200 F. 958 | 1st Cir. | 1912
The appellee company owns United States patent- 692,277, granted February 4, 1902, to Wilbur P. Hall. The patent has only one claim, which is, “in combination with an incubator, a heater,” constructed as specified in the claim. Davis, the appellant, is charged with infringing this patent by using a heater, constructed according to the patent and bought of the appellee company, with an incubator not made or sold by that company.
The case was heard in the court below on an agreed statement of facts, which also constitutes the evidence in the record before us. The
The defense is that the heater was sold separately, without any restriction as to the use to which it might be put, and that this gave Davis the right to use it in combination with his own or with any incubator, however procured.
Davis contends that in the patent nothing novel or patentable is shown about the incubator it describes, that the only patentable features are found in the heater described, that the “incubator” of the patent must be taken to mean “any structure to be heated,” and that he therefore purchased everything really covered by the patent when he bought the heater, But if any doubts could have been raised as to the patent-ability of the incubator and heater in combination, this is the combination which the patent purports to protect, and the one which stands agreed, for the purposes of this case, as protected by a lawful and valid patent. Moreover, the specification of the patent makes it clear that not only an incubator, but an incubator such as is shown and described in the patent, is what was patented in combination with the heater, so that Davis is prevented by the agreed facts from saying that the incubator which he built and used with the heater differed in any material respect from the incubator of the patent.
In Morgan Envelope Co. v. Albany, etc., Co., 152 U. S. 425, 14 Sup. Ct. 627, 38 L. Ed. 500, relied on on Davis’ behalf, what the defendant procured independently of the patentee, and used Avith the patented fixture, was held not an element of the patented combination. Henry v. A. B. Dick Co., 224 U. S. 1, 32 Sup. Ct. 364, 56 L. Ed. 645, is also cited, but it has no bearing on the questions here raised. We find no reason whatever to doubt that the District Court rightly held Davis’ use of the heater with his incubator to have been an infringing use.
The decree of the District Court is affirmed, and the appellee recovers its costs of appeal.