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fendant's construction, even if its manufac- and 37, containing, as an element of the com ture of the parts supplied by it to the bination, an ordinary railroad, incapable of government is direct and not contributory in- resisting the firing strains of heavy ordnance fringement, does not come within the limi- adapted to be transported thereover, are limtations of those claims.

ited to the particular kind of railroad thus In claim 23 the combination of elements is described, and that, as to these claims, there as follows: (a) A railroad; (b) a railroad is no evidence of infringement, for it has not car, mounting heavy ordnance; (c) a foun- been shown that the railroad, upon which the dation or an emplacement, installed on the gun car was mounted at the proving grounds roadbed, associated with the railroad and before acceptance by the government, was a located beneath the car, when the car is in railroad of that description, and that the hisposition for ordnance firing; (d) the foun- tory of the action of the Patent Office, as dation or emplacement, co-operating with the shown by the file wrapper, is evidence that lower part of the car while the car remains in these claims the defendant limited its inin transportable position on a railroad, in- vention to those terms, and that the same rule capable of withstanding the shock incident to must be applied to the claims, with the limifiring the ordnance.

tation of transportable position of the car, Claim 42 is for a combination of (a) a when the gun and its mount are in firing railway; (b) a. railway car; (c) heavy position over the emplacement. ordnance mounted on a car; (d) an in- The application, as filed, presented 8 stalled emplacement at the sides of the rail, claims, none of which limited the ordnance to to support the gun during firing, while the be carried as "heavy ordnance," and the first car is maintained in traveling position on the claim alone contained the limitation that the railway.

gun was to be transported and brought into Claims 28, 29, and 30 each set out as an co-operation with the fixed base, “without beelement of the combination "an ordinary rail. ing removed from the mobile gun-carrying road, incapable of resisting the firing strains support.” These claims were extremely of heavy ordnance adapted to be transport- broad in scope, embracing inventions covered thereover,” and in each of those claims the ed by prior patents and by the prior art as foundation or emplacement is described in described in publications. They were reject'varying terms, as adapted to receive and ed upon the Paul and Sock patent, No. 675,support the ordnance, and to receive and re- 405, of June 4, 1901, and the French patent, tain the ordnance carrying car in transport- No. 181,653, of February 9, 1887, to Chevaable (in claim 42, "traveling") position, and lier. Thereupon the applicants amended

, to resist recoil under firing conditions.

their claims, and added new claims, so that Claim 35 and claim 37 each state, as one the application contained 12 claims, all of of the elements of the combination, “an or- which were rejected, except the seventh, dinary railroad incapable of resisting the which is not in controversy in this suit. Refiring strains of heavy ordnance adapted to jection of these claims was based upon the be transported thereover.” Claim 35 speci- Paul and Sock patent, and the French patent fies "anchoring means for the car and to Chevalier, above cited, the British patent, ordnance intact, constituting a part of the No. 6,488 of 1890, to Thomas English, and a emplacement and serving to retain the car publication in the Scientific American of Deand ordnance in operative position against cember 20, 1913. recoil.” And claim 37 includes “means for It is unnecessary to go into a minute disanchoring the transporting car with its cussion and consideration of other amendordnance in firing position on the car, said ments and rejections, which were made prior means comprising a fixed emplacement, oper- to July 25, 1917. By an amendment added ating to relieve said car of strains under fir- on that date, claims 28, 29, 30, 35, and 37 of ing conditions of the ordnance.

the patent in suit were amended, by including It is contended by the defendant that a limitation of an ordinary railroad incapathese claims must be narrowly, and not ble of resisting the firing strains of heavy broadly, construed; that in the defendant's ordnance adapted to be transported therestructure the car, when upon the emplace- over, and these claims were then allowed with ment, is not in transportable or traveling po- that amendment. sition; that it has not been shown that it has Claims 23 and 42, which do not include been used in combination with a railroad, that limitation, do include the limitations of such as is described in the claims; that there the car remaining in transportable position fore it has not infringed.

on the railroad when it is in position for It is contended that claims 28, 29, 30, 35, ordnance firing over the emplacement, in


11 F.(20) 390 claim 23, and while the car is maintained in statement accompanying the amendment of traveling position on the railway, in claim August 17, 1917, as follows: 42. It is clear that these limitations were in- "The amendment above submitted is dicluded in the claims to avoid the objection rected to that general broad feature of the of the patent examiner, based upon the prior invention disclosed in this application. art.

