922
(, '87:FEDERAL R}j)POR'1'ER.
estimates pet gross. fllhemaster mates their' cost 'at. $1;93. Inasmuch 'as the master:sestimate of cost on the other'otickles exceeds that of defendant, and the defendant has. furnished n'o" definite statement of errors ,on this No. I am able to adopt :01' complainant's counsel admits 1,403 to be correct, I shall; adopt the master's instead of the defendant's estimate of cost, which gives a cost of $9,762.21; and deducting this profit the admitted selling price of $14,245.23 leaves $4,483.02, Which, added to $323.13 profits on the other series, makes $4,806.15. In regard to the selling price adopted by complainant, the actual sell· ing price of the buckles sold separately was 15; per cent. above the cost, as, ad.mitted by eomplainant.1n the case of No. 1,403 the selling price is more tl1an45 per cent. above the cost, which indicates that it is sufficiently high; that is, the complainant is allowed about three times the proportionate profit on No. 1,403 ,that was made on the other numbers in which the actual selling price and cost are admitted by complainant. Furthermore,as the claims allowed do not the. whole buckle, and as defendant improved the buckle for this particular purpose, and added a new:element thereto, the share of profit to be assigned to the buckle must, as the report in other ways makes eVident, be a matter of opinioti,upon which different minds would necessarily differ. I think the above amount is as much as should to the bUckle and recovered by complainant upon all thefacfs before me, and especially in View of hel'delay in enforcing her rightg. Let judgment !Ie entered for complainant for said sum of. $4,806.15. " PERKINS ELECTRIC SWITCH MD'G. CO. v. GIBBS ELECTRIC MFG. CO_ et al. (Circuit Court; D: Connecticut. 1.
June 20, 1898.)
PATENTS-CONSTRUOTXON'QF CLAIMs-PROCEEDINGS INP....TENT OFFICE.
A patentee should not, necessarily be estopped by statements of his solicitor In explaining the claims; but where he deliberately acquiesces In the rejection of a broad claim, and substitutes therefor a narrower one, as a conditional securing 'thetpateliJ.t,. be cannot th¢reafter Insist on a construction which, will cover what was thus abandoned. The Gibbs patent, No. 517,100, fOf an Improvement In electric switches of the for/D as "snap ,switches," covers a new and useful Improve. ment, but must be limited to the 'precise construction shown. . , "
2. SA,ME-ELEOTRIC SWITCHE;s, . ' .
i.' '. . ·
..
,.
.,','
"
TOWNSENlD,District Judge. Bill in equity on patent No. 517" 100, granted :(\:larch 27, 1894, to complainant, as assignee of one Gibbs. Defendants cla.im that they manufacture under patent No.
PERKINS ELECTRIC SWITCli MFG.
co.
V. GIBBS. ELECTRIC MFG. CO.
92:>
557,198, granted to said Gibbs. .Tb,e invention relates to that form
of electric switch known as a "snap switch." C9mplainant and defendants each use de.vices which comprise the ordinary insulating base, with stationary contacts, and the lock latch and trip, of the prior art. Each use what will hereafter be called the "two-part block"; the complainant actuating it by a screw and. nut, while the defendants use a rack and pinion. The complainant, after the manner of owners of patents for electrical devices, claims that this twopart block feature is a great invention, "and constitutes such an important contribution to the art. that thepate:!lt may be regarded as of the pioneer class, and,' as such, interpreted to cover, not the mere forms shown, but, as well, the reill invention of the claims." The claims in suit alleged to cover this feature are the following: "(1) An electric switch, having a baSt! with stationary contacts; a rigid lock, independent of any conducting parts; and a rotary handle, with a screw thread bearing a two-part block (one part having conducting poles, and the other part normally engaging with the'lock on the base, but adapted to be rElleased therefrom by the rotation of the handle spindle); and a spring, connected 'between the spindle and a portion of the block, for throwing tl1eblock when tl1e lIplndle is sufficiently rotated,-substantially as specified. (2) An electric switcl1, having a base with stationary contacts, and a rotary handle spindle, with a screw thread; a threaded nut borne 'by tl1e screw; a block, with conducting poles, loosely connected with the nut; a lock on the base for temporarily holding the nut and block against rotation; and a spring for rotating the block when the nut is released from the lock,-substantially as specified. (3) An electric switch, having a base with stationary contacts, and a rotary handle spindle, with a screw thread; a threaded nut borne by the screw; a block, with conducting poles, held rotarily with, but movable sidewise independent of, the nut;· a circular ratchet on the base beneatl1 the nut; and a spring, with one end connected witl1 the spindle and tl1e other with tl1e nut,-substantially as specified."
which, when the nut is screwed down the thread, are adapted to ,make contact with the teeth of the ratchet on the base," and "a cu:cular block of insulating material which b,olds a pair of conducting poles." A screw-threaded spindle bears this nut, and when said spindle is rotated the nut is drawn up said spindle until it is freed from the teeth of said ratchet, when it springs forward, and carries the block {)f insulating material to a point where its poles make or. break contact between stationary rigid contacts below, and spring arms above, said block. Whether such a mere locking nut forms a part of a block, and whether complainant's device is a t'Yo-part block, as distinguished from the prior art, is a question of names, and immaterial. The term did not originally appear in the patent at all, and now is nowhere to be found except in the first claim. The essential consideration is the functional result of this construction. The block, being "loosely supported, so that it rotates with, but moves sidewise independently of, the nut," floats, as it were, between the contacts, and thus secures better contacts, is adapted to use in switches constructed or assembled by ·unskilled labor, and thus 'Cheapens the ,product. The complainant's patent covers a practical construction.. But, stripped of the dazzling hllio which conventionallyadorus appliances designed to deal with that mysterious
