[1, 2] Hall invented a successful incubator. He was not a pioneer in this art, as incubators had been known before, operating upon substantially the same principle. Whether he could have obtained a broad claim for his contribution to the art it is unnecessary to decide, as he received a patent with a single claim, limited to the apparatus described and containing 13 separate and distinct elements. Unquestionably the defendant has omitted three of these elements. Even if the complainant were entitled to a broad application of the doctrine of equivalents, that rule is not applicable here because some of the elements have been omitted altogether and nothing *110substituted therefor. It may be that the claim was unnecessarily specific, that elements which are unnecessary are found there and that the apparatus will operate without these elements. Concede all this and it does not aid the complainant. Hall saw fit to include in his combination all the elements found in the claim. One who does not use that combination does not infringe. The court has no more right to eliminate “an adjustable bracket-arm on.the support” than it has to eliminate “a heater having a water-jacket;” one is as much an element of the combination as the other. We are dealing with the claim as we find it, not as it might have been, and agree with the District Judge in holding that the claim is not infringed. This proposition has been frequently sustained. Among the cases in this.circuit may be noted Dey Register Co. v. Syracuse Recorder Co. (C. C.) 152 Fed. 440; affirmed 161 Fed. 111, 88 C. C. A. 275; Consolidated Engine Co. v. Landers, 160 Fed. 79, 87 C. C. A. 235.
The decree is affirmed with costs.
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