245 F. 463 | 6th Cir. | 1917
(after stating the facts as above).
We have to meet the usual questions of validity and scope, and we may go at once to that one of the earlier patents which, when
It is insisted that claim 5 reads upon Grohmann, and is therefore invalid. Plaintiffs’ counsel is charged with admissions to this effect; but, on the contrary, the record shows that, while frankly conceding the language of the claim to be capable of such a reading, he contended that it should not be so interpreted, and that, when rightly construed, it was valid. The file wrapper history almost compels the conclusion that this claim should not be read upon Grohmann, because Grohmann was cited and considered, and, in spite of this reference, the claim was allowed. It follows that both the Patent Office and Mees must have joined in the intent that the claim should not be so read as to make a device like Grohmann an infringement; but this conclusion does not necessarily imply that the claim is valid. If we say that its calls for the inlet valve and the piston valve rightly imply any one of the first three distinctions above recited, we must think that no one of the three involves invention in any sense sufficient to sustain claim S, with any construction of which the language of claim .5 is capable. To change from the hit and miss method is only to
The remaining question of validity is whether the limitation to a simultaneous throttling of air and gas ports, as found in claims 6, 7, and 8, imparts patentability. It plainly would, if it was new in itself, but since it had been accomplished in other associations, the question becomes more doubtful. The record presents several earlier patents which throttled air and gas simultaneously. In one (Crossley, British), there was a piston valve in a cylindrical casing with registering air and gas ports, the .valve was rotated continuously through connection with a rotating part of the engine and it was reciprocadlo slightly under governor control, this longitudinal motion throttling both air and gas ports. This piston valve was not on or associated with a cylinder inlet valve, but was constantly open into a mixing chamber, fronx which passages exteixded to the various cylinder heads. In another (Tangyes, British), a valve of this form was rotated under governor control and thereby throttled air and gas ports simultaneously, but it had no reciprocating motion, and it also was always open into mixing chambers at a distance from the cylinder inlet valves. In others (e. g., Klein), air and gas were both throttled, ixot by any rotary motion of the piston, but by regulating the extent of its longitudinal stroke. It would not be demonstrably wrong to say that there was no invention in adding to the Grohmann device the additional and known modifications by which a piston valve would throttle both air and gas instead of gas alone; but we cannot be satisfied to adopt that conclusion. It is not merely a substitution of an equivalent for one element of Grohmann; adding this function, to Grohmann involves considerable reorganization. His diaphragm will be unnecessary and naturally discarded. His cylindrical chamber must be exteixded so as to receive the air ports, the piston correspondingly extended and provided with ports and the air entrance passages rebuilt. This combination in one structure, unquestionably first made by Mees, of the inlet valve and its stem, the piston valve in immediate association with it, reciprocating with it to open and shut both air and gas ports' with each suction stroke and revoluble under governor control to throttle both air and gas ports, had considerable theoretical operating advantages over any previous combination, and at least some practical advantages; the Grohmann patent was published in 1890, and, although there was great activity in this art during the intermediate 13 years, no one before Mees had thought of modifying it as he did; the plaintiff, a large manufacturer of gas engines of this general class, has either found this device-desired or has thought proper to supply it in some of the largest in
In the conclusions so far stated, we concur with the court below
It is not directly important i:E the suction stroke does not open or close air and gas ports at the same instant or to the same extent. The mixture is formed by all the air and gas entering through all the ports uncovered during the whole stroke. The word “simultaneously” in its first use in each of these three claims, has no reference to air and gas ports, but only to the concurrent reciprocation of inlet valve and piston valve.
Comparison of plaintiffs’ patent with the specific form used by defendant also confirms this same conclusion. The patent drawings show some instances where air and gas ports will have the same open area all the time, and show another form where they will not, but where the throttling motion in its rotary progress will he dosing an open air port both before and after it is closing an open gas port. It is true this alternative construction may have special reference to claim 5, but at least it illustrates that Mees intended to adjust the longitudinal position of air and gas ports as might be advisable. Defendant’s form made express provision for such adjustment manually. His air and gas ports in his piston valve were of the same longitudinal extent, but in his stationary cylindrical chamber the gas ports could be varied from nothing up to a size as large as ports in the piston. It follows that the effective gas and air ports (the registering areas of chamber ports and piston ports) in defendant’s device might be of precisely the same size, or that the gas ports might be of much less size, according to the quality of gas that was to be used in a given installation. The particular use which was proved was with a rich gas, and the adjustment was such that a vertical stroke took in 19 parts of air to 1 of gas; but Mees, who specifics nothing on this subject, could just as well build his device to take in 19 parts of air and 1 part of gas (as defendant did), and the defendant could just as well adjust its existing device to take in equal parts of air and gas (as Mees did). It is not reasonable to suppose that a dissimilarity so fortuitous can be vital.
“In equal parts,” as used in the specification and in claim 7, necessarily means “in equal fractions” or “in equal proportions,” and not “in equal area.” It is the whole theory of the patent, so far as it pertains to a throttling “in equal parts,” that this is for the express purpose of maintaining'a constant quality; and if it were considered that whenever two square inches are throttled off on the air ports two square inches must also be cut off on the gas ports, it will result that the quality would always be changed — excepting in the one possible, but rather improbable., instance where air and gas ports were of the same initial total area.
Giving to claims 6, 7, and 8 the construction which we have approved in the foregoing paragraphs, infringement by the defendant is not to be questioned.
If, within a time to be fixed, by the District Court, plaintiffs disclaim claim 5 and file in that court certified copy of such disclaimer, they may have the usual decree for injunction and accounting on claims 6, 7, and 8. They will recover the costs of this court, but not of the court below. Herman v. Youngstown (C. C. A. 6) 191 Fed. 579, 587, 588, 112 C. C. A. 185.
The decree is set aside, and the case remanded for further proceedings in accordance herewith.
It is said that the examiner’s letter stated that Mees’ air and gas ports must be “formed in a certain way,” and that Mees did not protest; but this was with reference to a specific claim and construction, later abandoned and canceled from the drawings.
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