you have referred to and the machines? Among the patents and machines alleged to be prior to 1900, referred to by you and introduced in evidence here, is there any single one machine or patent that discloses, first, a plurality of sets of totalizer wheels, and, second, printing mechanism for printing items introduced into the sets of totalizer wheels, and for also printing totals under control of either of said sets of totalizer wheels ? A. No, sir. “X-Q. 316. The same type of question. Among the patents and machines alleged to be prior to 1900, referred to by you and introduced in evidence here, is there any singlo one prior patent or machine that discloses, first, a totalizer, and, second, a subtotalizer, and, third, mechanism to accumulate items on the totalizers, and, fourth, mechanism to print said items, and to print, subtotals to clear the subtotalizer, and to retain a plurality of such subtotals on the grand totalizer? A. No. “X-Q. 317. Among the patents and machines alleged to be prior to 1900, referred to by you and introduced here in evidence, is there any single one machine or patent that discloses, first, a plurality of sets of totalizers, with the successive denominational register wheels of one set of totalizers interspersed with the register wheels of a totalizer of another set, and, second, printing mechanism having elements corresponding to the denominational order of the totalizers, and, third, mechanism for controlling the printing mechanism by the register wheels of any set of totalizers? A. No.” In view Of the admitted position of the Gubelmann patent in the art, and the fact that defendant has not relied upon the prior art as being anticipatory, I do not find it necessary to analyze all of the prior art patents set forth in the record in detail, except where such prior art patents have been referred to in an attempt to limit the scope óf certain claims, or where defendant has urged that it has followed the prior art constructions in its class 1700 and class 2000 machines. Defendant’s Class 1700 Machine. Defendant’s class 1700 machine embodies a subtotalizer and a grand totalizer, which are constructed so that the subtotalizer may have its wheels turned to zero without disturbing any amount standing on the grand totalizer. Printing mechanism is designed to print items introduced into the machine, and also to print subtotals of amounts standing on the subtotalizer. The subtotalizer elementa comprise snail cams for each denominational order in the subtotalizer, and in printing subtotals feeler fingers are brought against the snail cams by yielding spring connections to. differentially position numeral type at the printing point to correspond to amounts standing in the several denominational orders of the subtotalizer. The defendant’s class 1700 machine is also constructed so that the subtotalizer members may be returned to zero or cleared, without disturbing the grand totalizer, and in the same cycle of operations in which the subtotal is printed. The depression of the key, in defendant’s class 1700 machine, causes the grand totalizer and the subtotalizer to go into engagement with adding gear segments, and then, these gear segments are differentially operated, according to the value of the key depressed, to turn the members of .the totalizers an amount corresponding to the key operated. After the proper amount corresponding to the depressed key has been introduced into the machine, the totalizers are disengaged from the adding gear segments, which are returned to their normal position out of engagement with the totalizers, and consequently do not disturb the amounts standing thereon. Printing type are connected, through gearing, with each denominational segmental gear, so that the movement of a segmental gear sets up, at the printing point, type numerals which correspond to the movement of the adding gear segment. Consequently, when an amount key is operated, numeral type is set up to correspond to the amount of the item introduced into the totalizers, and shortly after the proper type is presented at the printing point the printing platen drives the paper against this type, and thereby prints the amount of the' item which has just been added into the machine. Since the printing type are directly gear-connected to the segmental gears, the printing types are restored to zero at the end of each adding operation, when the adding gear segments are returned to their normal position. As previously stated, each denominational order of the subtotal]zer is provided with snail cams, and when the operator depresses the subtotal key and operates the machine to take a subtotal, feeler fingers are arranged to contact with these snail cams in such manner as to position subtotal printing type at a printing point to represent subtotal amounts standing on the subtotal members. In defendant’s class 1700 machine, one set of printing wheels is used to print items, and another set under control of the feeler fingers is used to print subtotals. The mechanism thrown into operation when subtotals are printed also comprises a gear member, adapted to rotate a chain of gears which communicate with a shaft carrying certain subtotalizer members, and this shaft is provided with a slot or shoulder adapted to pick up spring pawls carried by these subtotalizer denominational members, and return all of the subto-f talizer denominational wheels and snail cams' to zero after the subtotal has been printed, thereby clearing the subtotalizer in the same cycle of operations in which the subtotal is printed. This is all done without in any way whatever disturbing any amounts which stand upon the grand totalizer. It will thus be seen that there is a remarkable resemblance in operation and in mechanism between the defendant’s class 1700 machine and the patent in suit. While there are structural differences between them, such as, for example, the use of a single set of printing type in the Gubelmann patent to print items and subtotals, and two sets of type in defendant’s 1700 machine, one for printing items and one for printing subtotals, such differences do not affect the question of infringement, provided defendant’s style 