While the French patent cited illustrated In the Chevalier patent it is stated: “The possibly the general thought or conception object of this invention is a new slide car- of a railroad, a portable gun mount, and imriage (chassis-affut) designed to be used both placements, there is that lacking feature of for the transportation of field guns of all prompt transportation. A disassembling of calibers on railway tracks of any gauge and the parts is required in the French suggesfor running them in and out while on the tion, and the general arrangement is one track.”

wherein the entire car body is swung out of The chassis consists of a truck frame, de- position for transportation. By incorporatsigned to be used at the same time as a gun ing the term 'fixed emplacements,' or 'installcarriage chassis. It consists of a platform ed emplacements,' and by bringing into cerconstructed of two steel side beams, rein- tain claims the idea of maintaining the car forced by cross-beams and resting by means parts in transporting position, the claims of pivots on two trucks. The chassis, on clearly differentiate from any suggested prior which the gun is mounted, is transported on publication or practice." the railroad, and, when in position for fir- The Paul and Sock patent, No. 675,405, ing, as shown by the drawings and specifica- of June 4, 1901, is for an apparatus for untion, the rear truck is removed. The descrip- limbering heavy ordnance. The invention is tion and drawings show a supporting em- for apparatus for enabling ordnance, which placement or platform constructed to the is transported in parts or entire on a field right and left of the track to receive the railway vehicle, and is mounted on a wooden weight of the chassis, when swung around on or iron base plate, and is rigidly connected its swivel mounting on the front truck, and to thereto, to be easily brought into firing posihold it firmly in firing position and relieve tion, and to be again mounted on a field railthe axles of the truck of the stress of firing. way vehicle. The apparatus comprises a The chassis carries at its front a pivot, which number of screw spindles, each of which has secures it to a socket in the front firing plat- a nut arranged in the base plate and can be form. The rear truck is removed and the inserted into a foot bearing sunk into the rear of the chassis is supported by rollers ground at the place desired, so as to enable resting upon the traversing circles of the the base plate to be removed from the field rear platform, but the rollers may be replac- railway vehicle, and, when the latter has been ed by any other means of support on the drawn out, enable the base plate to be lowerground. Pivoted jacks under the frame of ed to the ground. The claims are: the front truck support the whole weight, "1. The combination with a gun mount without fatigue on the axles.

and jackscrews for raising and lowering the The Chevalier invention embodies the first same working in suitable nuts in said mount; of the two essential elements which the plain- of foot bearings for said jackscrews to be tiff claims for its patent, namely, supporting sunk in the emplacement for the gun, said means or foundations adapted to be embodied foot bearings fitting recesses in the gun in the earth under or at the sides of the track mount when lowered into position for firing, at the firing point, and also the second essen- for the purpose set forth. tial element, namely, a car carrying heavy

“2. The combination of a gun mount, ordnance (for the Chevalier patent is for jackscrews working in suitable nuts in said guns of all caliber) and adapted to co-operate mount for raising and lowering the same, and with the supporting means while still in footbearings for said screws, sunk in the emtransportation position over the track, in placement for the mount and fitting recesses such a way that the car is anchored in fixed therein when the mount is lowered into firing position and the shocks incident to firing are position; of means for positioning a gun cartransmitted to the earth through the support- riage with the gun trunnions above the truning means, and not through the car running nion bearings of the mount, substantially as gear, minus the limitation as to the car "while and for the purposes set forth." still in transportation position over the The drawings show the gun, supported track," and that the necessity and intention upon its platform or base plate, carried by of so limiting the claims in suit was in the front and rear trucks upon a railway, with mind of the applicants is made clear by the fixed emplacements embodied in the earth at



