permissible, the court will adopt that which will give to the inventor the protection to which, under the law, he is entitled. Malignani v. Jasper Marsh Consol. Electric Lamp Co., (Č. C. Mass. 1910) 180 Fed. 442.

The presumption is that an inventor intends to protect his invention broadly, and consequently the scope of a claim should not be restricted beyond the ordinary meaning of the words, save for the purpose of saving it; and in reading the claim for the purpose of construing it, heed must not only be paid to the specification proper and to the drawings, but also to the other claims of the patent. Andrews . Nilson, (1906) 27 App. Cas. (D. C.) 451.

A patent for a process of making mica insulating sheets by combining "laminated elementary scales" of mica should not be construed to require that the scales must be split down to the last possibility of splitting, but only so far as is commercially practicable, especially where it is plain, from the description of the process in the specification, that such was the inventor's meaning. Mica Insulator Co. v. Commercial Mica Co., (C. C. A. 7th Cir. 1908) 166 Fed. 440, 92 C. C. A. 292, reversing (N. D. III. 1907) 157 Fed. 90.

A statement in a patent for a process for bleaching nuts that acid is added to the solution coincidentally with the dipping of the nuts therein should be given a reasonable construction, and does not require that the acid should be added at the very instant of the dipping, but a successive dipping of different crates of nuts after the acid has been added and so long as it remains effective for the purpose used is fairly within the patented process. Fullerton Walnut Growers' Ass'n v. Anderson-Barngrover Mfg. Co., (C. C. A. 9th Cir. 1908) 166 Fed. 443, 92 C. C. A. 295.

Courts will go far to save a patent for a meritorious invention, but they cannot reconstruct claims and disregard their very terms, and add or substitute material words not found therein, but necessary if the true invention is to be covered. Sharp v. Bellinger, (N. D. N. Y. 1909) 168 Fed. 295.

Patents granted under the laws of the United States pursuant to Const., art. 1, sec. 8, are grants made in consideration of discoveries which " promote the progress of science and useful arts," and are to be construed liberally so as to effect their real intent. Bossert Electric Constr. Co. v. Pratt Chuck Co., (C. C. A. 2d Cir. 1910) 179 Fed. 385, 103 C. C. A. 45.

The construction placed on the patent statutes by the courts is favorable toward inventors having meritorious inventions, and they do not put on them harsh

or technical interpretations, and are inclined to resolve all doubts as to whether more than one invention is embraced in one patent in favor of the patentee. In re Briede, (1906) 27 App. Cas. (D. C.) 298.

Such narrow limitations should not be imposed on the patent as will enable subsequent inventors to use the invention with impunity by appropriating the essential element of the devise, i. e., the indispensable, functioning feature of it. Société Anonyme des Anciens Etablissements Cail r. U. S., (1907) 43 Ct. Cl. 25.

Strict construction. While the fact that a patented device has never gone into use does not defeat the patent, it warrants an inference against utility, the converse of that which arises from successful commercial use, and may justify a narrow construction of the patent. National Malleable Castings Co. t. Buckeye Malleable Iron, etc., Co., (C. C. A. 6th Cir. 1909) 171 Fed. 847, 96 C. C. A. 515.

While the fact that the device of a patent has never been put in use does not affect the validity of the patent, it is ground for giving it strict construction. Westinghouse Electric, etc., Co. v. Toledo, etc., R. Co., (C. C. A. 6th Cir. 1909) 172 Fed. 371, 97 C. C. A. 69.

Technical construction.- Courts should not be astute to avoid inventions. Davoll c. Brown, (1845) 1 Woodb. & M. 53, 7 Fed. Cas. No. 3,662; Brush Electric Co. v. Electric Imp. Co., (N. D. Cal. 1892) 1904) 128 Fed. 55.

Mere rigid technicalities are to be set aside unless there is a clear, legal necessity for sustaining them." Hamilton v. Ives, (1873) 6 Fish. Pat. Cas. 244, 11 Fed. Cas. No. 5,982; Brush Electric Co. t. Electric Imp. Co., (N. D. Cal. 1892) 52 Fed. 965.

