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consisting, one of a double hopper misthread and the other of a real misthread, and not upon the occurrence of a single sequence consisting of a real misthread alone.

Thus far it is clear, both as to specification and claims, that the inventor has not disclosed an intention of providing means for loom stoppage upon the occurrence of a sequence constituting a real misthread alone. It remains, however, for us to consider claim 6. This claim reads:

In a loom of the character described, the combination of means for detecting the presence or absence of filling in the shed, filling replenishing controlling means adapted to be actuated when filling is absent on a detecting beat, and means for stopping the loom when the filling is absent on a detecting beat following replenishment, present on the next detecting beat, and absent on the next detecting beat.

It is conceded that the claim purports to state that the loom will stop on the occurrence of the following sequence: absence (replenishment), absence (replenishment), presence, absence; that it calls for mechanism for loom stoppage on the occurrence of a single sequence composed of a hopper misthread and a real misthread; and that the specification discloses no means by which the loom will stop upon that sequence.

The plaintiff desires to amend the claim by striking out the word "following," and inserting in its stead the word "causing," so that the portion of the claim material for our consideration would read:

Means for stopping the loom when the filling is absent on a detecting beat causing replenishment, present on the next detecting beat, and absent on the next detecting beat.

It is thus seen that the unamended claim calls for means for loom stoppage upon the sequence of a hopper misthread and a real misthread, and that the specification does not provide means for loom stoppage, either upon the sequence of a hopper misthread and a real misthread, or upon that of a real misthread alone.

While it is true that the specification does not disclose means for loom stoppage upon a real misthread alone, it is equally true that amended claim 6 does not call for means which will function on such a misthread alone, but for means that will function on a real misthread, even though they will also function upon a double hopper misthread, and that, to this extent, the intention of the inventor as to this feature of his invention is manifest: (1) because it is not covered by the other claims of the patent; and (2) because claim 6, as originally drawn, is wholly inoperative and could have been intended to cover no other feature of the invention. In other words, although the means disclosed in the specification function in two ways, the inventor is not precluded from having a claim for those means based

upon their functioning in one of the ways disclosed, and is entitled to have it, inasmuch as his intention to claim it is disclosed in the patent.

Whether a device disclosing means that would operate on a real misthread alone would infringe claim 6 as amended is of little consequence in this proceeding, as we think the patent clearly discloses an intention on the part of the inventor to claim means that will function on a real misthread and produce loom stoppage, although they may also function on a double hopper misthread, and that the use in the claim of the word " following," instead of "causing," was, as found by the court below, due to "inadvertence, accident, or mistake" on the part of the solicitor.

We do not regard the rule-that a reissue which broadens a patent cannot be had after two years from the granting of the patentas applicable to the facts in this case: (1) because amended claim 6 is not broader than original claim 6, as each calls for a single sequence of misthreads; and (2) because amended claim 6, as understood, does not introduce a distinct invention from that shown in the patent, but covers means disclosed in the specification which the inventor intended to claim in original claim 6.

As to the defendants' contention that it was the duty of the plaintiff, immediately after purchasing the patent, to have caused an examination to be made for the purpose of ascertaining whether claim 6 covered the scope of the intended invention and the detection of any error that might exist therein, we think it sufficient to say that the evidence discloses that, shortly after the plaintiff purchased the patent, it caused its experts to make an examination of it with this object in view, and that their examination failed to disclose the defects now complained of, and that they were not discovered until February, 1915, when the plaintiff's expert, on examining a device which the defendants had put upon the market, discovered that it embodied means causing loom stoppage on a real misthread, and, knowing that this was one of the fundaniental features of the patent in question, again made an examination of the patent and discovered the defects here complained of. This evidence, instead of tending to show a failure on the plaintiff's part to take reasonable steps for the ascertainment of any defects that might exist in the patent, discloses that it took such steps as it, in the exercise of reasonable care and prudence, was called upon to take, and that the failure to discover the defect in claim 6 was due to no fault on its part.

Furthermore, we do not think that the defendants are in a position to assert rights due to action taken by them in reliance upon the plaintiff's conduct in failing at an earlier date to ascertain the defects

in its patent and apply for a reissue. The defendants do not stand in the shoes of a person acting in good faith in reliance on plaintiff's conduct; for defendant Northrop was the inventor of the patent, and defendant Draper the party to whom it was issued, and the former, by reason of his knowledge of the scope of the invention, would be far more reprehensible for failure to ascertain defects in the claim than would be the plaintiff. Besides this, in their answer, the defendants admit that in 1913 their attention was

called to the fact that claim 6 was not predicable upon the structure illustrated and described in the specification of the patent,