1700 machine embodies inventions patented in the Gubelmann patent. Neither the joining of two elements into an integral part, accomplishing the purpose of both, and no more, nor, the separation of one integral part into two, which together do substantially what was done with the single element, will evade a charge of infringement. The rule here applicable was stated by Mr. Justice Curtis, speaking for the Supreme Court in Winans v. Denmead, 56 U. S. (15 How.) 330, at page 343, 14 L. Ed. 717, in the following manner : “Where form and substance are inseparable, it is enough to look at the form only. Where they are separable, where the whole substance of the invention may be copied in a different form, it is the duty of courts and juries to look through the form for the substance of the invention, for that which entitled the inventor to his patent, and which the patent was designed to secure; where that is found, there is an infringement, and it is not a defense that it is embodied in a form not described, and in terms claimed by the patentee.” On the general question of infringement as to both style 1700 and style 2000 machines, the defendant calls attention to the decision of the Supreme Court in Westinghouse v. Boyden Power Brake Co., 170 U. S. 537, 18 S. Ct. 707, 42 L. Ed. 1136, where it was held that the Boyden air brake did not include in its construction the patented constructions of the Westinghouse patent. The court pointed out that, if the claims in the Westinghouse patent were to be construed so broadly as to cover the Boyden device, it would be necessary for the Westinghouse claims to then cover merely the function of the air brake and not the structure. Mr. Justice Brown, speaking for the court, on page 556 (18 S. Ct. 716), said: “We find here no authority to grant a patent for a ’principle’ or ‘a mode of operation,’ or an idea, or any other abstraction. A machine is a concrete thing, consisting of parts, or of certain devices and combination of devices. The principle of a machine is properly defined to be its mode of operation, or that peculiar combination of devices which distinguishes it from other machines. A machine is not a principle or an idea.” Later in the same case, at page 569 (18 S. Ct. 723), Mr. Justice Brown further distinguishes patentable inventions from unpatentable ideas, and on the question of infringement states the law to be that: “Mere variations of form may be disregarded, but the substance of the invention must be there. As was said in Burr v. Duryee, 1 Wall. 531, 573 [17 L. Ed. 650], an infringement is a copy of the thing described in the specification of the patentee, either without variation, or with such variations as are consistent with its being in substance the same thing. If the invention of the patentee be a machine, it will be infringed by a machine which incorporates in its structure and operation the substance of the invention; that is, by an arrangement of mechanism which performs the same service or produces the same effect in the same way, or substantially the same way.” And the court concluded, as it pointed out, that the Boyden structure did not come within this rule. In the case at bar the claims of the Gubelmann patent call for structures, and not merely a principle, or functions, as claimed by defendant, and come squarely within the exceptions pointed out in the Westinghouse v. Boyden decision. In the later case of Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U. S. 405, at page 422, 28 S. Ct. 748, 752 (52 L. Ed. 1122), the Supreme Court had under consideration a claim on a bag-making machine very similar in character to the Gubelmann claims here in issue, and Mr. Justice McKenna, speaking for the court, on page 422 (28 S. Ct. 752), said: “The claim is not for a function, but for mechanical means to bring into working relation the folding plate and the cylinder. This relation is the very essence of the invention, and marks the advance upon the pri- or art. It is the thing that never had been done before, and both the lower courts found that the machines of the Continental Company were infringements of it.” The above language covers the situation in the ease at bar, in that the mechanical means defined by Gubelmann’s claims are the very essence of the Gubelmann invention, and defendant’s machines incorporate these mechanical means, or their equivalents, in their constructions. In the Paper Bag Case, Mr. Justice McKenna, on, page 418 (28 S. Ct. 751), further stated: “We think it is clear that the court considered that Liddell sought to comply with section 4888 of the Revised Statutes [U. S. Comp. St. 1901, p. 3383], In other words, he filed a description of his invention, explained its principle and the best mode in which he ‘contemplated applying that principle,’ and did not intend to give up all other modes of application. An inventor must describe what he conceives to be the best mode, but he is not confined to that. If this were not so, most patents would be of little worth. ‘The principle of the invention is a unit, and invariably the modes of its embodiment in a concrete invention may be numerous and in appearance very different from each other.’ Robinson on Patents, § 485.” In Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U. S. 45, at page 63, 43 S. Ct. 322, 328 (67 L. Ed. 523), Mr. Chief Justice Taft said: “In administering the patent law the court first looks into the art, to find what the real merit of the alleged discovery or invention is, and whether it has advanced the art substantially. If it has done so, then the court is liberal in its construction of the patent, to secure to the inventor the reward he deserves.” The Gubelmann patent, disclosing, as defendant’s expert admits, broadly new inventions in the art, is entitled to a broad range of mechanical equivalents, as was held in the recent case of Hildreth v. Mastoras, 257 U. S. 27, on page 36, 42 S. Ct. 20, 24 (66 L. Ed. 112), where Mr. Chief Justice Taft, said that, “as. the Dickinson patent is a generic patent, the doctrine of broad equivalents properly applies here.” This follows the well-established «rule pronounced by Mr. Justice McKenna in the Paper Bag Co. Case, supra, at page 414 (28 S. Ct. 749), which was stated in. the following language: “The right view is expressed in Miller v. Eagle Manufacturing Company, 151 U. S. 186, 207 [14 S. Ct. 310, 318 (38 L. Ed. 121) ], as follows: ‘The range of equivalents depends upon the extent and nature of 'the invention. If the invention is broad and primary in its character, the range of equivalents will be correspondingly broad, under the liberal construction which the courts give to such inventions.’ ” The doctrine of equivalents is well stated by Judge Colt in Edison Electric Light Co. v. Boston Incandescent Lamp Co. (C. C.) 62 F. 397, at page 399: “The doctrine of equivalents, as applied to primary inventions, rests upon a more satisfactory basis by the elimination of the qualification of age or time, and by holding those things to be equivalents which perform the same function in substantially the same way. The fundamental question is whether the alleged infringer makes use of the essence of the patented invention; not whether he has adopted a known equivalent, or made a patentable improvement on the invention.” The above decision was cited with approval by Judge Hough in Treibacher v. Roessler (D. C.) 214 F. 410, at 413; affirmed 219 F. 210, 135 C. C. A. 108. See, also, General Electric Co. v. Alexander (C. C. A. 2d) 280 F. 852; Wagner Typewriter Co. v. Wyckoff, Seamans & Benedict, 151 F. 585, 81 C. C. A. 129; Manton-Gaulin Mfg. Co. v. Dairy Machinery & Construction Co. (D. C.) 238 F. 210, affirmed 247 F. 317,159 C. C. A. 411. As against the defendant’s class 1700 machine, the plaintiffs charge infringement of claims 58, 62, 213, 214, 289, 290, 292, 294, 296, and 298 of the Gubelmann parent. These claims define inventions both broadly and specifically, which may be embodied in mechanisms comprising a subtotalizer, a grand totalizer, co-operating printing mechanism, and devices co-operating therewith to accumulate items on a subtotalizer, to list these items, to print a subtotal of the items listed, and to clear the subtotalizer while accumulating totals on the grand totalizer, so that the grand totalizer registers the grand total of the groups of items which have been accumulated on the subtotalizer. Claim 290, which is one of the more specific or narrow claims relied upon by the plaintiff, is typieal of the group, and calls for: “In a registering machine, (1) a set of subtotalizer elements; (2) a set of grand totalizer elements; (3) means for simultaneously entering items on each of said sets;. (4) graduated elements movable under the control of said subtotalizer elements; (5) pivoted feeler fingers movable into engagement with said graduated elements; (6) type means adjustable under control of said feeler fingers and said graduated elements to positions corresponding to the amount standing on, the subtotalizer elements; (7) means for taking an impression from said type means; (8) means for restoring said subtotalizer elements to zero position; and (9) a common operating mechanism, adapted at a single operation to impel said feeler fingers against said graduated elements, adjust said type means, take a total impression from said type means, and restore said subtotalizer elements to zero, without restoring to zero said grand total elements.” The elements of Gubelmann’s claim 290 are all present in defendant’s class 1700 ma-' chine, in that its construction comprises (1) a subtotalizer; (2) a grand totalizer; (3) segmental racks driven by the differential mechanism to simultaneously introduce amounts into the subtotalizer and the grand totalizer; (4) graduated snail cams forming a part of the sub totalizer mechanism and moving under control of this mechanism, so that the positions of the snail, cams correspond to subtotal amounts introduced into the machine;, (5) pivoted feeler fingers constructed to be yieldably brought into engagement with the snail cams when a subtotal is to b'e printed; (6) subtotal printing type controlled through gearing by the contact of the feeler fingers with the snail cams, so that numeral type is set up at the printing point to correspond to the amount standing on the sub totalizer; (7) a printing platen constructed to drive the paper against the subtotal numeral type, to make an impression of the subtotal standing on this type; (8) gear mechanism rendered operative during a subtotal taking operation, so that the subtotal denominational members are restored to zero after the subtotal has been printed; (9) and the machine is provided with an operating crank handle, which is a common operating mechanism that renders effective, in a single cycle of operations, the impelling of the feelen fingers against the snail cams, the adjusting of the numeral type to set up the proper amount at the printing point, the operating of the platen to cause the printing of the total, and the restoration of the subtotal denominational members to zero, all of which takes place without disturbing the amount standing on the grand totalizer. Claim 290 is one of the claims presented in the latter part of the prosecution of the Gubelmann application, but claims to this same general subjeet-matter, which claims are broader in scope than claim 290, were present in the application as originally filed, and were continued in the file during the entire proceedings in the prosecution of the application; in other words, claim 290 and claims of this character ax-e drawn to subjeet-matter to which Gubelmann has always asserted inventorship. Since all of the elements of this specific claim 290 are clearly present in defendant’s class 1700 machine, it is unnecessary to point out the presence of mechanism in the other nine claims which are more broadly directed to similar subjeet-matter which is present in defendant’s class 1700 machine. See below for other nine claims. Defendant urge's, as a distinction befcween class 1700 machine and the Gubelmann patent, that the class 1700 machine is of the “key-operated” type, while the Gubelmann machine is of the “key-set, power-operated” type. A “key-operated” machine is one in which certain of its operations are brought about by application of power through a key lever, such as a numeral key or the