Appellant in its advertising, made much of the line of cleavage idea. This seems to have been done without actual knowledge of appellee's patent. About the time the suit was begun appellant changed its manufacture to a device which it called "Miracle Washer." It was attempted by appellee to draw this device into the case notwithstanding no such washing-machine was actually manufactured, sold, or used prior to the filing of its bill. On objection made, appellee withdrew it prior to the entry of the final decree. Appellant made this withdrawal a basis for its motions presented before the entry of the decree, viz.: first, that the court make a finding that said Miracle machines do not infringe the claims as charged; or, second, that the court sustain appellant's motion made at the hearing to strike out all proofs offered with regard to said Miracle machines, at appellee's costs, with respect to said claims 2 and 4 in suit. This objection to the taking of the evidence was made at the time the testimony was taken, on August 31, 1911. No disposition of this motion was made by the court other than what is embraced in the final decree.

Appellant insists that appellee failed to give it any notice of its claim of infringement. It may be gathered from the record that Van Wormer was not advised of the Victor patent when he filed his application, i. e., January 13, 1908, although it had been issued some five months before. The Examiner cited it, and Van Wormer thereupon revised his claims. It does not appear from the evidence that the machines were marked. The answer denies the allegations of notice contained in the bill, and no evidence was taken to show direct notice. The appellee relies upon the said citation by the Examiner and the further fact that a Mr. Lane, representing the Iowa Washing Machine Company, claimed appellant was infringing some of its patents, and furnished a list thereof by numbers, among which

was No. 683,120, the patent in suit. The Iowa company is not shown to have had any connection with appellee. About a month before suit was begun appellant's president wrote appellee's lawyers that the question of infringement had been turned over to appellant's attorneys. This date, i. e., August 25, 1910, is the earliest date we are able to fix positively for the purposes of this hearing.

The errors assigned cover: first, the decree of the court finding the claims in suit to be valid and infringed; and, second, the failure of the court to grant said motions. Other facts appear in the opinion.

Mr. Taylor E. Brown and Mr. Clarence E. Mehlhope for the appellant.

Mr. Wallace R. Lane and Mr. Arba B. Marvin for the appellee.

Before BAKER, SEAMAN, and KOHLSAAT, Circuit Judges.

KOHLSAAT, Cir. J., (after stating the facts as above:)

(1) In support of its claims, appellee sets up the end accomplished-viz., the adjustment of the parts of its device in such a manner as to produce a lever-operated gear arrangement which relieves the tub-cover of the load imposed by the prior art and provides a detachable connection between the lid with its stirrer-shaft and driving-arm on the one hand, and the lever with its fly-wheel, speeding-gear, and other heavy operating parts on the other hand. In practice it often becomes necessary to lift the tub-lid in order to put in or take out articles, and for other purposes. Inasmuch as the operator is generally a woman, it is important that the burden attending that operation be minimized. If appellee's patent was the first to provide a lever-operated gear for a washtub which reduced the weight of the lid to a negligible quantity, he made such an addition to that art as amounted to invention. It was not necessary that he should have claimed it in specific terms if the device itself disclosed it. In Diamond Rubber Co. v. Consolidated Rubber Tire Co. (C. D., 1911, 538; 166 O. G., 251; 220 U. S., 428; 31 Sup. Ct., 444; 55 L. Ed., 527) the court says:

He [the patentee] must not put forth a puzzle for invention or experiment to solve but the description is sufficient if those skilled in the art can understand it. ** ** It is no concern of the world whether the principle upon which the new construction acts be obvious or obscure, so that it inheres in this construction.

This court said in Kuhlman Electric Co. v. General Electric Co., (147 Fed. Rep., 712; 78 C. C. A., 100:)

A patentee is entitled, not only to what he specifically sees, but to what has been brought about by his invention, even though not at the time actually seen.

The rule is well elaborated by the Circuit Court of Appeals for the Eighth Circuit in National Hollow Brake Beam Co. et al. v. Interchangeable Brake Beam Co., (106 Fed. Rep., 693; 45 C. C. A., 544.)

(2, 3) The contention of appellant that the same patentee had claimed this feature as a result of other and different arrangements of elements for which he had filed application for patents prior to the filing of the application in the present case is not deemed of weight. The patent in suit was granted prior to the grant upon any one of the prior applications. The patentee, as between applications pending at the same time, was at liberty to choose which should first go to a patent. For the purpose of anticipation, the date of issue controls. (Bates v. Coe, C. D., 1879, 365; 15 O. G., 337; 98 U. S., 31; 25 L. Ed., 68; Gray Telephone Pay Station Co. v. Baird Mfg. Co., 174 Fed. Rep., 417; 98 C. C. A., 353; Barnes Automatic Sprinkler Co. v. Walworth Mfg. Co., 60 Fed. Rep., 605; 9 C. C. A., 154.) As between his different applications, the question of prior invention could not arise. Appellant, however, asserts that the above result, which is termed a line of cleavage, is found in the prior art, and cites some forty-four patents and forty-nine public uses. Of these, appellant's expert McElroy mentions particularly three, i. e., Ruthven patent, No. 759,554, issued May 10, 1904, Christensen's patent, No. 845,615, issued February 26, 1907, and Mammen's patent, No. 874,095, issued December 17, 1907. The greater part of the other patents cited are too late for the purposes of anticipation. An examination of the three patents above enumerated discloses such difference in arrangement and adjustment as makes them in our judgment unavailable for purposes of anticipation of the claims in suit. Ruthven locates his gearing upon the cover and has no use for the pinion on the end of the drive-shaft, nor for its coöperating element, the segmental rack carried on the lever-handle. The whole weight of the operating machinery must be lifted whenever the lid is raised. This is the very feature which the patent in suit seeks to avoid and makes the Ruthven patent unavailable as an anticipation. The same objection applies to the Christensen patent. The lid carries the whole operating means. Mammen's patent also, even if prior to the patent in suit, would not anticipate, for the reason that its lid carries the heavy load of the operating means. In this patent, also, there is no speeding-up gear. It is, however, too late for purposes of anticipation, not having been issued until after the date of issue of the patent in suit. Of the prior public uses, we deem none of a character to require discussion.

