441 izingbeat there results from the sulphur and: the gum the substance called vulcanite. Accordingly,. it has not been claimed in this case that the excess of sulphur employed. in the manufacture of the defendant's discs goes to make refractory matter as was found, to be the fact in the two cases referred to. Here the contention has been that the excess of sulphur used is a mere adulterant; but, as already stated, this position is not supported by the evidence. For these reasons, it must .be held that: the plaintiff .has failed to prove infringement, and' the bill is dismissed, with costs.
ADAIR
v.
THAYER.
(Circuit Court, S. D. New York. -----, 1880.
In Equity. Andrew J. Todd, for complainant. John Van Sant:'oord and John S. Washburn, for defendant. WHEELER, D. J. This suit is founded upon re-issued letteN patent No. 6,964, dated February 29, 1876, granted to the orator for an improvement in pumps. Before his invention single-acting pumps, cast in one piece, with open water heads, through which the piston and valves could be withdrawn and replaced readily, had been constructed; but all double-acting pumps, so far as has been shown, had been made in detached portions, were complicated, 9,nd their parts difficult of access. He devised a double-acting pump, with a. piston cylinder and an open cylinder beside it for the valves below the piston, both below an open water head, through which the piston and those valves could be readily removed
449
REPORTER.
'alid replaced; a,nd with another short cylinder beside and opening into the upper part of the piston cylinder, for one of the valves above the piston, and a floating top to the piston cylinder, constituting the other valve above the piston, all the ,stationary parts of which could be cast in one piece, and all the moving parts of which would, when once in operation, be covered with and made. air-tight by the water. The patent was intended to cover these improvements. The specifica.tioncommences by stating that the inventibnconsists inimprovementsin double-acting 'pumps, and describes the parts constituting the pumps as improved, their objects and modes of operation. There are five claims, the second of which only is claimed to be infringed, and that is for the "combination of the piston cylinder, the valve chamber and its valves, by which the water is supplied to and discharged from the lower side of the piston, the water head, and a cylinder cover, which is removable from the pump through the open water head, substantially as described." There cannot be a double-acting pump without two sets of valves-one below the piston, through which the water is drawn when the piston ascends, and another above the piston, through which the water is drawn when the piston descends. Only one pair, the one below the piston, is specifically mentioned in that claim. That pair, with the other parts specifically mentioned in the claim, and without the pair above the piston, not would constitute a single-acting pump only. For such a pump the claim could not be maintained, because of lack of novelty; and as a claim for such a pump it clearly would not be infringed by the pump of the defendant. The defendant argues and insists that, as the inventor separated his claim into parts, each part must sta.nd by itself, and be held to cover only devices mentioned in it. If this construction should be adopted, the patent, so far as this case is concerned, would be defeated. The patent is a gmnt, and is to be fairly and liberally construed, in favor of the grantee, to effectuate the intention of the partles to it. This is the settled doctrine in this country. Construing according to this rule, the whole subject of the patent is to be Ivoked at.
'ADAIR V. THAnBo
443
It is for an improvement in double-actirig.,putnps, and has no reference to single-acting pumps. The claim must be read as if it said, for the combination, in Ilr double-acting pump, such as had been described, of the parts mentioned. This saves the patent, and saves the claim as a claim for the combination of the parts mentioned in such a pump. There they work together, and are' not a mere aggregation. The defendant sells a. pump which has an open cylinder be" side the piston cylinder, for the valves below the piston, both of which are below an open water head, through which the piston and these valves can be readily withdrawn and re" placed; and another cylinder, beside the piston cylinder, for the valves above the piston, opening into the water head, extends over it, with a fixed cover to the piston cylinder, so that the valves above the piston can be worked; all the stationary parts of which are cast in one piece, and all the moving parts of which are, when in operation, under· the water, and made air-tight by the water, and constituting a double-acting pump. Here are all the elements of the com. bination described in the second claim of· the patent, each doing the same thing in the same way' as described ip. the corresponding parts of the specification, except the cylinder cover of the piston cylinder. As to that, in the orator's pump, it operates during the down stroke of the piston, as Ii. cover for that cylinder, without which the valves 'above the piston could not work at all; and, in the defendant's pump, it does precisely the same thing, during the corresponding movement, without which the valves above the piston could not work there at all. In the orator'spump.it can be hauled up with the piston, thr,ough the open: water head,: as far as the fastenings about the piston-rod above the pump ,will permit. In the defendant's pump it is fastened down to its place by braces from the supports of the piston-rod above the pump, but is readily removable by removing those braces, and removable through the open water head. To free it wholly from the rest of the pump, the fastehings of the piston-rod, ahove the pump, must be removed in each case; so that element of the combination performs one oflhe in the
QDERA.L REPORTER.
