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three parts or the construction in a single piece of one formerly made in several parts exhibits no invention. Bundy Mfg. Co. v. Detroit TimeRegister Co., 94 Fed. 524, 538, 36 C. C. A. 375, 389; Mabie v. Haskell, Fed. Cas. No. 8,653; White v. Walbridge (C. C.) 46 Fed. 526. If, on the other hand, the patent be construed to secure the novel device which is described in the specification and claimed in the second claim whereby the blast of air is applied to the liquid within, instead of without the liquid tube, it may be sustained; for there was no such device or application in the prior art, and the evidence is that the same amount of atomizing may be produced with this device with one-half the power required to produce it by the use of the old devices, such as those of Lighthill

, Shurtleff, and Šemple, by means of which the blast was applied on the outside of the liquid tube by driving it across an orifice therein. Patents are contracts between the government and the inventors, and in cases of ambiguous terms or of doubtful validity that construction which sustains and vitalizes should be preferred to that which strikes down and paralyzes them. Reece Button-Hole Machine Co. v. Globe Button-Hole Mach. Co., 10 C. C. A. 194, 198, 61 Fed. 958, 962; Consolidated Fastener Co. v. Columbian Fastener Co. (C. C.) 79 Fed. 795, 798; American Street Car Advertising Co. v. Newton Street Ry. Co. (C. C.) 32 Fed. 732, 736; McSherry Mfg. Co. v. Dowagiac Mfg. Co., 41 C. C. A. 627, 633, 101 Fed. 716, 122.

As the patent in hand is susceptible of two interpretations, one that it is a patent for the construction of a spraying tube in two or three parts instead of in one or two parts and is therefore void for want of invention, and the other that it is for a new and useful mechanica! device whereby the liquid may be more efficiently and economically atomized within than it had theretofore been without the liquid tube and it is therefore valid, the latter interpretation should be preferred to the former. This seems to me to be the natural and rational construction of the patent, also, because it is the only one which secures the improvement in the spraying tube which affects its function. The registering side openings in the air tube and the liquid tube facilitate the atomizing of the liquid and constitute the improvement, while the union or separation of the parts of the spraying tube in no way affects the improvement or the facility of performance of the function of the device.

It is said that the patentee did not describe and claim this function or use of his device in his specification or claims. But he clearly described and claimed his mechanical device which performed this function. He told how to construct and operate it, and no one can make and operate it in the way he described and avoid its performance of this useful function better than any preceding device, and the fact that the defendants have adopted this device in preference to all which preceded it is a demonstration of this fact. The complainant claimed this spraying tube with these side openings substantially as described, and it was described in the specification with a hollow air tube flattened on one side inserted in the liquid tube, and provided with a side opening into the liquid tube, which registered with the opening in the latter into the glass globe, so that the application of the air blast could not failto atomize the liquid within the liquid tube. The words "substantially as described” refer back to the specification, and the specification and the claim must always be read together to ascertain the actual invention the patentee made and to protect him in its use. Seymour v. Osborne, 11 Wall. 516, 547, 20 L. Ed. 33. If the spraying tube is made as the patentee describes it in his specification and claims it in his second claim, it becomes a device to atomize the liquid within the liquid tube by means of the registering side openings there described and claimed; and when one has plainly described and claimed his mechanical device and has secured a patent for it he has the right to every use to which it can be applied, to every way in which it can be made to perform its function, whether or not he described, claimed, or was aware of these uses when he claimed and secured his monopoly. Roberts v. Ryer, 91 C. S. 150, 157, 23 L. Ed. 267; Miller v. Manufacturing Co., 151 U. S. 186, 201, 14 Sup. Ct. 310, 38 L. Ed. 121; Goshen Sweeper Co. v. Bissell Carpet-Sweeper Co., 72 Fed. 67, 19 C. C. A. 13; Frederick R.. Stearns & Co. v. Russell, 85 Fed. 218, 226, 29 C. C. A. 121, 129; Manufacturing Co. v. Neal (C. C.) 90 Fed. 725; Tire Co. v. Lozier, 90 Fed. 732, 744, 33 C. C. A. 255, 268. These rules of law have forced my mind to the conclusion that the true construction of the second claim of this patent is that it secures the mechanical device with the side openings there claimed and described in the specification whereby the liquid is atomized within the liquid tube by means of the registering openings in the air tube and the liquid tube. This device was novel. The patentee was the first to conceive, to describe, or to use it. It was useful, so useful that the efficiency of the spraying tube was doubled thereby, so useful that the defendants preferred to appropriate it to using any of the prior devices whereby the liquid was atomized without the tube, and it was in my opinion patentable.