In the construction of a generic process patent, every phenomenon observed during operation and every minute detail described in illustrating the process in the specification is not to be read into the claims as a limitation, to avoid a charge of infringement. Electric Smelting, etc., Co. v. Pittsburg Reduction Co., (C. C. A. 2d Cir. 1903) 125 Fed. 926, 60 C. C. A. 636, modifying (W. D. N. Y. 1901) 111 Fed. 742.

Undoubtedly a patent must be taken with all its limitations, and resort may be had to its course through the patent office to determine them; neither can rejected features be reasserted, nor a broad construction be insisted on, where a narrow one has been accepted by amendment to meet the objections of the examiner. But, subject to this, the patentee is entitled to have his patent taken as it reads, with due regard to the inventive idea embodied in it, without having it treated in such a way as virtually to destroy it. Eck v. Kutz, (E. D. Pa. 1904) 132 Fed. 758.

The claims of a patent are to be fairly construed in the light of the specification and drawings, so as to cover, if possible, the invention, and thus save it, especially if it be a meritorious one. Mossberg t. Nutter, (C. C. A. 1st Cir. 1905) 135 Fed. 95, 68 C. C. A. 257, affirming (C. C. Mass. 1904) 128 Fea. 55.

A patent for a four-part structure operating in a certain way cannot be construed to cover a three-part structure, in which one of said three parts is a combination of two of the parts of the patented structure, where an entirely dif ferent mode of operation is required, and where, when it is attempted to operate the patented device in the same way, it is wholly inoperative. Ajax Forge Co. t. Morden Frog, etc., Works, (N. D. Ill. 1907) 156 Fed. 591.

While the courts lean toward reading into the claims of a patent such limitations as will save the real invention as disclosed by the specification and the prior art, where claims employ broad and nebulous terms for the apparent purpose of enabling the patentee to monopolize an important industry, the claims will not

be

narrowed beyond the boundaries clearly warranted by the specification. Beckwith t. Malleable Iron Range Co., (E. D. Wis. 1910) 174 Fed. 1001.

Reference to specifications. Where terms which are not technical terms of the art are used in the claims of a patent to differentiate between different tubes in the patented structure, the specification may be referred to for the purpose of ascertaining their meaning as so used. Fowler, etc., Mfg. Co. v. National Radiator Co., (C. C. A. 3d Cir. 1909) 172 Fed. 661, 97 C. C. A. 187.

Reference to rejected claims. A patent must be read and construed with reference to the claims rejected and cannot be so construed as to cover what was rejected by the patent office. Williams Patent Crusher, etc., Co. t. Pennsylvania Crusher Co., (E. D. Pa. 1910) 176 Fed. 576.

Reference to prior art. The claims of a patent finally allowed and accepted by the patentee must be read in connection with the claims set forth in the original application and with the prior art, and cannot be construed to cover what was rejected or disclosed by prior devices. Victor Talking Mach. Co. v. American Graphophone Co., (S. D. N. Y. 1906)

145 Fed. 189.

A patent must be read and construed with reference to the prior art and cannot be so construed as to cover what was

disclosed by the prior art. Williams Patent Crusher, etc., Co. v. Pennsylvania Crusher Co., (E. D. Pa. 1910) 176 Fed. 576.

Where the language employed in a patent is indefinite or ambiguous it should be read in the light of the reader's

knowledge of the prior art. Malignani t. Jasper Marsh Consol. Electric Lamp Co., (C. C. Mass 1910) 180 Fed. 442.

Error in reference to prior art.- If a patentee in his specification describes in appropriate language a real invention and properly sets forth his claim to that invention, he is not to be deprived of it merely because he has inadvertently erred in his reference to the prior art. Babcock, etc., Co. v. North American Dredging Co., (C. C. N. J. 1907) 151 Fed. 265.