which information was apparently acquired prior to their taking action in the way of producing and putting upon the market devices providing for loom stoppage upon a real misthread. The defendants, therefore, in 1913, and probably at an earlier date, knew that claim 6 was defective, in that it did not state what it was intended to claim. (2) As we regard the remaining questions raised on this appeal rightly determined in the court below, it is not our purpose to again review any of them, except the one as to whether the defendant Northrop is under an obligation to the plaintiff, express or implied, to make application for a reissue. The assignment was to Draper, his heirs, executors, administrators, and assigns, and was of the invention disclosed in the application, the patent to be issued thereon, and any right to a reissue. If Northrop had not inserted an express covenant for further assurance in the assignment, it cannot be doubted that a covenant would be implied to this extent, at least; that Northrop would make application for reissue in case the patent manifested an intention to claim a feature disclosed therein, but which it failed to state accurately in a claim. The implied covenant would be for the benefit of the grant, and the grant being to Draper and his assigns, would inure to the plaintiff. The contention is made that the express covenant is a restricted covenant; that is, that it confers rights upon Draper less than an implied covenant would confer, and that, because of this, no covenant can be implied in favor of the grant and, being personal to Draper, will not inure to the plaintiff. But we do not regard the express covenant as of less scope than the one that would be implied. It imposes, rather. a greater obligation, in that it requires Northrop to apply for a reissue if Draper deems it necessary, and under circumstances to which the implied covenant would not extend. The rights conferred by the express covenant beyond what would be implied, being personal to Draper, would not run with the grant; but, in so far as the rights conferred are only what would be contained in the implied covenant, it is evident it was intended they should inure to an assignee; otherwise, the full enjoyment of the

grant could not be had by Draper's assigns, which it was expressly stipulated they should possess.

It having been determined that the plaintiff is entitled to a reissue for the purpose of correcting claim 6, and it being conceded by defendants that the plaintiff is entitled to the corrections desired in the specification (line 86, page 3) and in claim 8 (lines 103, 104, page 4), the decree of the district court must be affirmed.

The decree of the district court is affirmed, with costs to the appellee.

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

EDWARD G. BUDD MFG. Co. v. ENGLAND MFG. Co.

Decided February 16, 1917.

239 O. G., 1213; 240 Fed. Rep., 415.

1. PATENTS-INVENTION-AUTOMOBILE-DOOR.

The England patent, No. 1,008,805, for a door for automobiles, Held void for lack of invention.

2. SAME-SAME--PRODUCT MADE BY NEW METHOD.

A product, the making of which by manual operations involved only the ordinary skill of the artisan, is not patentable because invention was involved in making it by machinery.

APPEAL from the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, judge.

Mr. Wilber Owen (Mr. Samuel E. Darby and Messrs. Owen, Owen & Crampton of counsel) for the appellant.

Mr. R. A. Parker for the appellee.

Before KNAPPEN and DENISON, Circuit Judges, and MCCALL, District Judge.

DENISON, Cir. J.:

In the court below the England Company, as plaintiff, secured the usual interlocutory decree for injunction and accounting, based upon Patent No. 1,008,805, issued November 14, 1911, to Fred England, for a "Door for automobiles and other vehicles." The defendant below, the Budd Company, by this appeal presents questions of validity and infringement.

(1) The device is very simple. It sufficiently appears from Fig. 2 of the drawings and claim 1 of the patent reproduced below. Claims 2 and 3, while more limited in form, present the same issue of validity as does claim 1. The "metallic panel" is 4, the "flange disposed at an angle " is 6, the "integral molding" is 5, and, as doubled

back upon itself before it is developed into the flange 6, it constitutes the "projecting portion outside the flange."

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1. A metallic panel for vehicle bodies, having an edge fashioned with a flange disposed at an angle to the surface of the body of the panel, a projecting portion outside the said flange and the body of the panel, and a molding integral with the metal adjacent the said projecting portion.

To have a metal panel or cover drawn or developed into both a right-angled flange and a flange projecting in approximately the plane of the panel, so as to cover the crack or opening otherwise left on closing the cover, is the commonest expedient; it is seen, for example, in the ordinary covered tin pail. The same thought had been applied to metal doors. Smith, Patent No. 522,861, in a fireproof shutter which had a metal panel covering a wooden door, employed precisely the device of England's claim, excepting for the beading or molding; and Tyra, Patent No. 838,672, showed a hollow metal door with the same panel, right-angled flange and projecting flange. Even for automobile-doors the general thought was not new. Smith, by Patent No. 813,460, disclosed an automobiledoor made of wood and covered with a metal panel, the bottom closure taking the form shown in Fig. 2 and the side closure taking the form shown in Fig. 3, here reproduced.

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