like, whereas, a “key-set, power-operated” machine is one in which the operation of the key predetermines the functioning of the machine when power is applied through the operating lever, or crank, or other power-applying means; in other words, the two machines distinguish merely the manner of the application of power. In the instant case this is not material, sinee the matter in issue relates to combinations of mechanisms, and not to the specific manner in which power is applied to cause these mechanisms to funetion. Therefore, so far as the class 1700 ma-chine is concerned, the type of the machine is a distinction without a difference, Defendant attempts to avoid the charge of infringement, and to justify constructions of style 1700 machine, by pointing to several prior art patents whose constructions it claims to have followed in producing the 1700 machine, and directs attention to the following patents and machines; Carney, 497,860, issued May 23, 1893; Carney, 497,861, issued May 23, 1893; Carney, 748,259, issued December 29, 1903; Cleal, 718,565, issued January 13, 1903; Hiett, 580,863, issued April 20, 1897; Blessing, 602,026, issued April 5, 1898; Carney machine, Defendant’s Exhibit T; and an illustrative exhibit comprising a secret total machine, Defendant’s Exhibit W. The Carney patents and the Carney machine, Exhibit T, all lack any printing mechanism for printing totals, and, furthermore, these patents, and this machine, do not have a subtotalizer and a grand totalizer. The Cleal patent, 718,565, is also entirely lacking in any mechanism for printing either subtotals or grand totals. The secret total machine, Defendant’s Exhibit W, was proven only as of the date of late in 1922, but testimony was offered to the effect that machines of a similar character had been sold at earlier dates. However, defendant produced no records which satisfactorily established these earlier sales, and therefore the sales of this type of machine are not proven as of a sufficiently early date to be effective here. Line Material Co. v. Brady Electric & Manufacturing Co. (D. C.) 299 F. 822. The well-settled rule, as stated by Judge Learned Hand in Kalamazoo Loose Leaf Binder Co. v. Wilson Jones L. L. Co. (D. C.) 286 F. 715, at page 717, is quite pertinent here: “There is no documentary corroboration of it, and the testimony of the witnesses, though unimpeached, is not supported by any circumstances which put it beyond the inevitable, infirmities of their recollection. The most recent declaration of the Supreme Court, in Symington v. Nat. Castings Co., 250 U. S. 383, 39 S. Ct. 542, 63 L. Ed. 1045, shows no disposition to relax the well-established canon, and I decline to consider the use as proved.” However, even if the dates of manufacture, sale, or use had been established as to this' secret totalizer machine, the machine simply discloses two totalizers, one of which is open and the other of which is secret, and covered up in a locked box. These totalizers are intended to run concurrently, but, even if they should be considered as a subtotalizer and a grand totalizer, the machine lacks the very important element of printing mechanism with which to print totals. The Hiett patent, No. 550,863, discloses stepped cams which are effective to control total printing. This patent is for an adding machine having but a single totalizer, so that it lacks the element of a grand totalizer and a subtotalizer, and, furthermore, upon cross-examination, defendant’s expert, Mr. Browne, admitted that the machine disclosed in the Hiett patent is so designed that the adding wheels are not returned to zero during a total printing operation. The Blessing patent, No. 602,026, relates to a time stamp in which there are no totalizers whatever, and the most that can be said about this patent is that it discloses merely the use of a snail cam to position a printing type. This broad concept is not claimed by the plaintiffs’ patent, but the claims in suit are to combinations in an adding machine, which are not to be found in this Blessing time stamp patent. And, finally, the defendant refers to Burroughs patent, No. 388,116, granted August 21,1888, as having been followed in the class 1700 machine. Mr. Browne, defendant’s expert, did not dwell long on this Burroughs patent. On cross-examination he admitted that the construction disclosed in this patent' is not capable of printing a list of items and then printing a total of the items listed; nor is it capable of printing items and entering them on two totalizers simultaneously. Furthermore, he admitted that the printing mechanism of this Burroughs patent is not under control of either of the registers A or A7, as shown and marked on the drawings of the patent. None of these foregoing prior art machines or patents are set up as anticipations, and there is no disclosure therein which prints items, prints a subtotal of these items, and clears a sub totalizer during a subtotal printing cycle, as do both the defendant’s class 1700 machine and the Gubelmann machine. While both Gubelmann and the defendant were entitled to, and did, draw upon the mechanical arts and the prior adding machine art for old well-known mechanical elements, an analysis of the art referred to by the defendant as being that which it followed in constructing the 1700 machine shows that the very features in the class 1700 machine here complained of did not come from this old prior art, but that these features were new in the art with Gubelmann. As was admitted by the defendant’s expert, defendant has not pointed to any patent, prior to the year 1900, which discloses a totalizer, a subtotalizer, mechanism to accumulate items on the totalizers, and mechanism to print said items and to print subtotals, to clear the subtotalizer, and retain a plurality of such subtotals on the grand totalizer. This is the law not only of the Gubelmann machine, but also the law of defendant’s class 1700 machine. In Sessions v. Romadka, 145 U. S. 29, at page 44, 12 S. Ct. 799, 803 (36 L. Ed. 609), Mr. Justice Brown, speaking for the Supreme Court in the matter of infringement of a trunk fastener patent, said: “Both are identical in principle, operation, and