Strict construction as to mere improvements. If validity is given to a patent only by an improvement of a narrow character, just sufficient to cross the line which divides mechanical improvement from patentable invention, the inventor will be protected only as to such improvement as is specifically described, and is but little aided by the doctrine of "equivalents," which term has a variable meaning and is measured by the character of the invention. Rich t. Baldwin, (C. C. A. 6th Cir. 1904) 133 Fed. 920, 66 C. C. A. 464.

A patent for mere improvement on prior devices must be limited to the precise devices and combinations shown and claimed. Cumming v. Baker, (C. C. A. 9th Cir. 1906) 144 Fed. 395, 75 C. C. A. 373.

When the invention of a patent is not a pioneer invention, the inventor is held to a rigid construction of his claims, and is not entitled to any considerable range of equivalents; and when, in a patent for a mere improvement, which in view of the prior art is extremely narrow, he has limited his claims by specific words to a specific form of device or element, he is bound thereby. Sharp v. Bellinger; (N. D. N. Y. 1909) 168 Fed. 295.

The Schmertz reissue patent, No. 12,443 (original No. 791,216), for an apparatus and process for manufacturing wire glass, is for an improvement on the so-called

European" or two-sheet method of making wire glass, and consists in the simultaneity of laying the wire and rolling the first sheet and the close and progressive following of the second roll casting the second sheet on top thereof. This quickening of the whole operation produces a better welding of the two sheets and an improved result, but the claims being for an improvement only in the respect stated, must be limited to the simultaneity of the particular method and the particular mechanical means for practicing it described in the specifications, and cannot be broadened to include other methods or means for accomplishing the same result. As so construed and limited, held not infringed. Highland Glass Co. v. Schmertz Wire Glass Co., (C. C. A. 3d Cir. 1910) 178 Fed. 944, 102 C. C. A. 316.

Construction in connection with other patents or applications.-A second patent

applied for by and granted to a patentee for a device for the same purpose, but different in form from one shown in an earlier patent, may be taken into consideration in construing the earlier patent, as affording a presumption that it did not broadly cover other forms than the one described. D'Arcy r. Staples, etc., Co., (C. C. A. 6th Cir. 1908) 161 Fed. 733, 88 C. C. A. 606.

An invention covered by a patent is not necessarily to be cut down by the fact that, while the application for it was pending in the patent office, other applications were brought forward from time to time by the same inventor, representing different developments of the same idea; all being allowed and issued the same day. Manhattan Gen. Constr. Co. v. Helios-Upton Co., (E. D. Pa. 1905) 135 Fed. 785.

Improvement on prior device of same inventor. A patent expressly for an improvement on the device of a prior patent to the same inventor should be read in connection with the first, and will not be declared void because, standing alone, it does not describe an operative apparatus. Los Alamitos Sugar Co. v. Carroll, (C. C. A. 9th Cir. 1909) 173 Fed. 280, 97 C. C. A. 446.

Invention not put to practical use. The rule applied that in a suit for infringement of a patent for an alleged invention of which no practical use has ever been made, the patent is not entitled to the same breadth of construction which might be warranted by its proved usefulness. Boston Woven Hose, etc., Co. v. Pennsylvania Rubber Co., (C. C. A. 1st Cir. 1908) 164 Fed. 557, 90 C. C. A. 84, affirming (C. C. Mass. 1907) 156 Fed. 787.

Nonuser as affecting construction.While the validity of a patent is not affected by its nonuser, such fact may have a bearing on its construction in requiring its limitation to the device plainly shown and distinctly described. Kestner Evaporator Co. v. American Evaporator Co., (E. D. Pa. 1910) 182 Fed. 844.

Novelty and utility as affecting construction. Whether an invention be a pioneer, or, being of small importance, is ranked at the foot of the line, the rule is that it shall be judged on its own merits; that is to say, according to the advance it has made in novelty and utility beyond the former art. Vrooman v. Penhollow, (C. C. A. 6th Cir. 1910) 179 Fed. 296, 102 C. C. A. 484.

