the fact that the molding rolls carried means for removing the sticks thereby simplifying the complicated mechanism of the prior art, Held, to be an improvement patent and not one of pioneer rank.

In passing upon the plaintiff's contention that the patent was a pioneer one the court adopted the test set forth in Westinghouse v. Boyden Power Brake Co., 170 U. S. 537, at pages 561, 562, where the Supreme Court Speaking through Mr. Justice Brown says:

To what liberality of construction these claims are entitled depends upon the character of the invention, and whether it is what is termed in ordinary parlance a "pioneer". This word, although used somewhat loosely, is commonly understood to denote a patent covering a function never before performed, a wholly novel device, or one of such novelty and importance as to mark a distinct step in the progress of the art, as distinguished from a mere improvement or perfection of what has gone before."

Taking this as its criterion coupled with the statement made by the patentee during the prosecution before the Office and in the patent, the court's holding is seemingly proper. As stated by the court, although the argument nade before the Patent Office cannot control or limit the plain language of the allowed claims (Spalding v. Wanamaker 256 Fed. 530-C. C.) yet he cannot claim broadly anything that was rejected by the Office unless finally allowed in the same language (Van Epps v. United Box, Board & Paper Co., 137 Fed. 418-C. C.). Neither can a patentee have his claims construed broadly to cover what had been rejected and cancelled. (Computing Scale Co. v. Automatic Scale Co., 204 Fed. 609, 617; 1907. Mueller Furnace Co. v. American Fur. Equip. Co., 293 Fed. 165-C. C. A. (7), digested in this journal in vol. 6, page 389.)

Infringement.-Same use but different Construction.Lollypop Machine. The defendant's structure differed

from that covered by the patent in suit in not having a molding roll with spaced mold cavities and longitudinal grooves, one opposite each cavity, which was the distinctive feature of the patent as construed by the court. In the operation of defendant's machine each lollypop is made complete in one separate molding operation while those of the plaintiff were connected by fins which must be broken off. Any size of lollypops can be made by the defendant's machine which is not true of the plaintiff's structure. In defendant's machine the molding, which is effected by a vertical die acting as a plunger continues while the stick is being inserted, while in plaintiff's machine the molding rolls are at rest during this insertion. For feeding the sticks the defendant's structure has only one stationary groove through which one stick is fed at a time. These structural differences in the defendant's machine the plaintiff contended fell within the scope of equivalents to which he was entitled Held, not infringing.

The doctrine of equivalents is firmly established and it may be said that every patent is entitled to equivalents. Even a paper patent, that is, one that is never put into practice, has been held to enjoy the privilege of equivalents. (Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U. S. 405; 1908). The range of equivalents to be allowed in each case is determined by the relative position the particular patent occupies in its respective art, a pioneer patent being accorded greater protection and necessarily so, than a mere improvement patent in respect to apparently infringing machines. Underlying this doctrine is the desire to give a patentee sufficient protection for his invention even against structures he may not have contemplated, but which are mere colorable variations of the patented device. In the instant case the court properly held the patent to be one for an improvement in the general field of molding and therefore limited as to its range of equivalents. M. C. R.

VORTEX MFG. CO. et al v. F. N. BURT CO., Limited. District Court W. D. New York. Hazel Dis. J. 297 Fed. 513.

Reissue patent No. 15,381 dated June 13, 1922, to Curtis, the original patent being No. 1,188,048 of June 30, 1915, for blank for paper cups, held valid and infringed.

Facts. Original patent.-Reissue patent.-Defenses. Defendant is sued for infringement of claims 3 to 9 inclusive of the reissue patent. The reissue patent contains nine claims of which claims 1 to 3 are the claims of the original patent. The defendant entered the field in 1918 and thereafter the plaintiffs, learning that the original patent only broadly covered the invention filed application for a reissue thereof. This application matured into reissue patent No. 15,381. The defenses are: invalidity in view of the prior art, non-infringement, invalidity as broader than the original patent, intervening rights, and laches in applying for the reissue.

