99 F. 294 | 2d Cir. | 1900
The specification opens with the state- i> ment that the — ■
“Invention consists mainly in the combination, in a magazine firearm, of a piston-breech with an actuating-slide, provided with a hand-piece, arranged*295 beneath the barrel, and acting as a support therefor, and adapted to be grasped by one band and reciprocated, in a line parallel with the axial line of the barrel, while the other hand is employed in holding, the stock of the gun against the shoulder of the person using it.”
In describing the drawings the specification further states that:
“The piston-breech, E, is connected with and operated hy the reciprocating slide-bar, F, provided with the handle, F'. This handle, F', not only affords means of reciprocating- the slide-bar, F, but also constitutes a means whereby the barrel may be supported. The handle therefore constitutes a support for the barrel.”
The brief of counsel for appellant contains an epitome of the testimony of complainant’s expert, which sets forth the invention described in the patent with sufficient accuracy, as follows:
“The essence of the Koper invention is a magazine firearm so organized and constructed that the supporting, actuating handle, by reason of its location in front of the. receiver, and of its combination and connection with the piston-breech, performs the function of actuator operating the piston-hreech to work the action mechanism of the gun, and also, by being at the proper time in exactly the right place to be grasped by the forwardly extended hand of the user, the function of supporting the gun at the moment of firing, thus insuring accuracy of aim and steadiness of fire.”
It will not be necessary to give further quotations showing what particular functions the piston-breech discharges, and precisely how, in the device shown in the patent, it brings about, when moved by the connection with the actuating hand, the ejection of the discharged shell, the removal of the new shell from the magazine, transference thereof to the barrel of the gun, and the closing of the parts in readiness for discharge, because, out of the 11 claims of the patent, only 6 are here in controversy, and in those 6 such details are not made elements of the claim. This is apparent from the text of the claims, which read as follows:
“(1) In a magazine firearm, a piston-breech suitably connected to, and in combination with, an actuating sliding handle situated forward of the receiver, and serving as a means for supporting the barrel, and provided with a path of reciprocation in a line parallel with the axial line of the barrel (2) In a magazine firearm, the combination of a piston-breech, a supporting-handle forward of the receiver, and movable in the direction of the length of the barrel, means connecting the handle and piston-breech, and means whereby the piston-breech will be held in position during firing, substantially as specified. (3) In a magazine firearm, the combination of a piston-breech, a supporting-handle forward of the receiver, and means connecting the piston breech and supporting handle, so that when the supporting-handle is used the piston-breech will he moved in the same direction, substantially as specified. (4) In a maga-zine firearm, the combination of a piston-breech, a supporting-handle forward of the receiver, movable in the direction of the length of the barrel, and means whereby, when the said supporting-handle is moved back and forth, motion will be transmitted to the piston-hreech so as to cause the latter to move back and forth, substantially as specified. (5) In a magazine firearm, the combination, with a barrel and a tubular magazine, of a piston-breech, a device whereby the passage of a cartridge from a point opposite the magazine to a point opposite the barrel will be effected, and a supporting-handle forward of the receiver, adapted to move in the direction of the length of the barrel, to operate the piston-breech, and to operate the device whereby the passage of a cartridge from the magazine to a point opposite the barrel is effected, substantially as specified. * * * (8) In a magazine firearm, the combination, with a barrel and magazine of a piston-breech, a supporting-handle situated forward of the receiver, for reciprocating the piston-breech in the direction of the length of the barrel, and a device operated by the piston-breech, and serving to cause*296 tíie-passa^ecófi^á cártridge from a point opposite fee magazine to a point opposite-fee-barrel, substantially as specified.”
A movable breechblock, which could be opened and closed in order to,.remove..old. shells, place new cartridges in position, and close tlie bréech against explosion, was, of course, old in the art; and long before the patent in suit there were in-use two well-known varieties of breechblock, — the “piston-breech,” the principal mode of motion of-which was forward and backward, or in a line parallel with the longitudinal axis of the barrel, and the “swinging-breech,” the principal movements of which are sliding or rocking movements in planes which- are transverse to the longitudinal axis of the barrel. We concur with the circuit judge that, both forms of breechblock being-old, there would be no invention in the mere actuation of a piston-breech by axial - movement of the supporting handle, if the art already, knew of the actuation of a swinging-breech by axial movement of such handle, although there might be field for improvement in the mechanism by which connection was made between the handle and breech, and in the mechanism by which the breech, when actuated, completed its necessary movements. But in the claims in suit the mechanism by which the breechblock operates is not made ,an element, and the mechanism for connecting handle with breech-block is referred to only by such phrases as “suitably connected,” or “means connecting,” “means whereby motion will be transmitted,” “handle adapted to move the piston-breech,” “handle for reciprocating the piston-breech.”
• Among the patents set forth in the answer was one to E. M. .'Spencer and Sylvester H. Roper (the patentee of the patent in suit) for' magazine firearms (No. 255,894, dated April 4, 1882). The description of this firearm is clearly set forth in the specifications, as follows:-' '
■ • “It is fee object of our invention to provide for fee recharging of a magazine-shotgun without requiring the gun to be taken down from the position in which h ">as been fired. We accomplish this result by means of a forked slide provide*., with a handle, which is arranged beneath fee barrel, in convenient 'position to be grasped and reciprocated by one hand while the gun is held ágainst the shoulder by the other hand, which grasps the stock. One arm of fee forked slide carries at its end a laterally projecting pin, lipón which is a friction roller which traverses a cam-groove provided with a spring-tongue or switch-cam in the side of an oscillating breechblock.”
Here follows a detailed description of tbe meebanism by which, the handle is connected with the breech, and of the mechanism by which the breechblock, performs its functions in removing old shells, supplying new ones, etc. The specification proceeds:
,■ “It will be understood feat, while the devices which we employ may be variously modified; the leading feature of our invention — the prime mover of the ■mechanism by which the desired results are accomplished — is the forked slide provided with a handle forward of the breech, in a convenient position to be ■grasped by. fee hand and reciprocated in a path substantially parallel with the barrel, while the other hand grasps the stock and holds the gun against the •shoulder in firing position.”
." .Tfie-similarity between this statement of .invention and that set forth-in the patent in suit is most striking. The evidence, however, shows-that-the-firearm of the patent in suit was actually made (Feb