The only improvement in this patented device which affects the function, the principle, the mode of operation of the spraying tube was the side opening from the air tube into the liquid tube registering with the side opening of the liquid tube into the globe. This improvement the defendants have appropriated, and in my opinion they have thereby infringed the complainant's patent. It is true that they have made their spraying tube in two parts, while the tube described by the complainant is composed of three parts. But the union or separation of the parts neither conditions nor affects the invented improvement, which is conditioned alone by the location of the registering side openings, and which is the same in construction and in effect in the spraying tube of the defendants and in that of the complainant. No broad signification of the doctrine of mechanical equivalents is required to bring this appropriation within its meaning. The defendants have appropriated the very device and improvement which the patentee described and claimed, the device of the registering side openings whereby the air blast was conducted through the side opening in the air tube into the liquid tube at a point opposite the side opening in the liquid tube whereby it atomized the liquid within the liquid tube instead of without it. The second claim of this patent is not, in my opinion, a claim for the combination of the various parts, tubes, or holes, which constitute the spraying tube of the patentee, nor is the form of the tube nor the number of its parts the distinguishing characteristic of the invention here patented. The invention claimed and secured is the mechanical device whereby the liquid is atomized by means of the registering side openings within the liquid tube, and the defendants may not lawfully escape their infringement of this patented invention by the form of the tube or by the separation or union of its parts which they use while they appropriate as they do the principle, the mode of operation, and the identical means described by the patentee whereby they accomplish the improved result which he attained. Columbus Watch Co. v. Robbins, 64 Fed. 384, 397, 12 C. C. A. 174, 187; New Departure Bell Co. v. Bevin Bros. Mfg. Co. (C. C.) 64 Fed. 859.

Claims 2 and 3 of letters patent No. 620,895 are for the combination of an atomizer, a chamber for the storage of vaporized medicaments under pressure, a tube or nozzle leading therefrom, and means of controlling the passage from the chamber, so that the vapor can be stored and delivered for extensive or rapid use. : The absence from a combination of a single essential element of the patented combination is fatal to it as an anticipation and relieves it of infringement. In my opinion the patents pleaded as anticipations are not such for the following reasons: The patent to Emery lacks the essential elements, an atomizer and a chamber where the vapor may be stored. Emery's chamber for compressed air has no valve or other device in the tube which conducts the air to the chamber whereby it can be kept from returning, and it has no device whereby medicaments may be atomized and then introduced into the chamber or stored therein.

The combination shown in the patent to Kennedy fails to anticipate because it lacks the essential elements, an atomizer and means for controlling the passages from the chambers or bottles provided for atomized vapor, so that the vapor can be stored or applied under pressure. The tubes which form the inlets to the bottles which contain the liquid are straight pipes whose lower ends extend below the surface of the liquid, and the only effect of applying compressed air to them is to create bubbles in the water. They neither constitute nor contain any atomizing device. The valve plugs to these bottles are so constructed that each opens and closes both the inlet and the outlet pipe of its bottle at the same time, so that the combination contains no device either for atomizing liquids or for storing vaporized medicaments under pressure.

Patent No. 549,822, to Robertson, fails to anticipate because it lacks any means of controlling the passage of the vapor from the chambers where it is manufactured so that it may be stored and delivered under pressure. There is no valve or other device whereby the outlets from the chambers may be closed so that they do not constitute storage chambers, but are manufacturing chambers only.

The rejection of claim 17 of the complainant's application by the board of examiners of the Patent Office did not estop the patentee from sustaining his patent for the combination described in claims 2 and 3, although it was the same combination described in claim.17, because he did not acquiesce in that rejection, but insisted upon his claim and secured a patent for his combination through the allowance by the Patent Office of claims 2 and 3. It is only when the inventor acquiesces in the rejection of his claim for a patent for his invention that he is estopped by the rejection. National Hollow Brake-Beam Co. v. Interchangeable Brake-Beam Co., 45 E. C. A. 544, 565, 106 Fed. 693, 714.

The defendants have adopted a combination which contains all the mechanical elements of that of the complainant and which accomplishes the same result by substantially the same mechanical means. For these reasons, I am unable to concur in the opinion of the majority or in the judgment of affirmance in this case.



(Circuit Court of Appeals, Second Circuit. January 30, 1907.)