the same manner as in the orator's, and in the manner assigned to it in that claim. That part of the orator's inventionllaEi been appropriated to the construction of the defendant's pu:tnp. It is not necessary, in order. to constitute infringement of a.. combination patented as such, .that the whole oombination should be used. If a part of it only, that, separate from the rest, was new and ,patentable to the inventor, is used, taking that part is an infringement· pro .tanto., Lister v. Leather, 8 Ell. & B. 1004; Sellers v. Dickinson, 5 W. H. & G. Exch. 811,,312. Here the whole of this part of the patented invention is taken for one purpose, but not for alI; It is, none the less taken, however; and the taking is none the less an infringement because it is not takeufor all purposes. The defendant's pump is, probably, in some respects, an improvement upon the orator's, but that is no excuse for taking that part which the orator invented, and is not claimed to be. It is said that, as double-acting pumps were well known before, the orator could only have a patent for his particular form, and that the defendant's pump is of different form, and does not infringe. Railway Co. v. Sayles, 97 U. S. 554. And the statements of Mr. Justice Bradley, in the opinion of the court,are cited in support of' that argument. Those statements are very applicable to cases like this. It is to be noticed that each inventor is there said'to be entitled to his own specific form only so long as it differs from those of his competitors, and does not include theirs. Here the defendant has included a part of the orator's specific form of double-acting pump, and cannot shield himself from being adjudged an infringer to that extent. Let there be a decree for an injunction and an account, according to the prayer of the bill, with costs.
PUJl1.J>, in
To STEBBINS HYDRAULIO ELEVATOR 'MANUF'a CO. and another v. STEBBINS. (Oircufe Ooure, 8. D. NeUJ Y{J1'k. -,1880.) 132,111, October 8, 1872, for" improvements in hydraulic elevators," held, under the circumstances of this case, 'Me ""fringed by an apparatus constructed according to patent No. 172,896, issued' Februaryl, 1876, or patent No. 181,113, issued August 15,1876, for" improvements in hydraulic elevators." 2. PATENT No. 132,112, issued October 8, 1872, for "improvements In I!afety devices for hydraulic elevators," held infringed. 3. PATENTS Nos. 172,896 AND 181,113, held, not improvements in or of, or in aid of, any of the inventions or improvements patented by patents Nos. 132,111 and 132,112. L
PATENT No.
Arthwr V. Briesen, for plaintiffs. George W. Wingate and Francis Forbes, fqJ;defendant. BLATCHFORD, C. J. Letters patent No. 132,III were to the defendant, October 8, 1872, for "improvements in hy. draulic elevators." Letters patent No. 132,112 were issued to him on the same day for "improvements'in safety devices for hydraulic elevators." On the fourth of November, 1872, he and two other persons, being then the owners.of sfJ,id patents, assigned, by an. instrument in writing, the said two patents to "The Stebbins Hydraulic Elevator Machine Manufacturing Company," a California corporation. One of the Jllaintiffs, "The Stebbins Hydraulic Elevator Manufacturing Company," is alleged in the bill to be a California corporation, and the said assignment is alleged in the bill to have been made to it. The answer appears to admit that such assignment was made to the plaintiff corporation, and no point is made that it was not, or that it was made to another corporation. But there is no explanation as tQ the discrepa.ncy of name by the introduction of the word "machine" into the name in the assignment. The parties, however, seem to treat the corporation assignee as being the corporation plaintiff. 'The assignment, after assigning to the aS81gnee all the