243 F. 883 | 7th Cir. | 1917
(after stating the facts as above). The questions presented are substantially as stated above, and may be thus restated: Is the equity decree, dismissing the bill for want of equity and because defendants therein (plaintiffs here) had an adequate remedy at law, an estoppel in this case, sufficient to support the judgment sought to be reviewed? Does the general finding of fact in the judgment prevent a review on this writ of error? Was proof of the prior art admissible either (1) because the Lindstrom & Streib patent refers to the prior art; or (2) because the words “arranged to support the door directly” in claim 13 are ambiguous; or (3) because there has been no user or enjoyment under the patent in suit, as claimed in the brief or amicus curias ? Did defendants use the mechanism of the patent in suit, and should the judgment therefore be affirmed?
“In our judgment tlie reason of the case leads to tile conclusion that, between contracting parties extraneous evidence is inadmissible if there is no ambiguity or uncertainty in the language of the description and claims, and that, if' there is uncertainty, outside evidence is admissible only to make clear what the applicant meant to claim and the government to allow, and not for the purpose of showing even in the slightest degree that the applicant had no right to claim and that the government was improvident in allowing what was in fact claimed and allowed.”
"Car door mechanism having a lifting shaft arranged to support the door directly when the door is raised, and a flexible connection between the shaft and door.”
It is insisted by defendants that the use of the word “directly” clearly means that the door support must be immediately beneath it, while
IvIndstrom & Streib.
The prior art which was offered, and later struck from the record, is claimed to show the following:
“1. Door supported by tbe winding or lifting chains, as represented in Lip schutz, No. 750,670.
‘■2. Doors supported by the lifting shaft through intermediate means connecting the shaft and the doors, as represented in Si monton, 616,811, Simon-ton, 6(i6,160, and Bellows, 693,218.
“3. Doors supported by bolts or latches operated :by means other than the winding shaft, as represented in Simons, 531,584, Campbell et al., 598,136, Hager, 674,357, Hanson, 720,245, and Swanson, 727,487,
“4. Doors supported by bolts or latches operated by the winding shaft or chain as represented in Bellows, 644,890, and in the defendant’s construction built under Christianson, 828,458.
“5. Doors supported directly by the shaft, as represented in Becker, 703,841, in Caswell, 806,394, and in the Lindstrom & Streib patent in suit.”
These prior patents, it is said, show why the word “directly” was used in claim 13, to distinguish between the fourth and fifth types, and limit the claim to those constructions in which the shaft supports the door without the use of any medium, such as the latch. Therefore, it is insisted, the claim is clear, and excludes defendants’ construction; but, if by any possibility the word introduces uncertainty, the prior art clears it up, and shows that defendants did not use the Lindstrom & Streib conception.
The technical force of this argument is evident, but we think, since the validity of the claim is necessarily conceded, absolutely unlimited in its prima facie scope by the prior art, the two constructions must he regarded as equivalent in all respects. One slides the support and the other the thing supported, obviously a mere mechanical interchange; as defendants’ counsel said (in another connection), the two are twin brothers. The purpose of Lindstrom & Streib was to securely support a car bottom door by means of the shaft used to open and. close the door. This means and operation are admittedly novel and useful, without any anticipation whatever. The estoppel supplies all these elements. In this situation it is plain that defendants use like means and operation and get the same result.
As already stated, estoppel by patent license is by deed, and does not depend on user of the device licensed. It is most clearly shown, in plaintiff’s brief in reply to Mr. Ellis, that a patent conveys nothing but a negative right of exclusion. It is the right to exclude others, but not the natural right to make, use, and sell, which the patentee obtains from his general ownership of the materials employed, not from the government. So the licensee does not obtain this right to malee, use, and sell from th#license, but only immunity from suit by the licensor. Paper Bag Case, 210 U. S. 405, 28 Sup. Ct. 748, 52 L. Ed. 1122; Hartman v. John D. Park & Sons (C. C.) 145 Fed. 358, 364. A license passes nothing, but only makes something lawful which would have been unlawful without it. Even a patent assignment creates merely an immunity, and the right to exclude others. Hence a licensee under a patent does not enter into or use any property transferred, so that real estate and patent licenses are in this respect properly distinguished.
The fact, therefore, that defendants never intentionally used the Eindstrom & Streib devices, and made no use of that licensed invention other than by the purchase and use of the cars in suit, is, we think, of no materiality in the case.
The judgment is affirmed.