245 F. 659 | 9th Cir. | 1917
In a suit to enjoin the infringement of letters patent No. 1,115,895, issued November 3, 1914, to C. F. Brown, assignor of the appellee, the court below found that the appellant had infringed claim 2, which .reads as follows:
“In a towel holder or the like, the combination with a supporting member of an assembling member adapted to secure towels in assemblage upon the supporting member, a flexible retaining member, co-opei’ative therewith, for the purpose specified, and means for detachably securing both ends of said retaining member together.”
In the appellee’s device the “supporting member” is a shelf; the “assembling member” is a standard, curved at the upper end, passing in its lower end through the shelf. The “flexible retaining member” is a chain, one end of which is attached to the curved end of the assembling member; the- other end being detachably secured to the lower end of the assembling member beneath the shelf by the use of a padlock. The towels are fitted with eyelets through which, when they are piled upon the shelf, the standard or assembling member is passed. In practice a towel is taken from the shelf, slipped over the curve of the standard, and after being used is dropped; but it is retained by the sag of the chain, which, according to the drawings, extends into a basket on the floor, which serves as a depository for soiled towels.
The court below was of the opinion that the appellant’s device, wherein the chain is attached to the bottom of the basket on the inside, instead of to the foot of the assembling member, did not vary the appellee’s device to such an extent as to add a íxew discovery, or even an old element to the combination, and propounded the question whether, if the appellant had used the Reid patent, aixd had simply detached the chain from the wall and attached it to the bottom of the basket, it could be said that such change constituted an added ,discovery or new element to the Reid patent. But we think the test question here is not whether the defendant has added a new element to the Reid or the Brown patent, but it is purely a question whether he has infringed the patent in suit, and that is to be determined from the nature and scope of the appellee’s combination as measured by the prior art, and the inquiry whether the appellant has used the combination of elements described thereixx.
"Where an improvement is narrow in its character, the inventor is ordinarily confined to his specific device, and receives little aid from the doctrine of equivalents. If he depends on a single limited feature (as is the case here), the doctrine will not ordinarily be applied, so as to cover a device in which that feature does not appear.”
Cases of similar import are Noonan v. Chester Park Athletic Club Co., 99 Fed. 90, 39 C. C. A. 426; Wright & Colton Wire-Cloth Co. v. Clinton Wire-Cloth Co., 67 Fed. 790, 14 C. C. A. 646; Hill v. Sawyer (C. C.) 31 Fed. 282; Dey Time Register Co. v. Syracuse Time Recorder Co., 161 Fed. 111, 88 C. C. A. 275. If it were held that attaching the lower end of the chain to a basket is the equivalent of the specific means pointed out in the appellee’s combination, it would follow that attaching it to any article of furniture, or to the wall, as in the Reid patent, would also be a mechanical equivalent. Brown made claims broad enough to include such methods of attaching the lower end of the chain, but in view of the prior art they were rejected by the Patent Office.
“A device which, if existent before the making of a patented invention, would not anticipate it, cannot, if made after the issue of the patent, be said to infringe it.”
See, also, Riverside Heights Orange Growers’ Ass’n v. Stebler, 240 Fed. 703, 709, — C. C. A. —, and cases there cited.
We think it clear that the appellee’s claims should be so interpreted as to cover only details of construction, and that the appellant’s device does not infringe, since it lacks the element which is the distinguishing feature of Brown’s invention.
The decree of the court below is reversed, and the cause is remanded for further proceedings.
fe^For other cases see same topic & KFY-NUMBER in all Key-Numbered Digests <& Indexes