DDElUL .JtEl>OBTBB,
vol. 48. & LoCK
GERARD V. DIEBOLD SAFE
Co.
Court, E. D. Texas. December 10, 1891.) PA'l'JIlIlTI I'OR lliYBNTIONs--LrM;ITATION 01' CLAW-BURGLAR-PROOP BAll'BI.
Letters patent No. 246,748, issued September 6, 1881, to Alonzo Gerard, are "an improvement in burglar-proof safes, "and the inventor repeatedly uses this description in the sDeoificatioIlll, also stating that the object is to.provide "a safe" with non-explosive seamll, and that "anv suitable locking device may be operated to throw a bolt on the iuner face of the door · · · which willprevenL the shaft. and handle from being to unfasten the door." The claims are for" a combination. Qf a safe" specified, with a particular locking device described. that the· patent was for a burglar-proof" safe" and not for a burglar-proof" safe lock, ," and hencie was not infringed by the use of a similar device in the construction Qf jail cages.
In Equity., Suit by Alonzo Gerard against the Diebold Safe & Lock Company for infringement. of patent. On demurrer to the bill. Sustained. Fizet Miller, for complainant. H. Po Ring, for defendant. PARDEE, J. . The complainant's bill is for an injunction and an accounting in the matter of an alleged infringement of a patent. The bill sets forth, in the usual form, that the complainant was the original and first inventor of a certain new and useful improvement in burglar-proof safe locks, patent United No. 246,748, with the usual allegations.B.S to.pri(>r knowledge and prior use. The bill proceeds to charge.. That thedefendant, in:violation of the exclusive right of complainant, without any'!icense, ,at Canton, in the county ofl::ltarke, state of Ohio, has made or caused to be made, sold, and' has used, in the construction of locks upon jail cages,' at divers places. one or more locks embodying the in,vention .and improvements described and claimed in said letters patent; that the said defendant has been notified;' of his said infringement, and requested to desist therefrom,but that he refuses to do so, and persists in the use of said infringing apparatus or locks ,in open disregard and defiance of complainant's !'lxclusive said Jetters patent. It To this bill the defendant has interposed a general demurrer. The points made thereunder are that it appears from the bill, and the letters patent proffered in connection therewith, that complainant's invention is a combination, one of the essential elements of which is a safe, while the bill affirmatively shows that the defendant is using something not in combination with a safe,-a character of device of which a safe cannot be one of the parts; that the bill upon its face excludes the hypothesis of a safe forming one of the parts of the device used by the defendant, as alleged, in the construction of locks upon jail cages; and that it is also apparent upon the face of the bill that the stated object of complainant's invention, to-wit, "to provide a safe with non-explosive seams," is entirely foreign to the object of the device employed by the defendant, which is described in the bill as something used in the construction of locks upon jail cages.
GERAltD tI. DIEBOLD SAFE & LOCK CO.
881
An inspection of the letters patent No. 246,748, dated September 6, 1881, proffered with the bill, shows that the patent, as described generally by the patent-office, is for "an improvement in burglar-proof safes;" that the inventor, in his specifications, declares he has invented certain new and useful improvements"in burglar-proof safes;" that his invention relates burglar-proof safes," the object being to provide "a safe" with non-explosive seams; that the safe is constructed of the usual materials, in, such a way that at ita front, between the inner nnd outer walls, on all sides.,· is a series of projecting shoulders, or tongues and grooves, which correspond with similar projections and depressions on the inner face oBhe door, which fits flush within the outer projecting rim of the safe; and thllt, when the door of tho safe is closed and secured, these interloc;:kingprojections and depressions form a close seam, into which it ,is impossible to introduce an explosive to a sufficient distance to have any injUp.ous effect upon the joint,-and, after further describing the . apparatus 'and its operation, says "that any suitable locking device may be operated to throw a bolt on the inner face of the door * * * which will prevent the shaft and handle from being operated to unfasten the door." The claims are: "(1) The combination with a safe haVing grooves, G, G, of a door provided with oblong rectangular plates, C, secured at the edges thereof, sliding plates, D, arrllonged.undel' said fixed plates, and adapted to enter the grooves in the inside of the'.safe; a vertical