either side of the railway tracks. Foot bear- [2] In view of the rejection by the Patent ings are sunk into the ground at the piace Office of the claims which did not contain the where the gun is to be brought into iring limitation of the transportable position of position, and in the base plate, in corre- the car, nor that of a railroad incapable of sponding number and position to the foot- withstanding the strain of gun fire, and the bearings, are nuts for receiving screw spin- fact that the inventors did not insist upon the dles, which, when screwed in, bear first upon broad claims presented, but acquiesced in the foot bearings, and, when further rotated, their rejection by the Patent Office, and acraise the gun on the base plate and gun cepted claims 23, 28, 29, 30, 35, 37, and 42, mounting from the vehicle, so that the latter as proposed by them and allowed by the Patcan be run out from below, and, when sub- ent Office, they come within the rule of strict sequently rotated in the opposite direction, construction of such limitations. Judge Bufallow the base plate to descend to the ground. fington thus stated the rule in Yates v. Smith It will be seen that in this invention the gun et al. (C. C. A.) 271 F. 33, at


35: support or base plate is lifted, so that the "The claims he originally made contained trucks can be removed, and the gun with its no location limitation. They were rejected support is therefore no longer in transport- by reference, inter alia, to the patent of Patable position on the railway.

terson, No. 128,651. Its subject matter was The publication in the Scientific Ameri- a mirror swinging in a stationary frame, and can of December 20, 1913, cited by the exam- the adjusting mechanism was located on the iner, showing "a fort that travels on wheels," mirror. Under stress of this reference, and describes the Schneider system for a mobile to avoid rejection, Bogenberger canceled, and battery running on rails, in which a gun with substituted for his canceled claims, the presa caliber of eight inches (admittedly a large ent ones, which located the adjusting mechacaliber gun) is carried upon a cradle-shaped nism on the frame. We are not concerned platform supported at either end upon trucks with the question whether this action of the for transportation on an ordinary railway. department was right (Vanmanen v. LeonThe gun car is provided with two bogie ard, 248 F. 939, 161 C. C. A. 57), or whethtrucks and a sheet steel platform, lower in the er Bogenberger, by contesting, could justly middle than at the ends, in which lower part have obtained a broader claim. The decisive the eight-inch piece is carried on a central thing is that, whatever contention to the conswivel mount. The side members of the plat- trary Bogenberger might have made, he did form carry two articulated swinging sup- not make it, but himself became the actor, ports, the outer ends of which carry screw- and tendered and accepted claims which readjusted base plates, which are employed stricted him to location limits, namely, on the when the gun is swung around with its longi- frame of the window. ch being the conditudinal axis at right angles to the length of tion of claim limitation and the consideration the car.

These screw-adjusted base plates for which his patent issued, it follows that are fixed upon the ground in the illustrations, this location limit must be enforced, when he in order to take the strain of firing and pre- attempts on patent enforcement to expand vent the overturning of the car. The illus

his claims by emasculating such enforced lim

itation. For this court to adjudge otherwise trations show the supporting members with their screw-adjusted base plates resting upon the guise of mechanical equivalents, undo the

would be for us to now in effect, and under the ground, with the gun at various angles. action of the Patent Office and close to the This publication, representing the Schneider public a field of manufacture which Bogencoast defense train, sets out the merits of the berger disclaimed, and which the Patent 0fSchneider system, covering similar points office forced him to make as a condition of semerit to those set out in the specification of curing his claim.” the patent at suit, and the system is appar- See, also, Roemer v. Peddie, 10 S. Ct. 98, ently for use upon an ordinary railway. 99, 132 U. S. 313, 317 (33 L. Ed. 382), where There are stressed in the article the merits of Mr. Justice Blatchford said: “This court mobility of batteries upon railways, as op- has often held that when a patentee, on the posed to batteries upon ramparts of perma- rejection of his application, inserts in his nent forts, the strategic advantages of secrecy specification, in consequence, limitations and of the plan of defense, better utilization and restrictions for the purpose of obtaining his economy of material, and the advantages of patent, he cannot, after he has obtained it, employing the railway for other purposes of claim that it shall be construed as it would transportation in times of war and in times have been construed if such limitations and of peace.

restrictions were not contained in it."