design, though the trunk fasteners now in ordinary use resemble the Taylor more than the Romadka patent. In view of the fact that Taylor was a pioneer in the art of making a practical metallic trunk fastener, and invented a principle which has gone into almost universal use in this country, we think he is entitled to a liberal construction of his claim, and that the Romadka device, containing as it does all the elements of his combination, should be held an infringement, though there are superficial dissimilarities in their construction.” So here, inasmuch as the defendant’s class 1700 machine embodies in its construction the patented inventions of Gubelmann, I conclude that it should be held to infringe. Defendant’s Class 2000 Machine. Coming now to defendant’s style 2000 machine, we find that the mechanical organizations to be considered are extremely intricate, and present a jungle of mechanism through which it is difficult and laborous to trace an ordered path. The work of the court, however, is reduced somewhat by the testimony of very competent experts and the assistance rendered by very able counsel, as well as by the fact that, while this machine in its entirety is complicated, it is only necessary to consider such parts of it as are in issue, and the intricacies of these mechanisms is largely due to multiplication of individual groups of devices. In each denominational order in this machine there are substantially identical groups of mechanism, and throughout the organization individual groups of totalizers, carrying devices, etc., are multiplied by the denominational capacity of the machine. •The- defendant’s style 2000 machine is characterized by a plurality of totalizers cooperative with a single printing mechanism which may be selectively brought into cooperation with a predetermined totalizer, so that totals may .be printed as desired from any one of the many totalizers. in this machine. It is further characterized by the construction in which a plurality of sets of totalizer wheels are interspersed in such manner that the denominational orders of the register wheels of one set are interspersed with the register wheels of the totalizer of another set, so that register wheels of like denominational orders are grouped together. The machine is also adapted to print items introduced into the machine, to accumulate these items on both a subtotalizer and a grand totalizer, and to print subtotals and clear the subtotalizer in the. same operation, while retaining a plurality of subtotals on a grand totalizer. The defendant’s class-2000 machine comprises a control handle and a plurality of subtotalizers and grand totalizers mounted in rows. Each time an amount is added inte a subtotalizer, the same amount goes into a grand totalizer. Since a plurality of groups of totalizers are -used in this machine, it is equipped with a group of keys comprising “departmental keys,” which predeterminé the particular • totalizers into which amounts are to be entered. This is a feature of the 2000 machine which is not in issue, and a detailed description will therefore be unnecessary. After a departmental subtotalizer and its corresponding grand totalizers have been selected by depression of the' departinental key, the amount to be entered into the 2000 machine is set up on the amount keyboard by depressing the proper numeral keys, which are arranged in denominational rows like the numeral keys in the keyboard of the Gubelmann machine. This class 2000 machine is a “key-set, power-operated” type of machine, the same as the Gubelmann machine, and, after the keys have been set, the crank handle is operated to provide power. for causing the parts to function. The depression of an amount key" releases the zero stop in the denominational row of the key operated to release its corresponding gear segment, but the zero stops in the denominational orders where no key is depressed remain effective to prevent movement of these gear segments, again just as in the Gubelmann machine. If the crank handle is now operated, it rotates á power- shaft which' causes a drive mechanism to swing the released gear segment in a counterclockwise direction until a locking member strikes the end of the numeral key which is set to stop the movement of the gear segment differentially according to the value of the amount key depressed and lock the gear segment in this position. A beam member is pivoted at one end to the gear segment wheel, and is provided at the other' end with a slot which embraces a pin on an actuating link. The continued operation of the machine brings a contact member against this beam to swing the beam to its limit position. This operation causes the final position assumed by the-slotted end of the beam to be dependent on the position where its corresponding gear segment is locked by the differential stop devices. The actuating link, carrying the pin which operates in the slot of the beam, is connected through suitable gearing with numeral type. The operation of the beam, the link, and gearing connections position numeral type at the printing point which correspond to the value of movement of the gear segment, and consequently represent the value of the key that has been depressed, just as the numeral type of Gubelmann’s machine brought to the printing point are the same as the numeral key operated. A printing hammer platen now brings the paper into contact with the numeral type and the item introduced into the machine is printed. After printing occurs, a grand totalizer and a subtotalizer, both determined by the departmental key which was originally selected, are brought into mesh with the gear segments, and the further continued operation of the power shaft returns the gear segments to normal position, at which time the proper denominational order wheels in the grand totalizer and in the subtotalizer .are actuated by the active gear segment, thus registering the number introduced into the machine. At the end of the adding operation the grand totalizer and the subtotalizer gears are withdrawn from the gear segments, thus completing an adding operation during which the item added has been printed. When a number of items