11 F.(2d) 386 8 a remedy at law afforded him by a statute of Louisiana, the case might properly be transferred to the law side of the court, and there be proceeded with under the terms of equity rule No. 22, since the jurisdiction here is sought upon a diversity of citizenship and an alleged federal question, except for the fact that United States courts have no jurisdiction in original cases of mandamus. Encyc. U. S. Supreme Court Reports, 20. [8] The second prayer of the bill is in no better case. The prayer amounts to no more than that this court, as a court of equity, may competently intervene to restrain threatened criminal proceedings for the alleged violations of a statute alleged to be valid and constitutional, upon the ground that such proceedings, by a misapplication of the statute, may work an injury to complainant's proposed business. This the courts of the United States are forbidden to do. Section 265 of the Judicial Code (Comp. St. § 1242) specifically prohibits injunctions to stay proceedings in state courts: "The writ of injunction shall not be granted by any court of the United States to stay proceedings in any court of a state, except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy." The exceptional cases in which a court of equity is justified in interposing its restraining arm to prevent criminal prosecution are stated in Re Sawyer, 8 S. Ct. 482, 124 U. S. 200, 31 L. Ed. 402, Davis & Farnum v. Los Angeles, 23 S. Ct. 498, 189 U. S. 207, 47 L. Ed. 778, and Dobbins v. Los Angeles, 25 S. Ct. 18, 195 U. S. 223, 49 L. Ed. 169. [9] From these decisions it appears well settled that, in cases only where property rights would be destroyed, criminal proceedings under a void law or an ordinance may be reached and controlled by a court of equity. In this case these necessary elements are not present in the bill, and the sole injury or loss to the complainant would be such only as might arise from his arrest and prosecution. His bill clearly shows that he anticipates only some action by a state officer under a penal statute, by reason of a wrongful construction of same. [10] If the state officers sought to be enjoined are proceeding under a valid statute of the state, they represent the state, and a suit to enjoin them is a suit against the state, within the meaning of the Eleventh Amend ment to the Constitution. On the other hand, if the proceedings are to enforce an unconstitutional statute or ordinance, the persons seeking to enforce it on behalf of the state are not considered as representing the state, but act as individual wrongdoers, and a suit to enjoin them is therefore held not to be a suit against the state. Central Consumers' Co. of New Jersey v. Austin (D. C.) 238 F. 619. "If the statute is conceded to be valid, a federal court of equity has no more right to interfere with the enforcement of the state's criminal laws by its law officers, through its courts, because of anticipated errors in the construction of the statute by the judge, than it would have to interfere because of anticipated errors in the decision of facts by a jury." Id. See, also, Hoffman v. McElligott, 259 F. 525, 170 C. C. A. 487. The contention of complainant that his deprivation of the permit amounts to a deprivation of his property without due process of law, and denies him the equal protection of law, does not sufficiently show that the refusal of a permit made any distinction between himself and any other persons who have been so denied since the adoption of the commissioner's policy or rule. Should we concede that the denial of this permit amounted to a deprivation of property, it would not follow that the rule or policy of the commissioner was contrary to the Fourteenth Amendment. In Grainger et al. v. Douglas Park Jockey Club (C. C. A. 6th) 148 F. 513, 78 C. C. A. 199, 8 Ann. Cas. 997, it was held that the constitutionality of a statute must be determined by its provisions and not by the manner in which it is in fact administered. [11-13] A statute or ordinance depriving one of his liberty or property is not in violation of the Fourteenth Amendment merely because of such deprivation; nor is every classification made under the police power of a state voidable therefor. The test is that, to be valid, they rest upon some reasonable public policy and some real and substantial relation to the object sought to be accomplished; and every presumption is in favor of the rightful exercise of its power by the Legislature or officer acting under its authority. From these considerations it follows that the complainant's bill must be dismissed. LUELLEN v. BALDWIN LOCOMOTIVE WORKS. right, title, and interest in and to the letters patent, together with all rights of action, (District Court, E. D. Pennsylvania. March 6, claims, and demands for past infringement, 1926.) No. 2771. 1. Courts 449 (3)-Remedy for patent infringement in manufacturing goods for United States after July 1, 1918, is by suit against United States in Court of Claims (Act July 1, 1918, amending Act June 25, 1910 [Comp. St. Ann. Supp. 1919, § 9465]). Remedy for patent infringement in manufacturing goods for United States after passage of Act July 1, 1918, amending Act June 25, 1910 (Comp. St. Ann. Supp. 1919, § 9465), is by suit against United States in Court of Claims. 2. Patents 168(2)-Rule of strict construction held applicable to claims allowed by Patent Office after rejection of broad claims acquiesced in by patentee. Where patentee did not insist on broad claims of patent, but acquiesced in their rejection by Patent Office, claims accepted come within rule of strict construction of such limitations. 3. Patents 177-Claims of patent for combination of elements should be limited to elements specified. Where patentee specifies any element as entering into patented combination, he makes such element material to combination, and court cannot declare it immaterial, and hence claims of patent for combination of elements should be restricted to elements specified. 