gestion of conceit in the matter, they looked to us for the development of a vacuum sweeper that would be in every way efficient. We had hundreds of such letters urging us, hoping that we would go into the business, until finally we did go into it."

Undoubtedly, defendant has honestly endeavored to avoid the patent, and to find its justification in the prior art and in the history of the patent itself. We shall see whether it has succeeded. Claim 4 in issue reads:

"4. A pneumatic cleaner, comprising a casing opening at its front end, a dust receptacle in said casing detachably connected therewith, a nozzle head detachably connected with said casing and covering the open front end thereof and the open end of said dust receptacle to hold the dust receptacle in position, said nozzle being provided with an opening therethrough connecting with said dust receptacle, a suction creating device connected with said casing, and sustaining wheels connected with said casing and operatively connected with and operating said suction device by the backward and forward travel over any surface."

As to patentability, I do not entertain any doubt. This is one of those simple arrangements which looks easy after it has been done, but nowhere in the prior art can a patent or structure be found which will read on claim 4, supra, and some of the patents, such as Conover, No. 847,278, show how not to do what Quist and Blanch accomplished. A detailed discussion on this branch is unnecessary, for mere inspection of the various models will at once demonstrate that workers in the prior art either did not think of this feature in combination or did not know how to attain it.

The important question is that of infringement. On this Branch defendant insists that the file wrapper history requires that the claim. shall be so strictly limited that it cannot apply to defendant's device, and also that the prior art demands a similar limitation. Defendant's structure follows Quist and Blanch, with the modification that the nozzle head and the dust receptacle (the upper plane surface of which forms the horizontal screen) are in one piece, and the closed back of the dust receptacle can be opened by a clasp, when the contents are to be emptied. Of course, in a one-piece structure, the bag being closed at the rear, the clasp for opening and closing is an obvious expedient. This narrows the controversy to a single point; i. e., is infringement escaped by making the nozzle head and dust receptacle in one integral piece, instead of in two pieces? Counsel for defendant have painstakingly analyzed the claims of the original and reissued patents, the amendments and arguments of counsel, and the rulings and comments of the Patent Office. But all must be read in the light of the art as then understood. While much can be said to the effect that claim 4 can be construed as not excluding the use of the nozzle head and dust receptacle as one piece, more especially in view of the language of claims 5 and 6 ("a nozzle * removable from the casing independently of said receptacle; a nozzle head independent of said dust receptacle * ** *"), yet I am willing to adopt the construction that claim 4 means a dust receptacle separable from the nozzle head.

*

* * *

[2] In determining whether the obvious equivalent of defendant defeats claim 4, it must be remembered that the test is the character of

242 F.-60

treatment to be accorded to the patent. There will not be found a better illustration of the proposition that courts will not permit mere literalism to defeat a meritorious patent than Auto Vacuum Freezer Co. v. William A. Sexton Co., 239 Fed. 898, in which Judge Coxe recently said:

"But it is also true that when the patentee has produced a structure which inaugurates a new industry and at once becomes popular, and therefore of great value, the court should be zealous so to construe the claims as to give validity to what it believes to be a meritorious invention. The complainant had built up a large and flourishing business under its patent, when the defendant, with knowledge of the patent and the popularity of the complainant's freezer, began its infringement by copying the patented device even to minute details. There can be little doubt that the defendant, with full knowledge of the McCann patent, continued to copy the structure there described and claimed and offered it to the public as a patented freezer. In such circumstances the rule laid down in the cases above cited is relaxed to the extent of giving the patentee a range of equivalents sufficiently broad to hold as an infringer one who accomplishes the result by the same or similar means. The doctrine of the cases relied on by the defendant must be read in the light of the authorities, which hold that even an element of a combination may be omitted if the defendant accomplishes the result by substituting equivalent means. If this were not so, claims for combinations could be easily evaded."

And some of the principles which should govern the construction of claims have also been recently stated by Judge Hough in Outlook Envelope Co. et al. v. General Paper Goods Mfg. Co. et al., 239 Fed. 877, C. C. A., decided January 12, 1917.

Now to the prior art: If anybody thought of utilizing (for this handoperated carpet sweeper) C. J. Harvey's (No. 673,603) Fig. 5, with its bung and ring arrangement, he would soon abandon it for Quist and Blanch, because it would be a clumsy affair in this compact device.

