247 F. 342 | 2d Cir. | 1917
This is a suit in equity for infringement',of letters patent No. 737,179, for screwdrivers. There are but two claims, which read:
“L As a new article of manufacture, the herein described screwdriver, consisting' of the Wade, the round shank, conoidal bolster, handle web, and butt, s'Jl formed in one piece, and the handle scales secured to the said handle web; the handle portion being elliptical in cross-section' for the most part, but gradually merging with the conoidal bolster by a gentle taper into the circular toob-hank, thus providing for a firm grasp, while facilitating a nice control by pressure of the finger and thumb upon the shank of the tool.
‘‘(2) As a now article of manufacture, the herein described screwdriver, consisting of the blade, the round shank, conoidal bolster, handle web, and butt, all formed in one piece of drop-forged metal shaped as described; the handle portion being elliptical in cross-section for the most part, but gradually merging with the. conoidal bolster by a gentle taper into the circular tool shank, thus providing for a firm grasp, while facilitating a nice control by pressure of the finger and thumb upon the shank of the tool.”
"8. The parties of the second part further agree to respect the validity of said letters patent No. 787,17!), and io hereafter avoid any and all infringement, directlj and indirectly, thereof, either by the manufacture of screwdrivers of the forms particularly complained of by the party of the first part and sold by the parties of the second part to the party of the first part or otherwise.”
This covenant compels the defendant to admit in this case the validity of the patent and that the screwdrivers made by it before the settlement were infringements; but it may show, if it can, that the screwdrivers now made by it are not infringements, and for that purpose may refer to the prior art and to the file wrapper. American Specialty Co. v. New England Enameling Co., 176 Fed. 557, 100 C. C. A. 193.
The District Judge regarded the exclusive patentable feature of the complainant’s screwdriver to be the conical bolster tapering gently into the round shaft, and he held that the defendant did not infringe, because it put a projecting bead at this point. Assuming the construction of the claims to be correct, we think the defendant’s screwdriver does infringe the complainant’s patent, because it has the tapering conical
Decree reverse^.