main lever, E,attached to the. upper sliding and connected by pivoted levers, e, e, with lugs on the side and bottom sliding plates, and haVing link, e, and crank handle, F, whereby said sliding plates are actuated through their attached levers, substantially as specified. "(2) The combination of the safe. A, having notched lugs, I, I, and casings. t, L, the door, B, provided with bearings, g, g. and sliding hinges, K, K, having slots, k, engaging with pins, k', in the casings, L. and the doublecrank shaft, H, having h, h, and pins, h', h', engaging with the .notched lugs, I, substantially as set forth." From the Elpecificationsand,the claims, it is difficult to separate from the alleged combination a burglar-proof safe. It is well-settled patent la":, a combination is an enthety. If one of its elements is ,Qmitted.,''tp'eqthing claimed disappears. Every part claimed is conclusively presumed to be material. Vance v. Campbell, 1 Black, 430, retdIirmed..:Jp. . Gould v. Ree$, 15 Wall. 194; Gill v.Wdls, 22 Wall; 26; (Jammeyer'v. Newton, 94 U. S. 225; Fuller v. Yentzer, Id. 297; Schumacher v. Ccrl"ruill.; 554,--and many other cases. It is clea:r that the patent is not for a burglar-proof safe lock, nor for ,an burglar-proof safe locks, nor for a combination of elements constituting a burglar-proof lock; for, aside from the fact that the specifications and claims do not cover any locking device, the specifications qeolare that any suitable locking device. may be operated to ;l;lolt {\;WhiQh wUl prevent the shaft and handle from being operated to unfasten the door,"-that is, to lock the door; and, if the locking device be omitted, it .pUts an end to. all claim that the apparatus, is burglar proof. The most favorable view that can 1;>e tl!.k.en of the complain-
nDJl:RALREPORl'ER,
vol. 48.
.
:: i
ant's invention
is that. it is in the door of aburglarproof.. safe, combining the elements claimed, all actIng together so as to i'ander the door, when closed, impervious'to the admission of explosive substances. The objection to this construction is: thatit is not what the patentee claimed, nor what the patent'office allowed. See McClain v. Ortmayer, 141 U. S. 419, 12 Sup. Ct; Rep. 76, where it is said: IlWhile the have b.een utltortunate in the'language he has ehOSEln to express his8ciual invention, and may have been en-titled to a broader claim, we ,are not at UbertY', without running counter to the entire current of authority in this court, to construe such claims to include more than their imports·... Nothing is better settled of patents than langu.age that the :patentee may claim the whole or only aparto.f his invention, and that, if he only describe and. claim a part, he is presumed have abandoned the res,idue to the pUblic·. 'fhe object of the patent law in requiring the patentee' to ·particularly point out and distinctly claim the part, improvement, or'combination wllich he claims as his:jnvention or discovery,' is not only to secure to him all to which he is entitlE-d, but to apprise the public of what is. still open to them, The claim is the measure of bis right to relief; and, while the specification may be referred to toUmit the claim, it can never be made available to expand it." . .
As the bill claims a patent for an improyement in burglar-proof safe locks, which is not supported by the letters patent pr()U'ered, and as the infringement charged is' wholly incompatible with complainant's patent, as shown by his letters patent, the demurrer is well taken, and should be sustained; and it is so ordered.
HAUGHEY .,. LEE tit
ale
tt4'1'B1M'8 lOB
The of patent No. 879,644, of.llarch 20, 1889 W&II for All "Interfering d. vice. " to be placed around a horse's leg to protect it from contact with the hoof of the other leg, and to widen the stride, consisting of the pendant of "suitable material, 100"11 jointed to the strap passing around the leg of the horse." Devices for this purpose were old, and had been constructed in the form of a strap with leather loops, formillg "strikers, "..,.-Le., the part adapted to hit t!J.e other hoof,_ttllOhed. standing out 1Iorizontallr towards the other leg, and of a pliable material wound round the lel£ with the enlls inside, and projecting horizontally towards the other leg! to form tbe .·triker." A. .trap having a pendant had been attached to the leg or horses to Prevel',\t .stall kicking. Held. ill. view of the state of the art, no invention W&II shown in ohanRinR the position ottbe"liItriker" from a horizontal to a pendent position., : .
InuTloNB-INV1Ili'l'ION.
Bill in Equity by Michael Haughey to enjoin :ue & Sons from indevice for fringement of patent granted to oomplainant for horses. ' E. J. O'BMand Edward P. BliB8, for complainant. ErneBt H(fW(M'd for respondents.