have been introduced into the grand totalizer and subtotalizer, and each item introduced is printed, the total of these items is accumulated on both the grand totalizer and the subtotalizer. If it is desirable to print a subtotal, and clear the subtotalizer without disturbing the grand total, the control handle is moved to the proper position to select the row of the desired subtotalizer, and then the proper departmental key is depressed to select the proper subtotalizer in the row. The dñvé' mechanism of the machine is now actuated, and the control mechanisms function to change the sequence of operations. The zero stops for all of the denominational orders are now withdrawn, and the selected subtotalizer is now thrown into mesh with the gear segments, and the actuation of these gears in a counterclockwise direction by the driving connections tends to turn the subtotalizer denominational wheels in a nonadditive direction. The zero tooth on each denominational order totalizer wheel is a long tooth, and when this tooth approaches zero, during a total-taking operation, it encounters the end of a lever which the control handle, when set for total taking, has caused to be positioned in the path of this long tooth. There is one such lever for each denominational order. This lever operates a differential stop member adapted to engage a shouldered rack associated with a corresponding gear segment wheel, and when this occurs the segmental wheel is released from its driving connection and locked in the released position. The long teeth of the subtotalizer wheels, which stand at zero, will cause these levers to lock these gear segments in zero position, whereas the subtotalizer wheels which contain amounts will permit a backward rotation on the corresponding gear segments until this rotation equals the amount which was standing on the correlated subtotalizer wheels before the total-taking operation began. When this amount has been completely subtracted by backward rotation of a subtotalizer wheel, the movement of the gear segment engaged therewith is differentially stopped by the zero tooth on the totalizer wheel striking the lever, thereby setting the differential stopping mechanism. The gear segments are now differentially stopped in such position as to exactly correspond to amounts which had been standing on the subtotalizer. The numeral type-selecting mechanism now comes into operation, and the slotted beams carried by the gear segment wheels are operated exactly as in item printing to position numeral type at the printing point according to the position of the gear segments, or, in other words, to set up type which correspond to the amount that had been accumulated on the subtotalizer. The printing hammer platen now operates and the subtotal is printed. The further operation of the machine 'withdraws the subtotalizer wheels from engagement with the gear segments, and the gear segments and actuating elements are returned to normal position. It will be observed that a subtotal has been printed and the subtotalizer wheels brought to and left standing at zero, or, in other words, the subtotalizer has been cleared in the same operation that printed the subtotal; and, since the subtotalizer only was operated, this operation was performed without in any way disturbing the amount standing on the corresponding grand totalizer. In defendant’s class 2000 machine the adding gear segments are arranged around the periphery of wheels, with each wheel carrying three of these gear segments. The totalizer shafts are mounted around these wheels at 120 degrees apart, and are-constructed to move toward and from the gear segment wheels, to throw the totalizers into and out of engagement with the gear segments. There are nine subtotalizers and one grand totalizer carried on each totalizer shaft, making 30 totalizers in all in this machine; that is, 27 subtotalizers (or departmental totalizers, as they may be called), and 3 grand totalizers. The totalizers on each shaft are interspersed one with another in such manner that the corresponding denominational order wheels of all the totalizers on a shaft are grouped together. When a departmental •key is depressed and the crank handle is turned, it causes a shifting movement between the totalizers and the gear segments. This movement controls both printing and adding, and associates the selected totalizer with the printing mechanism in such manner as to permit a total or subtotal, as the ease may be, to be printed from any one of a plurality of totalizers. Each totalizer is provided with an overflow wheel, which receives carries that are one denominational order higher than the capacity of the key-' board of the machine. These overflow wheels are actuated by gear segments exactly like those which are controlled by the keys, as in the Gubelmann machine. In view of the fact, in class 2000 machine, that a subtotalizer is effective each time a grand totalizer is adding, these overflow actuators are capable of and do co-operate with a plurality of sets of totalizers during adding operations. Furthermore, when a subtotal is printed and the machine cleared, these overflow actuators, or gear segments, zeroize or clear the overflow wheels exactly the same as similar gear segments zeroize or clear the key-eon-trolled subtotalizer wheels.o Like the Gubelmann machine, the clearing of the totalizers of defendant’s class 2000 machine is optional with the operator, in that totals may be printed without clearing the totalizers as is desired. The enlarged capacity of defendant’s class 2000 machine necessarily renders the machine more complex in its organization than the machine of the Gubelmann patent. However, even in its complex form, the inventions covered by the Gubelmann claims are present, and the complexity does not relieve the class 2000 machine from being an infringement. In Machine Co. v. Murphy, 97 U. S. 120, 24 L. Ed. 935, Mr. Justice Clifford, speaking for the Supreme Court, at page 125, gave utterance to the rule which is applicable here: “Except where form is of the essence of the invention, it has but little weight in the decision of such an issue, the correct rule being that, in determining