ed nut that is preferably provided with wings, the bottom edges of
The "two-part block," so-called, of the pateI\t, consists of "a thread-
924
87 FEDERAL REPORTER.
electriCity, and viewedin the everyday'light of the prior art, it is merely a new and useful improvement, effected by the skillful adaptation of well-known means so as to secure greater freedom of movement. Complainant has made more ontof its patent than the pat· enteeconceived, by the discovery of the hnportance of the distinction, between one-part' and two-part'blocks; but nevertheless the patent is a good 'one, within narrow limits. , 'Patent No. granted August 26, 1890, to Norton, sufficiently shows the status of the patent in suit, with reference to the prioi'art. It shows the, lock, latch, tr'ip, and spring of complainant's patent, and a perforated block of 'insulating material, and a camfaced disk, from which two pins extend down so as to pass through said perforations into corresponding holes in the base,and is operated. like I complainant's switch. It is immaterial whether this is a one-part oJ a It does not provide means for such free floating or sidewise movement: as are shown ill complainant's patent. Its contacts are rigid, and therefore the range of sidewise movement of the blocks must be limited. But it is cited here in order to show what slight modifications were required to adapt existingappliances to the new requirerpents of the electric switch art. Neither complainant nor defendants construct their switches in accordance with the specifications of the patents under which they respectively profess to' make them. Defendants nse a block like that covered by the patent in suit.. But their handle has no "screw thread, bearing a two-part block," nor "threaded nut borne by the screw,"a\,j,claimed in the patent in suit. ; Their switch is operated by means of a rack ano pinion, as described in patent No. 557,198, to defendant Gibbs. The pinion is borne by the spindle, and is located in a recess in the block, and a sliding rack meshes with it. ' When the h'andle'is turned, the pinion moves the rack outward to work a catth, wIlich moves at right angles to the axis of the spindle until the, block is unlocked and rotated by the spring in tlte ordinary way fori making or breaking contact. , The complainant claims that the defendant Gibbs, by the substitution 'of the rack and pinion, merely sought to evade his former patent, 'and that the 'one is the equiv'alent of the other. If this were a broad patent, there would be more force in this contention. But, as defendants have neithersC,few nor nut, we must examine the file wrapper for further light. Ido not think the patentee should necessarily be estopped by' statements made by his ,solicitor in explaining the claims. But here the ,broad, claim w'as' rejected, and the applicant, as a condition of !'le,curing his patent, deliberatelj' acquiesced in such rejection, and, as, a condition of, rectiiving a patent,. abandoned the broad claim,. and substifuted therefor a narrower one. Upon notice from the patent office of the adverse claims of the public, the inventor is at liberty to stake out his boundarieawherehe sees fit, but he cannot then fix them bya roIling stone, to be afterwards pushed into the domain occiIpied by the pUblic. In 'the first claim, as originally filed, the twopart block construction was neither referred to nor claimed. The claim was rejected on the Norton patent, No. 430,252, and Johnson patent, 'No. 427,328. The claim was then'seamended as to refer to-
THE RITA,
925
"the lo.cking part of block for throwing the block," and was again rejected, in the following language: "Claim 1 covers no more, broadly, than the mere use of the Idea ot the Independent locks of 435,152 on the switches of 427,328. Such use, broadly, is not patentable. The applicant Is limited to hIs specIfic construction."
Patent No. 435,152 is the Norton patent, already discussed. The claim was again amended; the attorney for the expert arguing as to said claim as follows: "It cannot be said to cover merely the use ot the Norton lock on a Johnson switch. ThIs claim is lImited to a specific construction, and the structure claimed Is not found In the references cited against the former first claim."
The claim was again rejected, and claim 1 of the patent in suit substituted therefor; the attorney for the applicant saying, inter alia: "The reference cited does not have a screw thread bearIng a two-part blOCk, one part having conducting poles, and the other part engaging With a lock on the base, which Is now an element of the first claIm."
Claims 2' and 3, which are limited in terms to a screw-threaded spindle and threaded nut, were allowed as filed, .and the objection to the first claim was amended so as to cover a certain specific construction. In these circumstances, complainant's claim should be limit· ed to the precise construction stated by the patentee, and should not be extended to cover the broad construction abandoned by him in the patent office. And inasmuch as the defendants do not use "a screw thread bearing a two-part block," and operating horizontally, but a rack and pinion .moving at right angles to the axis of the spindle, they do not infringe said first, second, and third claims. The. fourth claim is a narrow claim in terms. It was narrowed by the action of the applicant i,ll the patent office to a "block of insulating ma.terial, bearing loose poles of conducting material." It abundantly appears from the record that this claim means "poles free to move a little longitudinally in the block/, as stated in the specification, The defendants' conducting poles are rigidly screwed to the block of inSUlating material, and therefore said block holds rigid and fixed poles, not loose poles, of conducting material. Let the bill be dismissed. THE RITA.
(DIstrict Court, D. South Carolina. L PRIZE-CONDEMNATJON-ENEMY's VESSEL.
J'nne 2, 1898.)
A Splj.llish merchant· .ve,ssel .captured, after the declaration of war, by a States cruiser While bound from a neutral to a Spanish port, Is lawful prize, not being withIn the exceptions mentioned In the presIdent's proclamatlo'n ot April 26, 1898. . . 'Thea.ct of April 25, 1898, declaring. that war has existed sInce AprIl 21, 1898, l.!etween the UI11ted States and the kingdom of Spain, fixes the preGlse period when the peCUlIar duties and obligations imposed by the condItion ot war a r i s e . ' .
L
BAME-::'DECLARATION OF WAR.