The Conover (No. 847,278) model, in evidence, is its own best refutation, as are the models of Baender and Dudley. In Dudley, for instance, the bottom side up arrangement of the dust receptacle, and the necessity of tipping the machine upside down, constitute a convincing tribute to Quist and Blanch's ingenuity; and one need but read the Sturgeon and the Applegate patents to see how far in this regard they were from Quist and Blanch.

The Hatch and Goeser device (No. 980,944) has a fan and motor back of the casing, and the nozzle must be screwed into position, and the nozzle and front casing are in two parts.

The failure in this regard, among others, of Baender, Dudley, and Sturgeon, who devoted themselves especially to pneumatic carpet sweeping devices of this type, is perhaps the best evidence in support of the conclusion that, but for the teaching of Quist and Blanch, the arrangement in defendant's structures would never have been thought of, except, of course, by some one who in turn would have been an inventor.

When an accomplishment is known, it is not difficult to recur to the prior art, and to reconstruct with the knowledge of to-day what no one knew yesterday, and then to add something here and there to remedy the defects which even such a reconstruction exposes; and the trite but none the less sound observation may be repeated that

defendant may always utilize any disclosure or disclosures of the prior art or any combination thereof without fear or favor.

This patent is entitled to fair consideration, and Quist and Blanch would, indeed, fail to reap the full reward for their labors if the claim in issue could be avoided by doing the same thing in substantially the same way, with the same result, by means of a colorable change, which makes one piece out of two.

Plaintiff may have the usual decree and costs. Submit decree on five days' notice.

NATIONAL SWEEPER CO. v. BISSELL CARPET SWEEPER CO.

PATENTS

(District Court, S. D. New York. March 20, 1917.)

328-INVENTION-PNEUMATIC SWEEPER.

The Baender patent, No. 1,138,437, for a pneumatic sweeper held void for lack of invention in view of the prior art.

In Equity. Suit by the National Sweeper Company against the Bissell Carpet Sweeper Company for infringement of letters patent No. 1,138,437, for a pneumatic sweeper, issued to Baender May 4, 1915. On final hearing. Decree for defendant.

C. L. Sturtevant, of Washington, D. C., L. W. Southgate, of Worcester, Mass., and L. S. Bacon, of Washington, D. C., for plaintiff.

Drury W. Cooper, of New York City, and Fred L. Chappell, of Kalamazoo, Mich., for defendant.

MAYER, District Judge. "This invention" Baender states, "relates to a carpet sweeping appliance operating by atmospheric pressure to draw in and gather the dust and 'sweepings' from a carpet while the appliance is moved over its surface. The carpet sweeper of my invention operates on the principle of producing a continuous suction or exhaustion of the air in a closed receptacle sufficiently below the normal pressure of the atmosphere to induce an inflow of air through a slit or nozzle, and thereby draw the dust and sweepings into the receptacle as the appliance is moved over the carpet. The invention embraces the novel construction and combination of a dust receptacle on wheels, suction bellows, and means for operating the bellows in such manner as to produce and maintain a continuous suction at the inlet slit in the receptacle as the same is moved over the surface of the carpet."

Claim 2 is for:

"2. The combination, in a pneumatic cleaner having traction wheels supporting the rear thereof, of a dust receptacle removable from the cleaner and having a horizontal screen device in its upper portion, a suction nozzle supporting the front end of the receptacle, the exit from the nozzle entering the receptacle below the screen device, a suction device above the receptacle, and connecting devices between the wheels and the suction device for operating the latter."

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Claim 4 reads:

"4. In a sweeping appliance, the combination of a dust receptacle, a nozzle communicating therewith and supporting the front end thereof, a suction device over said receptacle and communicating therewith, screening means located between the nozzle and suction device, wheels forming the rear support of said appliance, and operative connections between the wheels and the suction device adapted to operate said device upon the rotation of the wheels."