4. Patents 328. to Luellen Railway Artillery, Incorporated. Thereupon, on November 27, 1923, the Luellen Railway Artillery, Incorporated, with leave of court, filed a bill in the nature of a supplemental bill, setting out the issuing of the patent, the acts of infringement complained of, and the assignment from Luellen, to which the defendant filed its answer January 4, 1924. The purpose of the invention, as set forth in the specification, may be briefly stated to be a combination providing a means by which heavy armament, consisting of guns of long range and large caliber, may be mobilized by mounting them upon cars adapted for transportation on railroads, and by providing, at any desired point or points upon the railroads to be used for the purpose, gun emplacements constructed of sufficient strength at and alongside of the roadbeds and tracks, to anchor the gun mount upon such prearranged emplacements, so that the gun may be fired from such emplacements, so that the shock and force of recoil in firing will be communicated to the earth through the fixed emplacement, without strain upon the trucks or wheels of the transporting car. A further purpose of the patent, in order to provide that the highest degree of mobilDawson and Luellen patent, No. 1,244,431, ity of the mounted gun may be retained at claims 23, 28, 29, 30, 35, 37, and 42, for a system of mobile armament, held not infringed. In Equity. Patent infringement suit by Lawrence W. Luellen against the Baldwin Locomotive Works. Bill dismissed. Clinton W. Frontz, of Philadelphia, Pa., and Lindley M. Garrison and Theodore S. Kenyon, both of New York City, for plain tiff. Francis B. Bracken, of Philadelphia, Pa., and William A. Redding and Worthington Campbell, both of New York City, for defendant. THOMPSON, District Judge. This is a suit for infringement of letters patent No. 1,244,431, granted October 23, 1917, for a system of mobile armament, upon application filed November 23, 1915, by C. F. Dawson and L. W. Luellen. Before the issuance of the patent, Dawson executed an assignment of all his rights in the patent to Luellen. The bill was filed June 21, 1923, and after answer was filed, on October 10, 1923, Luellen executed an assignment of all his all times, is thus expressed in the specification: "With our invention it will be seen that guns of the heaviest caliber may be transported from place to place, and may be mounted in firing position in such a way shocks of recoil are fully taken care of, and that they are adequately supported, and the that, at the same time, this may be done without removing the guns or gun mounts from the running gear, or displacing the same from the tracks or roadways. In this way the highest degree of mobility is retained at all times, and the guns, while firmly supported during firing, may be almost instantly shifted from one location to another as conditions may require. Thus no delay is incurred in getting the guns in condition to fire, and at the same time, in case of the necessity for retreat, the guns can be quickly withdrawn to positions of safety. This is a very important consideration, as it permits the artillery to be used effectually up to the last possible moment, without danger of its loss." In order that this high degree of mobil 11 F.(2d) 390 ity may be retained, the specification and permanent fixed fortification. When the gun drawings of the patent clearly show that the car of this invention is secured to the founconception in the minds of the inventors dation, its weight is entirely removed from was that the car, with the gun mount and the rails and from the running gear. It regun mounted thereon, should remain intact, tains its transportation position with respect without disengagement from the frame or to the rails and running gear, so that it may body of the car of its trucks or wheels, and readily resume its mobility, but it is otherthat the running gear of the car should be wise independent of them. No part or comleft without displacement from the railway ponent of the firing shocks is transmitted tracks. The gun is mounted, in the drawings through the running gear to the earth. On and specification, upon a turntable support- the other hand, when the weight of the gun ed by a platform in the shape of a cradle, car has been returned to the running gear upon the central and depressed portion of and tracks, and the supports between the car which the gun rests upon its turntable, and and the foundation removed, the car is freely the extensions of the cradle-shaped platforms mobile as a railroad car, and is independon the higher elevation are supported, at ei- ent of the foundation. It may then be movther end, upon the trucks. A pair of side ed to a new firing position or transported beams, forming part of this platform conwherever desired." struction, "situated in parallel relation at the sides of the carriage, are supported by the upper ends of knuckle joints disposed at opposite ends of the vehicle; the lower arms of the knuckle joints being supported by pivotal means on the trucks." The purpose of the knuckle joints is, through their operation, when bent at the joint, to lower the platform carrying the gun, so that the depressed part of the side beams of the platform will come into engagement with and rest upon I-beams embedded in the concrete of the previously constructed emplacement, while the elevated extensions of the platform continue to rest at each end upon the trucks, and the running gear upon the railroad track. As stated in the plaintiff's brief, the invention involves the combination of two essential elements: "(1) Supporting means or foundations adapted to be embedded in the earth under or at the sides of the track at the firing point; and (2) a car carrying heavy ordnance, and adapted to co-operate with the supporting means while still in transportation position over the track, in such a way that the car is anchored in fixed position and the shocks incident to firing are transmitted to the earth through the supporting means, and not through the car running gear. "Thus the invention provides a gun car that is freely