Construction to avoid interference.— Where a patentee limited his claims by the use of the word "corrugated" to describe the form of a part, he cannot be heard to say that it should be given a broader construction as polygonal' "noncircular," when there was pending in the patent office at the same time another application with which he would have

or

been thrown into interference if he had used the broader term. Ajax Forge Co. v. Morden Frog, etc., Works, (N. D. Ill. 1907) 156 Fed. 594.

Claims affording basis for separate patents. A patent should not be held invalid because each of its claims might have been made the basis of a separate application, where all relate to improvements in a single instrument and may in a sense be considered elements of one construction. Hohmann, etc., Mfg. Co. v. Charles J. Tagliabue Mfg. Co., (E. D. N. Y. 1909) 175 Fed. 87.

Particular words construed. The term "Chamotte," as used in the arts, has a broader meaning technically than ordinary fire brick crushed or fire clay, and means, when used to describe an element in a patented combination, a clay which has been burned to an extent which deprives it of further shrinkage on being again subjected to heat. Panzl v. Battle Island Paper, etc., Co., (N. D. N. Y. 1904) 132 Fed. 607.

The word "simultaneously," used in a patent to describe the operation of the parts of a machine which in fact operate progressively to complete the article produced, must be construed to mean that the parts operate unitedly, harmoniously, and in concord, and not at the same instant of time. E. J. Manville Mach. Co. v. Excelsior Needle Co., (C. C. A. 2d Cir. 1909) 167 Fed. 538, 93 C. C. A. 216, affirming (C. C. Conn. 1908) 162 Fed. 486. The word convex," used in the claims of a patent as applied to a surface, is to be given its generally accepted meaning, as indicating a surface of a more or less spherical form rather than cylindrical. Beckwith v. Malleable Iron Range Co., (E. D. Wis. 1910) 174 Fed. 1001.

The term "bell," used in a patent for a graphophone, means the amplifying horn used in sound-reproducing machinVictor Talking Mach. Co. v. Duplex Phonograph Co., (C. C. A. 6th Cir. 1910) 182 Fed. 822, 105 C. C. A. 254.

ery.

IV. GRANT TO PATENTEE

Designating patentee. A patentee must be named or described in the patent, but the patent will not be rendered void by an error in this if the patentee is described with sufficient accuracy to iden tify him. Bignall . Harvey, (N. D. N Y. 1880) 4 Fed. 334; Northwestern Fire Extinguisher Co. v. Philadelphia Fire Extinguisher Co., (1874) 1 B. & A. Pat. Cas. 177, 18 Fed. Cas. No. 10,337.

"His heirs or assigns."- The words in the statute, "the patentee, his heirs, or asigns," whether construed according to the rules of grammar, or to the evident intent of Congress, mean "the patentee, or his heirs or assigns." They comprehend the legal representatives, assignees in law and assignees in fact, and the

phraseology raises no limitation in the sense of the strict common-law rule applied to realty. De La Vergne Refrigerating Mach. Co. v. Featherstone, (1893) 147 U. S. 209, 13 S. Ct. 283, 37 U. S. (L. ed.) 138.

Rights of personal representatives.— The words "his heirs and assigns " do not have the force of vesting the title to a patent in the heirs as against the executor or administrator of a deceased patentee. Shaw Relief Valve Co. v. New Bedford, (C. C. Mass. 1884) 19 Fed. 753; May t. Logan County, (N. D. Ohio 1887) 30 Fed. 250.

A patent-right, like any other personal property, vests in the executors and administrators and not the heirs of the patentee if he has died without having assigned it. Bradley v. Dull, (W. D. Pa. 1884) 19 Fed. 913.