Appellant insists that claims 2 and 4 in suit do not come within the construction herein given to the patent. Taken in connection with the drawings and specification, all four of the claims in suit call for a device in which the so-called line of cleavage and the

cover freed from the burden of the operating mechanism, are essential elements.

The object of the patent law

say the Supreme Court in Topliff v. Topliff, (C. D., 1892, 402; 59 O. G., 1257; 145 U. S., 156; 12 Sup. Ct., 831; 36 L. Ed., 658)—

is to secure to inventors a monopoly of what they have actually invented or dis"covered, and it ought not to be defeated by a too strict and technical adherence to the letter of the statute.

While claims 2 and 4 do not in terms call for the pinion at the outer end of the drive-shaft and the segmental rack on the leverhandle, those features may, for the purpose of restricting the claim so that it shall meet the requirements of the inventive idea, be gathered from the specification.

The subject is to be examined in the light of both specifications and of both sets of claims,

says the Supreme Court in Klein v. Russell, (19 Wall., 433; 22 L. Ed., 116) in speaking of the scope of a claim, and, proceeding, says:

The court should proceed in a liberal spirit, so as to sustain the patent and the construction claimed by the patentee himself, if this can be done consistently with the language which he has employed.

(4) The scope of a patent must be ascertained from the entire instrument. (Burke v. Partridge, 58 N. H., 351.) Though a claim may be illustrated it cannot be enlarged by the language of the specification. (R. R. Co. v. Mellon, 104 U. S., 112; 26 L. Ed., 639; Yale Lock Co. v. Greenleaf, C. D., 1886, 169; 35 O. G., 386; 117 U. S., 554; 6 Sup. Ct., 846; 29 L. Ed., 952; Continental Paper Bag Co. v. Eastern Paper Bag Co., C. D., 1908, 594; 136 O. G., 1297; 210 U. S., 414; 28 Sup. Ct., 748; 52 L. Ed., 1122.)

It is allowable

says Judge Lowell in Jones v. Barker, (C. C., 11 Fed. Rep., 600) — to construe the claims of a patent with reference to what has gone before, and to give the patentee the benefit of the restricted claim which results from such construction.

Thus it is apparent that, as stated by Walker on Patents, section 185

when it becomes necessary to construe a claim narrowly in order that its novelty may not be negatived by the prior art, or its validity otherwise overthrown, courts will give such a narrow construction, if they can do so consistently with the language of the claim and of the description.

From the whole patent it is clear that, to make the claims 2 and 4 effective, the so-called line of cleavage, in applying the power to the stirrer-shaft, must be preserved and therefore read into these claims.

Thus construed, and in view of the absence in the prior art and use of any device showing a washtub having a cover freed from the

weight of the impelling machinery and the so-called line of cleavage at the point where the power is applied to the drive-shaft, which carries the stirrer-shaft, and in view of the other novel features of the claims, we hold the patent to be valid.

Appellant's device is constructed under the Van Wormer patent, No. 939,645, dated November 9, 1909. In his specification, the patentee says:

The primary object of my present invention is to provide an improved gearing for washing machines of the type specified adapted to be compactly mounted upon the side of the tub, and having such a geared connection with the driving shaft that the tub lid can be raised and lowered at pleasure to remove or replace the agitator mechanism, without stopping the fly-wheel mechanism, and having an improved means for securing the detachable connection between the power shaft and the actuating gear therefor.

In its advertising appellant makes this feature of its device the center of its appeal to the trade and, of course, claims it to be a new invention. It also appears that appellant has appropriated other elements of the patent, as, for instance, the lever of the second class, specifically claimed by the patentee, and has in various ways proceeded to ignore the patent. In so doing appellant has been guilty of infringement and was properly restrained by the trial court.

(5) With regard to the motions to have the Miracle machine decreed to not infringe the claims in suit, or that, in the alternative, all evidence respecting it be stricken out at appellee's costs, we are of the opinion that there was no basis for the motion to have the court decree non-infringement as to said device. The motion to strike out evidence at appellee's cost cannot be here entertained. While the statutes provide for the taxing of costs against those creating unreasonable and vexatious costs, the motion is addressed to the discretion of the trial court. (Du Bois v. Kirk, C. D., 1895, 343; 71 O. G., 889; 158 U. S., 58; 15 Sup. Ct., 729; 39 L. Ed., 895; vol. 13, Cent. Dig., section 21.)

Some question is raised in the briefs as to the sufficiency of notice before bringing the suit. We are of the opinion that the notice was adequate for the purposes of the suit.

The decree of the district court is affirmed.

1. REISSUES

[U. S. Circuit Court of Appeals-Sixth Circuit.]

GRAND RAPIDS SHOW CASE Co. v. BAKER et al.

Decided June 30, 1914.

208 O. G., 1355; 216 Fed. Rep., 341.

ENLARGEMENT OF CLAIMS.

A reissue cannot be permitted to enlarge the claims of the original patent by including matter once intentionally omitted, and acquiescence in the rejection of a claim, its withdrawal by amendment, either to save the appli