movable from point to point over ordinary railroads, but which, by easy manipulation and without the necessity of removing the gun from the car, or of removing either from position over the track, may be anchored in fixed and rigid relation to supporting means or foundations embedded in the ground, so that in such position the gun is as solidly emplaced as if it were in a The emplacement shown in the drawings and described in the specification is constructed by filling a hollow in the roadbed beneath the track with concrete, in which are embedded the ties for the rails, and also embedded therein in lateral position are Ibeams, outside of and parallel with the rails, the upper channels being vacant, and free to receive the rectangular framework of the mobile carriage when the latter is lowered into supporting position, the sides of the carriage being provided with a series of laterally extending bolt brackets, with which swiveled bolts, pivoted to an anchorage secured alongside of the outer side of the Ibeams, are arranged to be swung upwardly into position within the slots of the bolt brackets. The swiveled bolts are provided with nuts, and, when they are engaged with the brackets and the nuts tightened, the platform, with the gun mounted thereon, is anchored in position. No novelty is claimed in any of the constituent elements of the combination, nor in any of the various parts of the mechanism of its construction. With this brief outline of the system of mobile armament, as described in the specification and shown in the drawings of the patent in suit, we will state the acts of the defendant which, it is claimed, constitute infringement. In the fall of 1917, after the United States had entered the World War, it was known that a great drive on the part of the German army was contemplated for the following year; that preparations were being made to that end; that the Germans were equipped with heavy artillery of large caliber and long range, which would be employed in the drive, while the Allies were not sufficiently equipped with heavy guns of large caliber to meet the expected German offensive. The United States government, having a number of large caliber, long-range, naval guns, that had been constructed for use upon battleships, which were not yet completed and could not be completed in time to use the guns at sea, determined to take up at once the problem of using this available armament, and thus, by the use of these guns upon land, to place at the disposal of the Allies guns of such power and range as would furnish the Allies with instrumentalities capable of use as a counter offensive for defense against the German attack. After consideration of various plans offered, and after rejection by the War Department of the use of the patent in suit, authority was given and plans ordered to be prepared for the utilization of these guns mounted upon railway cars, to be fired from fixed emplacements, upon which the guns could be placed in position for effective firing from points on the railways in France, and be readily removable from place to place, so that they would not suffer the disadvantage of guns in fortifications upon fixed emplacements. After preparation of the plans, contracts were entered into with the defendant, the Baldwin Locomotive Works, for the construction of parts to be used with parts supplied by the Navy Department. In accordance with these contracts, the defendant constructed for the United States government five gun cars, consisting of railway trucks and steel girders, constituting the gun mounts and the steel parts for 12 pit emplacements and foundation lifting jacks. The heavy ordnance, to be mounted upon the cars, consisting of 14-inch caliber guns, and all strictly ordnance parts, were supplied to the defendant by the government. These gun cars, with the foundation parts, and the guns and ordnance parts supplied by the United States, were delivered to the government prior to July 1, 1918, and are the only structures manufactured by the defendant which need be taken under consideration in this suit. [1] There can be no question that the gun mounts and foundations, or parts thereof that were manufactured by the defendant, after the passage of the Act of July 1, 1918, amending the Act of June 25, 1910 (chapter 114, 40 U. S. Statutes at Lage, 705 [Comp. St. Ann. Supp. 1919, § 9465]), were manufactured for the United States, and therefore the plaintiff's remedy for infringement by manufacture after that date is by suit against the United States in the Court of Claims, Foundation Co. v. Underpinning & Founda tion Co. (D. C.) 256 F. 374; Floyd Smith Aerial Equipment Co. v. Irving Air Chute Co. (D. C.) 276 F. 834. None of the parts manufactured by the defendant were, in themselves, patentable. They were all known and practiced in the prior art. The gun mount and its foundation, as set up and delivered to the United States under the contract, consist of a steel girder which, with some slight modification in form, is similar to that used in mounting heavy guns on battleships, but is sufficiently longer than the navy gun mount to allow for mounting upon railroad trucks. The girder is constructed of two parallel steel plate girders, secured together by transverse braces or struts. This girder is carried upon two transverse beams, each supported by and secured to a 12-wheel truck, one at either end of the girder. Upon this girder the gun is mounted upon its slide and trunnions. To the under part of the side plates or girders is secured a transom plate with a depending pintel. The beams supporting the girder upon the car trucks are detachably secured upon the trucks, so that the girder may be raised by means of jacks from the trucks, when placed in proper position over the emplacement or foundation. The foundation parts manufactured by the defendant consist of heavy timber and structural steel members, adapted to be placed in a pit excavated under the roadbed and extending beyond the rails on either side thereof. The pit is relatively shallow at the forward end