Right to vend - Fixing retail price.— In Bauer v. O'Donnell, (1913) 229 U. S. 1, 33 S. Ct. 615, 57 U. S. (L. ed.) 1041, Ann. Cas. 1915A 150, 50 L. R. A. (N. S.) 1185, it was held that a patentee could not by notice limit the price at which future retail sales of the patented article might be made, such article being in the hands of a retailer by purchase from a jobber, who had paid to the agent of the patentee the full price asked for the article sold. The court said: "The real question is whether in the exclusive right secured by statute to 'vend' a patented article there is included the right, by notice, to dictate the price at which subsequent sales of the article may be made. The patentee relies solely upon the notice quoted to control future prices in the resale by a purchaser of an article said to be of great utility and highly desirable for general use. The appellee and the jobbers from whom he purchased were neither the agents nor the licensees of the patentee. They had the title to, and the right to sell, the article purchased without accounting for the proceeds to the patentee and without making any further payment than had already been made in the purchase from the agent of the patentee. Upon such facts as are now presented we think the right to vend secured in the patent statute is not distinguishable from the right of vending given in the Copyright Act. In both instances it was the intention of Congress to secure an exclusive right to sell, and there is no grant of a privilege to keep up prices and prevent competition by notices restricting the price at which the article may be resold. The right to vend conferred by the patent law has been exercised, and the added restriction is beyond the protection and purpose of the Act. This being so, the case is brought within that line of cases in which this court from the beginning has held that a patentee who has parted with a patented machine by passing title to a purchaser has placed the article beyond the

limits of the monopoly secured by the patent act." See to the same effect Free Sewing Mach. Co. v. Bry-Block Mercantile Co., (W. D. Tenn. 1913) 204 Fed. 632; Kellogg Toasted Corn Flake Co. v. Buck, (S. D. Cal. 1913) 208 Fed. 383.

Expiration of patent Rights of public. On expiration of a patent, the right to manufacture the patented article passes to the public, the same as if no patent had been obtained. Westcott Chuck Co. v. Oneida Nat. Chuck Co., (1910) 199 N. Y. 247, 92 N. E. 639, 139 A. S. R. 907, 20 Ann. Cas. 858, reversing judgment (1909) 133 App. Div. 937, 118 N. Y. S. 1149.

All that the patent law requires is that when a patent expires the invention covered by that patent shall be free to every one, and not that the public has the right to the use of any other invention the patent for which has not expired, and which adds to the utility and advantage of the instrument made as the result of the combined inventions. U. S. r. American Bell Telephone Co., (1897) 167 U. S. 224, 17 S. Ct. 809, 42 U. S. (L. ed.) 144, affirming (C. C. A. 1st Cir. 1895) 68 Fed. 542, 33 U. S. App. 236, 15 C. C. A. 569.

Combination including separately patented element.- On the expiration of a patent for a combination, the use of such combination becomes free to the public, notwithstanding the fact that it contains as one of its elements a device covered by another patent to the same patentee which has not expired. Thomson-Houston Electric Co. v. Illinois Telephone Constr. Co., (N. D. Ill. 1906) 143 Fed. 534.

Amendment of patent.-A patent may be amended by application to the patent office and the granting of the certificate, for the purpose of curing mere clerical errors or defects. Woodworth r. Hall, (1846) 1 Woodb. & M. 389, 2 Robb. Pat. Cas. 517, 30 Fed. Cas. No. 18,017.

V. SPECIFICATION AND DRAWINGS Part of patent. The specification and description are a part of the patent when issued, and the patent is issued for the invention described and claimed in the specification. Hogg v. Emerson, (1848) 6 How. 437, 12 U. S. (L. ed.) 505; O'Reilly v. Morse, (1853) 15 How. 62, 14 U. S. (L. ed.) 601; Evans r. Eaton, (1816) Pet. C. C. 322, 8 Fed. Cas. No. 4,559.

The drawing filed with an application for a patent as required by law, with the specifications, constitutes a part of Emerson the patent when issued.

v.

