Marsh v. Quick-Meal Stove Co.
51 F. 203
U.S. Circuit Court for the Dis...
1892
Check Treatment
Thayer, District Judge,

(charging jury, j I have given this ease such an examination as I have been able to in the short time that has elapsed since the plaintiff closed his ease, and I have come to the following conclusion : It is the province of the court to construe the claims of tho *204patent that has been offered in evidence. That construction, of course, is to be made in the light of such expert testimony as has been offered. In the Marsh patent the commingling chamber, D, is both described and claimed as a distinct and independent part (having special functions) of the combination covered by the first claim of the Marsh patent. The commingling chamber is provided with a separate needle valve marked on the drawing, C, to operate it, and both the commingling chamber and the accompanying needle valve seem to be necessary to enable the automatic lighting tube, F, to perform one of the functions that the inventor had in view; that is to say, the function of heating the side burner, K, for initial lighting purposes. Now, it may be true, and I think it is true, that the commingling chamber in the Marsh patent, with its valve, C, is a useless device; but the fact remains that it has been described with great detail, and is clearly claimed as an integral part of the Marsh combination or invention. His patent must accordingly be limited to a combination containing that part; that is to sa}’, to a combination containing a commingling chamber in addition to the ordinary commingling chamber or chambers attached to the burners. In the Quick-Meal stove this separate and independent commingling chamber is wanting. It is obvious that the relighting tube in both modes of construction acts upon the same principle, and subserves the same purpose. In the Qdick-Meal stove the tube is continuous from one light to the other, while in the Marsh stove it is broken, and passes the flame through the commingling chamber, and out through the small orifice that is marked V on the drawing. But this concession does not alter the fact that Marsh has described and claimed a part not found in the Quick-Meal mode of construction. Having so described and claimed it, it becomes one of the necessary elements of his combination, though it is practically useless. The licensee, the defendant in this case, is not here alleging that the Marsh patent is void; that he could not do under his license. He simply says: “I have not used the patented device covered by my license; ” and there is no evidence, in the opinion of the court, to show that he has used it. ■ The result is that you, gentlemen of the jury, will be directed to return a verdict in favor of defendant. Plaintiff thereupon took a nonsuit with leave.