and deep at the rear end, so as to afford space for the breech of the gun when fired from high elevation and for its recoil. The timbers support two structural steel side members, consisting of plates forming the sides of the pit. These side members are united and strengthened by transverse members at the rear or deep end of the sisting of a large casting, which extends pit. A transom bed plate is provided, conacross the pit and rests upon the side members. It is held in position by lugs, which engage in slots provided in each side member. The transom bed plate is provided with a socket into which the depending pintel of the transom plate fits. The girder carrying the gun is raised from the trucks, when the gun mount is in proper position over the pit, for the pintel, when the transom bed plate is raised by means of screws bearing upon the top of the side members of the founda tion, to be received by and fit into the socket in the transom bed plate. 11 F.(2d) 390 The purpose of the foundation is to act as a support for the gun mount when it is in fixed position, to hold it in position over the pit, to take the stress of the firing and recoil of the gun, and to afford space for the breech of the gun and its recoil. In order to operatively combine the gun mount with the pit and its foundation, it is necessary to remove so much of the beams supporting the rails forming the track as extend across the pit, and as to so much of the pit as is covered by the transom bed plate the latter is provided with grooves in continuance with the rails, so that the forward truck of the gun car can be moved across the pit to place the mount in position after the transom bed plate has been secured to the steel side members of the foundation before the removal of the rail beam and rails. The removal of the rails and their beams is necessary, in order to permit the breech of the gun, when it is elevated over 15 degrees, to extend into the pit and to provide space for its recoil of 44 inches when fired, as the bottom of the gun carriage, whether on or off the trucks, is brought into such close proximity to the roadbed that it can. not be fired at an elevation greater than 15 degrees, which must be attained when the target is at a distance that cannot be reached at that elevation. It is also necessary to have sufficient lateral space to allow for the training of the gun at an angle of 22 degrees either way from its normal position. The object of the foundation is not only to provide a support for the girder carrying the gun, when in fixed position, and to hold it in position over the pit, but to take the thrust of the gun through the transom and transom bed plate, and thence through the supporting structural steel members and timbers in the pit to the earth. It will be seen again that, when firing the gun in its anchored position, the width of the pit being greater than the distance between the rails, it is necessary for the rails to be removed. When the gun is fired at an elevation of 15 degrees or less, it may be used as a sliding mount upon the rails, so that the pit and foundation are no part of a combination necessary when it is intended to fire at that elevation or less. In order to demount the gun girder from the trucks, the defendant's construction supplies jacks of sufficient strength to support at each end of the girder, by means of the cross-girder, the weight of the gun and its mount. By means of these jacks, the gun is raised from its position upon the trucks, and the transom bed plate is raised by means of the screws bearing on the side plates of the pit, so that the pintel in the transom casting engages with the socket of the bed plate. When the gun is in action, the forward jacks are removed, and the rear end of the gun mount is additionally supported by the rear jacks. The gun, with its mount, is thus entirely detached from the trucks of the car, the tracks over the pit have been removed, and the trucks are entirely disassembled from the body—that is, the carrying girder of the car. Under the contract with the government, all structural ordnance parts, such as gunbreech mechanism, slide complete, deck lugs, elevating gear, transom castings, all elevating gear details, gun-loading devices, consisting of shell car and trolley hoist, and the sighting devices, were furnished by the government; all other parts of the gun car by the contractor. The parts furnished by the defendant were the main girder, with its accessories, consisting of the forward and rear jacking beams, the forward and rear trucks, with the truck girders, and the foundation with its jacks and foundation equipment. It is not disputed, therefore, that neither the foundation parts, supplied by the defendant, which excluded the transom bed plate, without which the foundation would not be complete, would be operable as a foundation, nor would the gun mount be operable without the parts supplied by the government. The contract provides: "The contractor will also be required to erect and assemble on each gun car the ordnance material which will be manufactured and supplied to him by the government." In this construction the plaintiff claims infringement of the claims in suit, in that the defendant's pit foundation is "the supporting means or foundation adapted to be embodied in the earth under or at the sides of the track at the firing point," and the defendant's gun car is "a car carrying heavy ordnance and adapted to co-operate with the supporting means while still in transportation position over the track in such a way that the car is anchored in fixed position and the shocks incident to firing are transmitted to the earth through the supporting means and not through the car running gear." The defense of noninfringement was set up, upon the ground that the claims upon which the plaintiff relies, Nos. 23, 28, 29, 30, 35, 37, and 42 of the patent in suit, must be limited and restricted, because of the prior art and the history of the claims allowed in the Patent Office, as shown by the file wrapper, in such manner that the de |