Hogg, (1845) 2 Blatchf. 1, 8 Fed. Cas. No. 4,440; Washburn v. Gould, (1844) 3 Story 122, 29 Fed. Cas. No. 17,214; Phillips r. Sensenich, (1908) 31 App. Cas. (D. C.) 159.

Reference to drawings.-The drawings accompanying the specification of a pat

ent and referred to in the descriptive parts thereof will be examined to ascertain the true meaning of the terms used

in describing the invention. Steiner, etc., Hardware Co. v. Tabor Sash Co., (C. C. N. J. 1910) 178 Fed. 831.

Intent of statute. This provision was intended to prescribe the date on which the patent would begin to run, but should any question arise in the future as to the duration of the patent, the time at which its execution was completed may be proved. Marsh v. Nichols, (1888) 128 U. S. 605, 9 S. Ct. 168, 32 U. S. (L. ed.) 538, affirming (E. D. Mich. 1883) 15 Fed. 914.

Antedating a patent.-A patent takes effect from the time when it is granted and cannot be antedated. Gramme Electrical Co. v. Arnoux, etc., Electric Co., (S. D. N. Y. 1883) 17 Fed. 838.

Directory provision. Under the section as originally enacted and set forth in the text, it was held that the provision as to dating patents was directory merely, since the same section allowed the applicant six months after notice in which to pay the final fee; and where, by reason of the accumulation of work in the office, the patent could not be prepared and signed after such payment within the six months, and it was therefore reallowed and issued on the later date, it would not be held void for that reason, at least at the instance of a private party in a collateral proceeding. Western Electric Co. v. North Electric Co., (C. C. A. 6th Cir. 1905) 135 Fed. 79, 67 C. C. A. 553.

Under the old practice it was permissible for the commissioner of patents to antedate a patent to make it correspond with a prior English patent to the same patentee. Tilghman v. Proctor, (1881) 102 U. S. 707, 26 U. S. (L. ed.) 279.

And under the Act of 1861 a patent might have been dated as of the date of filing the specification unless an interval exceeding six months intervened between specification and issue. Burdett v. Estey, (1880) 19 Blatchf. (U. S.) 1.

Determination of priority. If two patents are issued at different dates to the same patentee priority will be determined

by the date of application. Barbed Wire Patent; (1892) 143 U. S. 275, 12 S. Ct. 450, 36 U. S. (L. ed.) 154.

Priority of patents dated on same day. -Where two patents are issued on the same day by the patent office, and there is no other evidence of seniority between them than such as appears from their several numbers, the earlier in number must be regarded the senior and the earlier in publication. Crown Cork, etc., Co. n. Standard Stopper Co., (C. C. A. 2d Cir. 1905) 136 Fed. 841, 69 C. C. A. 519.

Date of corrected patent.- If the patent is corrected to supply an essential element which had been omitted, the date of the patent will be the date of such correction. Marsh v. Nichols, (1888) 128 U. S. 605. 9 S. Ct. 168, 32 U. S. (L. ed.) 538.

Necessary application to determine date. -The application, when produced, in order to be effective evidence to carry the date of the invention back to its own date, must be an application for substantially the same invention for which the patent is granted, without material variation or addition. Chicago, etc., R. Co. v. Sayles, (1878) 97 U. S. 554, 24 U. S. (L. ed.) 1053; Eagleton Mfg. Co. v. West, etc., Mfg. Co., (S. D. N. Y. 1880) 2 Fed. 774.

But if the patent was not accompanied by the application, the date of the patent would be deemed to be the date of the invention. Eagleton Mfg. Co. v. West, etc., Mfg. Co., (S. D. N. Y. 1880) 2 Fed. 774.

Acquiescence in delays of patent office. -That an applicant for a patent acquiesces in delay in the patent office is immaterial to the courts, and does not affect his rights under his patent, so long as the statute law is not violated. Electric Vehicle Co. v. Duerr, (S. D. N. Y. 1909) 172 Fed. 923, reversed on another ground (C. C. A. 2d Cir. 1911) 184 Fed. 893, 107 C. C. A. 215.