No. 223,


Where a patented device has won a position of unchallenged supremacy in the commercial world, a court should endeavor to sustain the patent rather than defeat it.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Patents, $8


The Grant patent, No. 554,675, for a rubber tired wheel was not anticipated and discloses invention. While the elements entering into the combination are old, such combination operates to produce a new result, or an old result in a inanner wbich is a vast improvement over anything in the prior art. The tipping or rocking of the tire when subjected to lateral pressure is a function inherent in the combination, and the specification is so clear and explicit that no intelligent mechanic could fol

low it without securing such result. Also held infringed, Appeal from the Circuit Court of the United States for the Southern District of New York,

For opinion below, see 147 Fed. 739.

The decree of the Circuit Court for the Southern District of New York sustained letters patent No. 554,675, issued February 18, 1896, to Arthur W. Grant, for an improvement in rubber-tired wheels. The patent has been the subject of extensive and protracted litigation. It has been sustained by Judge Thomas, Rubber Tire Wheel Co. v. Columbia Pneumatic Wagon Wheel Co. (C. C.) 91 Fed. 978, by Judge Wing (unreported)1, and by Judge Newman, Consolidated Rubber Tire Co. v. Finley Rubber Tire Co. (C. C.) 116 Fed. 629. The patent has been held invalid by the Circuit Court of Appeals for the Sixth Circuit, Goodyear Tire & Rubber Co. v. Rubber Tire Wheel Co., 116 Fed. 363, 53 C. C. A. 583; Rubber Tire Wheel Co. v. Victor Rubber Tire Co., 123 Fed. 85, 59 C. C. A. 215, and by Judge Anderson, following the decision of the Circuit Court of Appeals. A petition for a writ of certiorari to review the decision of the Circuit Court of Appeals for the Sixth Circuit was denied by the Supreme Court, Rubber Tire Wheel Co, y. Goodyear Tire & Rubber Co., 187 U. S. 641, 23 Sup.

1 Reversed in 116 Fed. 363, 53 C. C. A. 583.

Ct. 842, 47 L. Ed. 345. The patent was indirectly involved in the decision of Rubber Tire Wheel Co. P. Milwaukee Rubber Works Co. (C. C.) 142 Fed. 531. The decision of Judge Platt in the Circuit Court is reported in Consolidated Rubber Tire Co. v. Firestone Tire & Rubber Co. (C. C.) 147 Fed. 739.

Chas. C. Linthicum, Charles K. Offield, and Phillip B. Adams, for appellant.

Border Bowman, Thos. W. Bakewell, Charles W. Stapleton, and Paul A. Staley, for appellee.

Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.

COXE, Circuit Judge. The literature of the Grant patent, in so far as it relates to the situation before the commencement of the present action, will be found in the prior adjudications. The arguments for and against the patent will be found admirably stated by Judge Thomas in the Columbia Case and by Judge Lurton in the Goodyear Case, respectively. To this discussion little can be added on either side. We shall endeavor, therefore, to confine our attention mainly to the new facts and features which have been added to or developed from the records in the earlier cases.

Grant's claims cover combinations composed of elements which, when considered separately, were all old, but which were combined by him to form a structure, which, for the first time, placed in the hands of vehicle owners a perfect rubber tire. From the crudities, oddities, total failures and partial successes which had preceded him he constructed a tire which became popular almost from its inception. This was not the result of chance or the haphazard selection of parts; his success could only have been achieved by a careful study of the scientific and mechanical problems necessary to overcome the defects which rendered the then existing tires ineffective and useless. problems demanded the exercise of faculties far above those possessed by the skilled mechanic. Few patents have received such immediate and well-nigh unanimous recognition. For years carriage manufacturers had been making strenuous efforts in this country and in Europe to secure a practical rubber tire. The moment Grant's structure appeared it was adopted by all the large manufacturers and to-day it is no exaggeration to say that no successful rubber tire can be made without embodying the distinguishing features of the Grant patent. Persistent efforts have been made to evade it but without success. The tire described and claimed in the Grant patent is the standard rubber tire of to-day. This popularity may be accounted for in part by the financial ability of the owners of the patent to promote sales, but it was a most inconspicuous part. The hard-headed men of trade do not place themselves in a position where they must accept the alternative of an infringement suit or the payment of license fees for the use of an article, when an equally good article may be had for nothing. It should be and is the desire of the court in approaching the consideration of a patent for a structure which has thus won a position of unchallenged supremacy in the commercial world, to endeavor to sustain rather than defeat the claims. The

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