| U.S. Circuit Court for the District of Western Pennsylvania | Mar 24, 1884
The grounds of defense are—First, that the plaintiffs have not shown title to the patent sued on; and, secondly, that there has been no infringement by the defendants.
1. The patent was granted on December 12, 1871, to Allen IT. Bauman. He subsequently died intestate, and letters of administration upon his estate wore duly issued to Beaben E. Bauman, who as administrator sold and assigned the patent to the plaintiffs. The defendants controvert the title thus acquired, maintaining that upon the death of the patentee, intestate, the patent became vested in his heirs, and therefore that tiie administrator was without authority to make sale and assignment thereof. The argument is based on the change in the patent law made by the twenty-second section of the act of July 8, 1870, (reproduced in section 4884 of the Revised Statutes,) whereby it is enacted that the patent shall contain “a grant to the patentee, his heirs or assigns,” the previous legislation having provided for a grant to the patentee, his heirs, administrators, executors, or assigns. This chango, in connection with some other provisions of the existing law, it is contended indicates an intention on the part of congress to secure the benefits of the invention to the heirs of the deceased patentee, in case of intestacy, to the exclusion of the administrator. An impressive argument was made by counsel in support of this view. But the contrary has just been decided in the first circuit in the case of Shaw Relief Valve Co. v. City of New Bedford, 19 Fed. Rep. 753, in which was involved the identical question now before me. To the able opinion of Judge Lowell in that ease I can add nothing. Adopting his conclusion I must overrule this defense.
2. Whether or not the defendants infringe depends on the construction to be given to the claim. The subject-matter of the patent is a
In the body of the specification occurs the following passage:
“Immediately underneath the whole. of the surface formed by the pipes is placed a wire sieve, in', to prevent the sand or gravel from passing too rapidly through the spaces or openings between the pipes, and before the same is sufficiently dried; the sieve so used to be coarse or line, according as the sand or gravel is coarse or fine.”
There is but a single claim, which is in these words:
“The apparatus herein described for drying gravel or sand, consisting of the fire-chamber, flues, heating pipes, ¡md case, all constructed and arranged substantially as set forth.”
The word “case” does not appear in the descriptive part of the specification,‘and is used in the claim only. What does the term comprehend? The defendants insist that it includes the sieve, FF, as an essential constituent; and as they do not use a sieve or any substitute therefor, it is contended that they do not infringe. Webster defines “case” to be “a covering, box, or sheath; that which incloses or contains.” Now, turning to the specification we discover that AA is a “box or frame” in which the wet sand or gravel is placed to be dried. What constitutes the bottom of this box ? Is it tb e sieve ? Certainly not, if the specification is to furnish the answer; for it distinctly asserts, not once only, but twice, that the bottom of the box or frame, A A, is composed of sets of pipes so constructed as to form a surface upon which the wet sand or gravel rests during the drying process. We have, therefore, the “ease” complete in all its parts without the aid of the sieve, FF. In fact, it is not an essential part of the machine, for without its co-operation the apparatus successfully performs
“The court should proceed in a liberal spirit, so as to sustain the patent and the construction claimed by the patentee himself, if this can he done consistently with tho language he has employed.”
Let a decree be entered in favor of the plaintiffs.