158 F. 103 | U.S. Circuit Court for the District of Southern New York | 1907
Upon the hearing it struck me that the complainant had no case, unless he was entitled to a construction of patent No. 1 in suit, which would prevent any trespassing upon the broad monopoly of a rotary shock absorber as an adjunct to vehicle springs. As I listened I could not think that the situation disclosed such a monopoly. Upon taking the matter up again, my first impressions are intensified. In the original patent the inventor disclosed three ways of using friction to retard shocks and claimed their combined use produced from a unitary motive power. He neither said nor claimed that any one of them would do what he wanted to do. The third described means was incidental to and supplemental of the others. He had no notion that alone it was all sufficient. In his reissue he admits that claims 1 and 2 of his original patent were too broad. He discarded them, and adopted claim No. 6 as the basis of his reissue. This he calls “No. 11” in his reissue. From that he carves out the 10 claims upon which he sues, but fails to put No. 11 at issue. I cannot avoid the conclusion that, by narrowing the number of means, he broadens the scope of his invention. He has not therefore reissued for the same invention. The patentee’s action does not, to my mind, savor of a square deal with the rest of the community. Whatever advantages the complainants can get in a business way they are entitled to, but I cannot feel that the patent law should be put at their disposal in that struggle.
I can see no merit in the latter part of the case, which deals with the trade-mark and unfair competition. It was not pressed in the application for preliminary injunction, nor in the final proofs, nor at my hearing. Complainant now says that it has registered “Absorber” as a trade-mark at Washington, but such action does not change my views. Reasons for the conclusion which I have reached are as plentiful as blackberries in the season, but experience has taught me that, if I begin to set them down upon paper, there will be no end in sight,
Let the bill be dismissed, with costs.