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11 F.(20) 390 [3] A further reason for restricting the not a case in which the doctrine of equivaclaims to the specified elements is that it is lents is applicable, for the question is upon a patent for a combination of elements. In the elements of the claims of patent, and not such a claim, if the patentee specifies any ele- upon the question of infringement of the ment as entering into the combination, either plaintiff's structure by the use of mere medirectly by the language of the claim, or by chanical equivalents. such a reference to the descriptive part of Passing to claim 35, it contains a limitathe specification as carried such element into tion of “anchoring means for the car and ordthe claim, he makes such element material to nance intact, constituting a part of the emthe combination, and the court cannot declare placement and serving to retain the car and it to be immaterial. It is his province to ordnance in operative position against remake his own claim, and his privilege to re- coil.” In the defendant's structure, there is strict it. If it be a claim to a combination, no anchoring means for the car, and thereand be restricted to specified elements, all fore none for the car and ordinance intact. must be regarded as material, leaving open A car, in accordance with both the ordinary only the question whether an admitted part and the mechanical meaning, is a vehicle on is supplied by an equivalent device or instru- wheels, and intact means left complete or mentality. Fay v. Cordesman, 3 S. Ct. 236, entire. Therefore, when we use the language, 109 U. S. 408, 27 L. Ed. 979.

"car and ordnance intact," we

mean the In White v. Dunbar, 7 S. Ct. 72, 119 U. S. transporting car left complete or entire up47, 30 L. Ed. 303, the Supreme Court said: on its wheels. In the plaintiff's construction, "The claim is a statutory requirement, pre- as shown in the drawings and described in scribed for the very purpose of making the the specifications, the trucks and the carrying patentee define precisely what his invention girder are inseparably united by means of is; and it is unjust to the public, as well as pillars mounted upon the truck frames on an evasion of the law, to construe it in a opposite ends of the car, and extending manner different from the plain import of its through the structure of the girder mount, so terms. This has been so often expressed in as to hold it rigidly in position upon the the opinions of this court that it is unneces- trucks, but allowing sufficient play for curves sary to pursue the subject further. See Key- and to avoid friction of the parts when movstone Bridge Co. v. Phænix Iron Co., 95 U. ing upon the railway. Moreover, the girder S. 274, 278 [ 24 L. Ed. 344); James v. Camp- mount is also inseparably connected with the bell, 104 U. S. 356, 370 [26 L. Ed. 786].” trucks by means of the knuckle joints, by

There cannot be any serious doubt that, in which it is lowered, so that the depressed the gun mount and foundations of the de- portion may rest upon the side foundations fendant's structure, the car does not remain and be raised again for transportation. in transportable position on the railroad Turning now to claim 37, it contains the when the gun mount is in position for firing. limitation, “means for anchoring the transWhen in that position, the track extending porting car with its ordnance in firing posiover the pit must, of necessity, have been tion on the car, said means comprising a fixed previously removed. The car, consisting of emplacement operating to relieve said car of the girder mounted upon its trucks and run- strains under firing conditions of the ordning gear, is no longer intact. To the con- nance.” Construing this in connection with trary, the gun mount, when assembled with the part of the specifications previously the emplacement, is lifted from the trucks, quoted in this opinion, which stress the high and the trucks are removed out of the way. degree of mobility at all times of the plainIt cannot be said that a car is in transport- tiff's invention, and with the plain meaning able position when it is not mounted upon its of the words, it is evident here, too, that in trucks, even though the trucks are near by the transporting car of the defendant's conupon the rails.

struction, when the girder and gun are anA complete answer is found to the plain- chored to the emplacement in firing position, tiff's contention that the car is still in trans- they no longer have any connection with the portable position, because the girder or body trucks, and therefore the transporting car, of the car is still maintained in position di- being disassembled, is not anchored with the rectly over the railroad, by the fact that, ordnance when the latter is anchored and in when the mount is in firing position, the rail- firing position. road is without rails across the pit, and, if Taking the term "transporting car" as the trucks were attached and an attempt meaning a vehicle on wheels, it is apparent made to move the car, either forward or that claim 37 is limited to means for anchorbackward, it would fall into the pit. This is ing the car, including the trucks and the gird

er with the gun mounted thereon, in firing construed, in order to sustain a meritorious position on the car; that is, on the vehicle on invention representing a forward step in the. wheels.

