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useful result, and the only result hinted at is the effecting of a backward movement of the cover before it is locked in place. The applicant accepted the awkwardly drawn claim which the examiner offered him, and from the other two claims, which at the end he had pending, eliminated the words “to effect a backward movement of the cover,” which the examiner had criticised as “attempting to claim the apparatus, by referring to its capabilities, instead of its construction,” and the three claims issued as set forth supra. But in view of the specifications, which remained unchanged from first to last, we cannot hold that the action of the Patent Office so broadens these claims as to warrant a construction that would cover a type of operating handle which merely holds the cover in place, without first shifting it so as to allow the escape of water and steam. The order is reversed, with costs, but without prejudice to a renewed application for injunction, should complainant be able hereafter to show the manufacture or sale by defendant of kettles similar to those manufactured before the agreement of April 30, 1906.
FOREST CITY FOUNDRY & MFG. CO. v. BARNARD.
1. PATENTs ($ 66°)—ANTICIPATION.—UNCLAIMED FEATURE of PATENTED DEv1CE. A patentee is entitled to a beneficial use of a feature of his device if it actually exists, although he did not specifically claim it, and it may constitute an anticipation of a later patent. [Ed. Note.—For other cases, see Patents, Cent Dig. §§ 79–81; Dec. Dig $ 66."] 2. PATENTs ($ 328*)—ANTICIPATIoN—FLUID DISTRIBUTor. The Barnard patent, No. 580,151, for a fluid distributor, held not anticipated, and valid.
Appeal from the Circuit Court of the United States for the Northern District of Ohio.
In Equity. Suit by William N. Barnard against the Forest City Foundry & Manufacturing Company. Decree for complainant, and defendant appeals. Affirmed.
W. T. Arnos, for appellant.
Before SEVERENS and WARRINGTON, Circuit Judges, and SANFORD, District Judge.
SEVERENS, Circuit Judge. The complaint made by the bill in this case is of the infringement of letters patent No. 580,151, granted to W. S. Barnard as assignor to William Nichols, April 6, 1897, for improvements in fluid distributors. The defense is that the patent is invalid because of anticipation by earlier patents; and by two, especially, one of which is a patent to Rhodes, No. 185,965, granted
January 2, 1877, and the other a patent to Forster, No. 220,277,
with a tangential inlet-port, and at its center with an outlet-port, the axis of which is transverse to that of the inlet-port. “(4) A spraying-nozzle comprising a chamber having two approximately circular side walls, and an approximately circular peripheral connecting portion, said chamber provided with an inlet-port adapted to deliver the incoming fluid against the connecting portion, and one of the said side walls being provided with an opening for the discharge of the fluid.”
No question is made of the efficiency and utility of this device; and it seems to us, in view of the object sought to be attained, to exhibit a good deal of ingenuity in contriving the means for the method. But it is contended by the defendant, the appellant here, that similar devices to accomplish the same purposes had been invented and patented by Rhodes in 1877 and Forster in 1879. Of these, the Forster patent is the one most worthy of consideration as an anticipation, and we shall therefore dismiss the other remarking only that we find nothing in it which contains a suggestion of Barnard's invention.
Forster's was a device for a lawn sprinkler. Fig. 2 of the drawings with a brief explanation will suf- 222 & fice for an understanding of it. 37 & .
A is an up-standing water pipe, e is a plug having several spiral grooves, f, in its periphery, C is the sprinkler-nozzle composed of a tubular body, c, and a flaring mouthpiece, d. The plug, e, is driven tight into the lower end of the tubular body, c, and the function of the spiral grooves upon its edge is to provide water passages which impart a spiral movement to the water as it passes through the nozzle, and, in connection with the flaring open mouthpiece, break up the stream of water into a fine spray. We have followed the inventor's language closely. The points of resemblance to Barnard's device are very scanty. Counsel for the appellant claim that the spiral grooves perform the same function as the inside of the circular sides of § Barnard's chamber does. It is possible that in Forster's device the water, to some extent, impinges upon the inside of the “tubular body” though he does not suggest it. But he would be entitled to the benefit of that feature, if in fact it existed. Goshen Sweeper Co. v. Bissell Carpet Sweeper Co., 72 Fed. 67, 19 C. C. A. 13; Goodyear Rubber Tire Co. v. Rubber Tire Wheel Co., 116 Fed. 363, 53 C. C. A. 583; Stilwell-Bierce, etc., Co. v. Eufaula Cotton Oil Co., 117 Fed. 410, 415, 54 C. C. A. 584; Eames v. Worcester Polytechnic Institute, 123 Fed. 67, 71, 60 C. C. A. 37. But he seems to construct his device in such form that the spiral streams of water shall converge at the nozzle and be there broken into spray. Assuming that some slight disintegration is effected by directing the water upon the sides of the tubular body, this would be only one of the several united means of effecting the desired object employed by Barnard; and taken as a whole his method is a very different way of breaking up the water from that of driving it through the reverberatory chamber of Barnard's patent. There is not in Forster's invention the provision of means at all adapted to effect such a violent tumult of the fluid as
is created by the means contrived by Barnard. Again in the Barnard patent there is no nozzle which co-operates with antecedent means in reducing the water to spray. That has been done in the chamber, and the orifice is a mere exit for the spray. We think there is no fair ground for regarding any previous invention to which our attention has been called as an anticipation of the patent in suit. This result accords with that of the Circuit Court, and its decree should be affirmed, with costs.
LURTON, Circuit Judge, participated in the hearing and decision of this case, but is no longer a member of this court.
AMERICAN STEEL & WIRE CO. OF NEW JERSEY v. DENNING WIRE & FENCE CO.
(Circuit Court, N. D. Iowa, Cedar Rapids Division. January 11, 1910.) No. 46.
1. PATENTs (§ 234*)—INFRINGEMENT—MACHINE PATENT. To constitute infringement of a patent for a machine the infringing machine must be substantially identical with that of the patent in the result attained, the means of obtaining that result, and the manner in No. its different mechanisms operate and co-operate to produce that TeSult. 2: Note.—For other cases, see Patents, Cent. Dig. § 370; Dec. Dig. § 4.*] 2. PATENTS (§ 235*)—INFRINGEMENTs—MACHINEs—INTERMITTENT AND CoNTINUous OPERATION. Machines or devices in which the different parts are arranged and constructed to operate continuously are different in principle from those in which the parts are arranged to operate intermittently and alternately with each other, and one is not an infringement of the other. [Ed. Note.—For other cases, see Patents, Cent. Dig. § 371; Dec. Dig. § 235."] 3. PATENTs (§ 328*)—INFRINGEMENT—WIRE FENCE MACHINEs. The Bates patent, No. 577,639, for a machine for making wire fence, construed, and held not infringed.
4. WoRDS AND PHRASES--“CUT.” The word “cut” most usually signifies to make an incision with a sharp instrument; to cut or sever by the application of a sharp knife or edged instrument of some kind.
[Ed. Note—For other definitions, see Words and Phrases, vol. 2, pp. 1807–1809.] In Equity. Suit by the American Steel & Wire Company of New
Jersey against the Denning Wire & Fence Company. On motion for preliminary injunction. Motion denied.
Clarence P. Byrnes and Charles C. Linthicum (J. H. Preston and Charles MacVeagh, on the brief), for complainant, Thos. A. Banning, for defendant.
REED, District Judge. Bill for an alleged infringement by defendant of claims 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 19, 27, and 35 of letters patent
*For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
No. 577,639, issued by the United States to Albert J. Bates February
of operation or the way the device works, and at the result, as well as at the means by which the result is attained.”