Prior art.-Effect of large income from licenses. The court found that some of the patents cited as prior art showed certain features of the contested claims to be old but that the prior art furnished no distinct anticipation and that a blank for paper cups such as the Curtis patent claimed is unknown to the prior art. It was also found that plaintiffs' invention was being widely used and that plaintiffs were receiving a large income from licenses. The court ruled that since this wide use and resulting income were not due to extensive advertising or other extraneous causes, such wide use and large income tend to prove that the device is not devoid of merit and that any doubts as to the validity of the claims should be resolved in its favor.

Noninfringement.-Scope of claims.-Different use. The contention that the claims should be narrowly construed in view of the prior art was overruled by the court which found that the Curtis device was a distinct advance and the claims of the Curtis patent were entitled. to a reasonable interpretation which would cover defendant's device. The fact that plaintiff's blank was used to produce a waxed cup for dispensing soda water

whereas defendant's device is not waxed or specially designed for dispensing soda water was held to be of no material importance.

Reissue not broader than original patent.-Weight to be given Patent Office decision. The reissue patent retained the claims of the original patent with the added claims 4 to 9. The Board of Examiners-in-Chief of the Patent Office ruled that the added claims were narrower than the claims of the original patent. The court held that this decision is entitled to great weight and while not conclusive in a district court it is accepted as correct since the defendant has shown no error therein.

Intervening rights.-Delay in applying for reissue. Where the defendant entered the field in 1918 after the Curtis device had been on the market for several years and established an extensive market and while the original Curtis patent was still unquestioned, there is no basis for a claim of intervening rights. The court also held that there was no such unreasonable delay in applying for the reissue as to deprive plaintiffs of their remedy against defendant since plaintiffs had promptly filed an application for a reissue as soon as they learned that the original patent did not afford sufficient protection. Decree for plaintiffs with costs.

COFFIELD v. SUNNY LINE APPLIANCE INC. C. C. A.-6. Donahue Cir. J. 297 F. 609

This was an appeal from the decree of the district court declaring invalid claims 8, 9 and 10 of U. S. patent 1,270,379 to James L. Coffield June 25, 1918 for lack of invention. The appeal involves the validity and if valid the question of infringement by the defendant. The patent relates to the form and arrangement of driving gear for washing machines and to the washing cylinder or clothes receptacle and a typical claim of those in suit is:

8. In a driving gear for washing machines the combination of an oscillating clothes receptacle,

a frame supporting said clothes receptacle, including two side frame members, driving means and a wringer supporting member; said driving means and wringer supporting member being mounted wholly on one of the side frame members and removable as a unit therewith.

The decree of the district court was affirmed.

Invention. Mere transposition of parts. The claims in question involved nothing new over prior art excepting that the gearing was all transferred to and carried by the main standard and this standard with its gearing was made readily removable from the tub. Although this arrangement had had an unusual measure of commercial acceptance and success, it was not considered that the mere transportation of parts, or convenient assembly or removability disclosed invention. Held invalid for lack of invention.

Motion to dismiss not sustained. A motion to dismiss in a patent case cannot be sustained unless the lack of patentability is so palpable that no conceivable evidence could show that fact to be otherwise, though in a sufficiently clear case the court will refuse to hear the necessarily useless proofs and dismiss the bill.

PACKARD MOTOR CAR CO. et al. v. OVERLAND MOTOR CO. (Dis. Ct. N. D. Ill., E. D. Mar. 22, 1914. 297 Fed. 474 Pat. No. 1,103,507, valid and infringed).

Interchangeability held to be invention when more than the mere result of mechanical skill such as might occur to any skilled worker.

Infringement exists when the only differences between the defendant's device and the patented one are in design of construction and measurements.

The Cowles patent for automobile wheel hubs for front. and rear wheels so constructed as to permit an interchange of wheels or the substitution of a spare wheel