art, and that it must not be limited to the All of the claims in suit, except claims 23 structure described in the specifications, or and 42, have the limitation of an ordinary shown in the drawings. The cases cited for railroad, incapable of resisting the strains of the plaintiff, however, are entirely outside of heavy ordnance adapted to be transported the rule applied here, in which the claims are thereover. As the prior art was cited by the strictly construed because of limitations purexaminer in disallowing the original claims, posely introduced by the applicant to overwhich did not include this limitation, the come broader claims rejected by the Patent same rule of strict construction must be ap- Office. Counsel have argued very earnestiy plied as in relation to transportable position. that the evidence shows that the invention It is nowhere shown in the defendant's proofs was a startling revelation in the art, and that that the defendant's structure was used upon the utility of its combination is thoroughly a railroad incapable of resisting the firing demonstrated. This line of argument is basstrains of heavy ordnance adapted to be ed upon what developed from the use of the transported thereover. While it appears in mounted mobile armament constructed by the the defendant's testimony that the ordinary defendant, which is not relevant, unless the railways in France were of somewhat lighter defendant's structure is in accordance with construction than that at Sandy Hook, it is the claims of the patent in suit. If that were also shown that at Sandy Hook the gun was assumed, the plaintiff's invention would be fired on the railway tracks without the use entitled to whatever merit such proof carof the pit and emplacement, without damage ries with it, and to the application of the rule to the tracks, and that in France the guns of liberal construction which rightfully folwere nearly invariably used with the pit em- lows. But it is found that the defendant's placements, in order to obtain the necessary structure was not based upon the combinalong range.

tion shown in the claims of the patent in suit, It is contended for the plaintiff that the and therefore the major premise is hypothetlimitation should mean "an ordinary rail- ical and the conclusion is not established. road," and that it should be assumed that an Luellen and Dawson, in their combinaordinary railroad is incapable of resisting the tion, used no new elements. The cradle-shapfiring strains. There is no testimony to that ed gun carriage, mounted upon its two trucks, effect, except that of a witness who testified for carrying heavy ordnance on railroads, that he could fasten the track to the car, so and the fixed emplacements for firing from it would go if the car went, and under such points on a railroad, were old in the art at circumstances necessarily the track would be the time of filing the application for the patdisplaced. One of the defendant's witnesses ent on November 23, 1915, and no evidence testified that, if means were devised for

was introduced to carry the invention back of clamping the car to the track, the track would that date, and it doubtful whether the comprobably stand the firing, but with distortion bination was not anticipated, in view of the to the track. There is nothing in the defendant's construction, nor in the method of use

publication in the Illustrated London News of

November 21, 1914, showing in diagram a 42of the gun mount, to show that the gun was to be clamped to the track; but it was shown centimeter Krupp howitzer used by the Ger

mans in the war. that it could be used upon the track where it

The gun, mounted upon a was usable at all—that is, at an angle of 15 steel framework supported on trucks upon a degrees or less, without impairing the track. railroad, is substantially reproduced in form

In the defendant's construction, the track in the drawings of the plaintiff's patent. The is not to be used when the gun is raised to description accompanying the diagram in the an angle of more than 15 degrees, not be publication shows that at the firing point a cause of risk to the track, but because the solidly built platform of concrete is prepared track must be removed from beneath the fir- beforehand, in order to support and keep ing platform in order that the breech of the steady the enormous mass of the gun, and gun may reach into the pit. The conclusion hydraulic jacks resting on the foundation is that, the claims being restricted to the ele hold it in position. If the defendant's strucments set out, the defendant's structure does ture is such as to read upon the patent in not come within the claims relied on in the suit, the publication is quite persuasive of patents in suit.

the conclusion that the patent is anticipated It is vigorously contended on behalf of by the diagram and description in this pubthe plaintiff that the claims should be broadly lication.


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