the question of infringement, the court or jury, as the case may be, are not to judge about similarities or differences by the names of things, but are to look at the machines or their several devices or elements in the light of what they do, or what office or function they perform, and how they perform it, and to find that one thing is substantially the same as another, if it performs substantially the same function in substantially the same way to obtain the same result, always bearing in mind that devices in a patented machine are different in the sense of the patent law when they perform different functions or in-a different way, or produce a substantially different result.” In speaking of the eónsideration to be given a primary invention, Mr. Justice Blatchford, in Morley Machine Co. v. Lancaster, 129 U. S. 263, on page 273, 9 S. Ct. 299, 302 (32 L. Ed. 715), said: “Where an invention is one of a primary character, and the mechanical functions performed by the machine are, as a whole, entirely new, all subsequent machines which employ substantially the same means to accomplish the same result are infringements, although the subsequent machine may contain improvements in the separate mechanisms which go to make up the machine.” The mere difference in appearance be-' tween defendant’s 2000 machine and the machine disclosed in the Gubelmann patent is no criterion as to the question of infringement, and therefore the court looks beyond the mere visual differences or similarities. Judge Coxe, speaking for the Circuit Court of Appeals, Second Circuit, in Hillard v. Fisher Book Typewriter Co. et al., 159 F. 439, at page 442, 86 C. C. A. 469, 472, observed : “To a layman the defendants’ apparatus seems very different from that employed by the patentee, but to a mechanic -frho looks to results rather than appearances, it probably appears quite similar. * * * In the recent ease of Wagner Co. v. Wyckoff, Seamans & Benedict, 151 F. 585, 592, 81 C. C. A. 129, we had occasion to examine a somewhat similar situation, where the parts of the infringing device had been so skillfully manipulated and transposed that it required the most careful analysis to discover, what we held to be the fact, that it contained every element of the patented structure and accomplished the same result.” Judge Sanborn, speaking for the Circuit Court of Appeals, Eighth. Circuit, in Brammer v. Schroeder, 106 F. 918, on page 920, 46 C. C. A. 41, 43, held that: “The general rule of the patent law is that one who invents and secures a patent for a machine or combination which first performs a useful function -is thereby protected against all machines and combinations which perform -the same function by equivalent mechanical devices; but one who merely makes and secures a patent for a slight improvement on an old device or combination, which performs the same function before as after the improvement, is protected against those only who use the very device or improvement he describes and claims, or mere colorable evasions of it.” And in Lourie Implement Co. v. Lenhart et al., 130 F. 122, at page 129, 64 C. C. A. 456, 463, Judge Sanborn said: “One may not escape infringement by adding to or subtracting from a patented device, by changing its form, or by making it more or less efficient, while he retains its principle and mode of operation, and attains its result by the use of the same or of equivalent mechanical means.” The rules above stated are quite pertinent and forceful in their application to the principles of the 2000 machine. The Gubelmann claims in suit as to defendant’s 2000 machine may conveniently be divided into seven groups, and a claim from eaeh group selected a,s a typical claim. The first group of Gubelmann claims comprises the single claim 127, which calls for: In a calculating machine, the combination of (1) a plurality of sets of accumulators; (2) means for accumulating items thereon; (3) printing devices; (4) and mechanism cooperative with said printing devices for automatically effecting printing at the will of the operator of a total from either of said sets of accumulators wider control of said set of accumulators and independently of another of said sets of accumulators. The constructions called for by Gubelmann claim 127 are present in defendant’s class 2000 machine in the following combined mechanisms: (1) Any two or more of the totalizers; (2) keys of the keyboard and driving connections irnder control of the keys which introduce numbers into the totalizers; (3) printing devices for printing amounts entered into the machine, and also totals; (4) mechanism whereby totals are. automatically printed at the will of the operator, the printing being under control of any selected one of the totalizers, which mechanism is operative to print such total without disturbing the totals standing on any other totalizer. The second group of Gubelmann claims relates to subtotalizers and grand totalizers, and comprises claims 10, 25, 28, 50, 52, 54, 60, 61, 227, 233, 249, 250, and 287. Claim 233 is typical of this group and calls for: In a calculating machine, the combination of (1) a subtotal set of accumulators; (2) of a grand total set of accumulators; (3) and printing devices including type carriers common to said two sets of accumulators for printing the total from either set as desired. For remaining 12 claims in this group see below. The .mechanism called for by Gubelmann claim 233, was admitted by Mr. Browne, defendant’s expert, to be novel with Gubelmann, and is a broad characterization of the essence of defendant’s 2000 machine. This mechanism is to be found therein as follows: (1) One of the subtotalizer mechanisms; (2) one of the grand totalizer mechanisms adapted for co-operation with the subtotalizer specified; (3) the numeral printing type and the printing platen, which comprise type carriers common to either the subtotalize¡r or the grand totalizer to print a total from either of these totalizers at the will of the operator. Tbe third group of Gubelmann claims, which relate to clearing the totalizers, comprises claims 123, 223, 224, 282, 283, and 285, from which claim 283 is selected as being typical. It calls for: