Buss v. MERRILL. 41
picion of this character. The date of the invention must be fixed as
stated by the complainants. The witness who testified to sales of the
"Reynolds Log” in July, 1875, omitted to give a description of the logs
so sold. The court can hardly assume, in the absence of all proof, that
the "Reynolds Log" was the one described in the Reynolds patent, and,
besides, the complainants’ invention antedates these sales also.
There can be no doubt as to the infringement of the second claim.
The defendants’ apparatus contains all the elements of that claim. It
has an elongated cylindrical case containing the registering mechanism,
a shaft introduced axillary at one end, the anti-friction rollers, and the
eye adapted to receive the propeller cord, all substantially inthe same P
combination as in the patent. V . - .
Regarding _the third claim there arises a serious doubt whether, in view
of the state of the art, thercwvas any invention in providing the elongated
, case with an attaching yoke; but it is not necessary to decidezthe ques-
·tion,for itis entirely clear that the defendants do not infringe this claim.
They have no yoke at all, but simply eyes to whicha rope may be at-
tached. It is urged by the complainants that when used to form a sus-
pending bail the rope would be the equivalent for the rigid metallic yoke
of the patent. This is perhaps true, but it is insufficient to establish in-
fringement. The mere fact that a person sells an article to whichlaypat-
dented device may be attached, does not make him an infringer, provided
the article is not so constructed that the patented device and no other can
be used with it. ` In the present case, the registering mechanism of the .
defendants may be used without infringing. the third claim. For in-
stance, if a rope were run through the eyes at right angles to the axis of
the case, the ends attached to stanchions some feet apart, and the rope
twisted so that it performs the functions of a torsional spring; or if
through the eyes were slipped two upright parallel rods, fitted to receive
them in such manner that the spindle end projects over the taifrail; or if
the case were suspended from the side of the vessel by a rope attached
to one eye alone,-—there would be no- infringement. In none of these
instances would there be a "horizontal attaching yoke," or an equivalent
therefor. See cases cited in Snyder v. Bu/rmell, 29 Fed. Rep. _47. If
the defendants had sold al case without any apparatus for attaching it to
the vessel, it would be but a step further in the argument to assert, that
because the case must be supported in some manner, and as the trun-
nions and yoke of the complai-nants’ device constitute a convenient mode
of fastening, and might be selected, therefore contributory infringement
had been established. ’ _
The complainants are entitled to a decree upon the second claim, for
an injunction and an accounting. V