Concededly every element is old, and, to support the combination, it is urged that invention was required to utilize the so-called "1-2-3 arrangement" in a hand-propelled sweeper, and to so dispose the suction nozzle that it always acts as a support for the front end of the device when in operation on a carpet to be cleaned. The "1-2-3 arrangement" is a brief phrase coined by counsel, and means, in this case, that the flow of the air through the apparatus will be (1) through the suction nozzle, (2) through the screen device, and (3) in and out of the suction device. But that arrangement was old in the art, as witness (a) Fig. 9 of J. J. Harvey's American patent, No. 577,854, dated March 2, 1897, Harvey's English patent being dated January 10, 1893; (b) C. J. Harvey's patent, No. 673,603, dated July 11, 1899; and (c) Kenney's patent, No. 847,947, dated March 19, 1907. Vacuum Cleaner Co. v. American Rotary Valve Co. (D. C.) 227 Fed. 998, 1004. Something might be said about Anders (British) No. 28,087 of 1906-1908, and Dudley's Exhibit D might be discussed with some particularity; but, as "enough is as good as a feast," further elaboration is unneces

sary.

Notwithstanding these prior art references, it is urged that, because they were not utilized in a commercially successful compact handoperated sweeper, Baender somehow evidenced inventive genius. The history of the art as developed in the Vacuum Cleaner Co. Case, supra, in Vacuum Cleaner Co. v. Innovation Electric Co. (D. C.) 234 Fed. 942, affirmed 239 Fed. 543, —— C. C. A. —, and in this and the two companion cases at bar, shows that the art of cleaning by suction or vacuum devices never attained substantial utility until after Kenney's invention, and, for that reason, that the old-fashioned and (for its purposes) efficient Bissell carpet sweeper, with its commercial success of over 30 years, was good enough for day by day domestic needs.

Undoubtedly the Kenney invention gave an impetus to the art, and, presumably, it occurred to Baender, just as it did to Dudley, and later to Sturgeon and Quist, that a cheap hand-propelled device, small and compact, which utilized the suction idea (not now referring to suction or vacuum technically), would go a step further and supply a want that the Bissell carpet sweeper had not filled and that the Kenney patent had created.

The advantage, already old, of having the separator or dustbag as No. 2 in the "1-2-3 arrangement" had been made especially clear in its then most advanced form by the Kenney patent and to an experimenter skilled in the art, the obvious first step was to see what could be done with the "1-2-3 arrangement" in a compact hand-propelled machine. Indeed, the tortuous history of this patent, illuminated by a

file wrapper as voluminous as might be expected of the most complicated device in the mechanical or electrical arts, demonstrates that the "1-2-3 arrangement" was not, as indeed it could not be, the gist of the so-called invention, but that the emphasis was on the distribution of the load. The far from vigorous conclusion of the board. of examiners in chief on an insufficient record was as follows:

"In all of these claims there is defined a special arrangement of the dust box and the suction device, as well as of the supporting and driving wheel and the suction nozzle; the suction device being disposed above the dust box and the suction nozzle being at one end, while the driving wheel (or wheels) is situated at the other end. This arrangement of the parts is compact, and therefore advantageous, and, furthermore, is such as to provide for a distribution of the load between the wheel and the suction nozzle. It required some ingenuity to devise the above-described arrangement of the parts, although it is true that they individually operate in about the same way as the corresponding elements found in the cited patents. The device as covered by the first five claims is new and useful and therefore patentable."

Of course, any one who knew the many devices of the prior art would know that the dirt should be sucked up or blown in at the front end of the device, and any one who knew only the Bissell carpet sweeper (not to speak of other prior art) would know that the proper location. of wheels would facilitate the movement of the machine, and the only problem, if such it may be called, was of the simplest mechanical kind; i. e., to distribute the load between the wheels and the suction nozzle. This Baender accomplished operatively in the patent sense, but most ineffectively, by producing a device which worked only one way and with enough noise to destroy the nerves of even a placid housewife.

If it be assumed that Baender, if called, could show that he had sold 2,000 machines, it does not take the foresight of a prophet to predict that the Baender device in the form of the teaching of his patent would have been short-lived. From the foregoing it will be seen that discussion of infringement, about which so much was argued, becomes unnecessary, and that further testimony as to the controverted Dudley Exhibit (which, if in the prior art, obviously disposes of Baender) need not be taken.

For want of invention, the patent is void, and the bill is dismissed, with costs. Submit decree on five days' notice.