In a machine of the class described: (1) A plurality of accounting devices; (2) means for accumulating amounts thereon; (3) a printing mechanism; and (4) means for automatically clearing said accounting devices and for transferring their indications to said printing mechanism. For remaining five claims in this group see below. The mechanism in. defendant’s class 2000 machine, which responds to Gnbelmann claim 283, is as follows: (1) A plurality of totalizers ; (2) the amount key control mechanism for accumulating amounts on the plurality of totalizers; (3) the printing mechanism, which prints both items and totals at the will of the operator; (4) the mechanism rendered operative by the control handle to cause a totalizer to .control the printing mechanism, to transfer the amount standing thereon to the numeral type whereby this amount is printed, and which also causes the gear segments to turn the wheels of this totalizer back to zero, so that the totalizer is cleared automatically during the total printing operation. The fourth group of Gubelmann claims, comprising mechanisms present in defendant’s class 2000 machine, are claims 146, 147, 160, 247, 251, 252, 253, 254, and 257, and relate more particularly to the interspersing of one totalizer with another, whereby totalizer wheels of successive denominational orders are interspersed with the totalizer wheels of another set. Claim 253 is typical of this group and calls for: In a machine of the class described, the combination of (1) a plurality of sets of accumulators of successive denominational order, arranged so that the accumulators of one set are interspersed with the accumulators of another of said sets; (2) a printing mechanism provided with elements corresponding to the denominational orders of accumulators; and (3) means for controlling the printing elements by the accumulators of any set. For remaining eight claims of this group see below. The mechanism in defendant’s class 2000 machine, defined by claim 253, is as follows: (1) The plurality of sets of totalizers on each totalizer shaft with -the successive denominational orders of one totalizer interspersed with those of the other totalizer in such manner that the totalizer wheels of like denominational orders are grouped together; (2) there are nine denominational orders in each totalizer, and there are also nine numeral type wheels of corresponding denominational value; (3) and the mechanism under control of the operator whereby these printing wheels may be brought into éo-operation with any totalizer, so. that the totalizer, through suitable connecting mechanism, controls the printing elements. The fifth group of claims, comprising claims 200 and 245, relate to the overflow wheel gear segments. Claim 245 is typical of this group and calls for: In a calculating machine, the combination of (1) a plurality of sets of number keys; (2) a plurality of sets of accumulators, each set consisting of a plurality of accumulators of like denomination, there being a greater number of sets of accumulators than there are sets of keys; (3) a plurality of actuators, one for each set of accumulators, each said set of keys being correlated with for controlling a respective one of said actuators and thereby controlling one of said sets of accumulators; and (4) means for clearing any of the sets of accumulators by an operation of the machine. For the other claim in this group see below. The mechanism in defendant’s class 2000 machine, which is defined by Gubelmann claim 245, comprises (1) a plurality of sets of denominational rows of number keys; (2) the plurality of totalizers, each of which comprises a plurality of totalizer wheels, wherein'each totalizer has wheels of denominational orders like those in other totalizers, and wherein each totalizer comprises nine denominational order wheels, while the keyboard contains but eight denominational sets of keys, the ninth totalizer wheel being an “overflow” wheel; (3) the nine gear segments, eight of which are correlated with the eight denominational rows of keys to permit these keys to control eight of the gear segments, the highest gear segment not being key-controlled, but co-operates with the “overflow” wheels; (4) the mechanism rendered operative by the control handle whereby, during a total taking operation, all nine gear segments are rendered effective to restore all nine totalizer wheels of a totalizer to zero during a total taking operation as to that totalizer. The sixth group of Gubelmann claims, defining mechanism to be found in defendant’s class 2000 machine, comprises claims 58, 62, 213, and 214. This group relates to mechanisms for listing items, accumulating a subtotal, printing a subtotal, and clearing a subtotalizer while retaining a plurality of subtotals -on the grand totalizer. "Claim 58 is typical of this group and call's for: In a calculating machine, the combination with (1) a subtotal set of registers, (2) a grand total set of registers, and (3) co-operating printing mechanism, (4) of means co-operating therewith, whereby a total of items may be accumulated on said subtotal registers, listed, its total printed, and said subtotal registers cleared at the will of the operator, and whereby a plurality of such totals may be accumulated and preserved on said grand total registers for producing a grand total of groups of items which have been accumulated on said subtotal registers. For remaining three claims of this group see below. The mechanism of defendant's class 2000 machine which comprises the combination of this Gubelmann claim 58 is (1) the subtotalizer, comprising a set of register wheels; (2) the grand totalizer, comprising a set of register wheels; (3) the printing mechanism which co-operates with either the grand totalizer or the subtotalizer; (4) the operating mechanism comprising the finger keys, driving mechanism, differential devices, etc., whereby items are accumulated on the subtotalizer, mechanism for operating the printer to list these items, mechanism rendered operative by the control handle to print a total from the subtotalizer, and mechanism also rendered operative by the control handle to restore the wheels of the subtotal