SEAMAN, District Judge
(after stating the facts). The original Herron patent, upon which the complainant’s rights are founded, must Tbe regarded as limiting the claim of invention, so far as relates to tlie feature of the sirup cans in a soda fountain, to the so-called " vertical” type or class therein distinctly recognized and described. Both recitals and claims are unmist atable in their showing of this purpose; and, if confirmation were needed, reference to the file' wrapper and contents discloses numerous changes in the claims and argu[576]*576ments thereupon, all of which, carefully avoid any assertion which would embrace the recognized horizontal type, either in form or position, and industriously preserve the vertical distinction. This manifest intention on the part of the inventor and of his solicitor is referable, in my opinion, to their knowledge of, and fear of being-brought into interference with, the prior patent, No. 98,176, called in the record “Matthews Horizontal Can Patent.” There is much controversy in the testimony and arguments over this patent, whether it appears, either from the drawings or specifications, that the sirup cans were removable at the front, or through the top, of the fountain. Rival models are produced, which purport to have been made in exact conformity with the drawings, upon an enlarged scale, — the defendant’s exhibit showing that the cans may be taken out and in through the door at the front, while complainant’s model shows that the margin of space is insufficient to permit such removal; and the defendant further produces test intony of fine measurements and enlarged drawings tending to sustain his claim that if the drawings of the patent are followed literally there is a possibility of removal through the doorway. These nice distinctions are immaterial, in the view which I take of the issue. It is a well-known fact, frankly conceded by the able expert who testifies for complainant, that “patent-office drawings are not generally made to a scale or with the exactness of working drawings,” and are not, therefore, calculated to meet the test of the utmost accuracy in measurement. Upon their face, the drawings of the Matthews patent show the sirup cans of horizontal form and position, “entirely below the cooler,” with a door immediately in their front, and in the lower front portion of the fountain. The common-sense suggestion would seem to be that a way for the necessary and frequent removal of the sirup cans was thereby provided, rather than the inconvenient method of taking through the top, which would generally require the aid of a stepladder, and would make it necessary to take out the ice box, which must be in some way released :rom the “cooling worm” shown to enter it. The apparatus is not complicated, and I am satisfied that a mechanic attempting to follow the drawings for construction under it would infer, without the aid of specifications, that the cans were to pass through the door. Its availability, if not absolute necessity, would be a sufficient definition of that purpose; and the absence of a statement to. that effect in the specifications would not send him into close measurements and comparison of parts of which he was not authorized to infer exactness, to ascertain the intention. For the purposes of this consideration, it is not essential to inquire into the validity of the Matthews patent, — whether its specifications are so clear that they actually pre-empt this method of employing horizontal sirup cans for introduction through the front of the fountain, —but simply to ascertain whether the plan and drawings gave clear disclosure of sugh method, and were so regarded and accepted by the subsequent inventor. He could not then broaden his invention of a means for so introducing- a vertical can as to include and monopolize the prior adaptation for the horizontal can. It is evident that the applicant for the original Herron patent so treated the Matthews [577]*577device, and excluded from his application any claims which would comprise the horizontal feature, both to save conflict, and because he could not otherwise make the necessary oath that he uvas the first discoverer, and “does not know, and does not, believe, that the same was ever before known or used.” The application was prepared and prosecuted by a solicitor of experience and ability in the patent law, and it is fair to assume that, the well-known requirements for the broad claim would have entered into it, but for the consciousness that this inventor was not prior in adopting this method for the recognized type of horizontal cans in a soda fountain. The defendant’s device is clearly of the horizontal type, and strictly conforms to the letters patent of the United States, No. 476,589, granted to him June 7, 1892, on application filed October 31,1891. Under the definitions above stated, his device was not an infringement of the original Herron ¡latent. Tin* doctrine of equivalents is not applicable to charge infringement of the claims there stated, in the light of the prior art, and the circumstances.shown. And for the same reasons the sixth claim of the reissue patent is not infringed. But the terms of the first, second, and third claims of the reissue are so broadened that, they would probably cover the defendant’s device, and, upon that assumption, the only question is whether they are valid amendments to the original claim, by way of reissue. In my opinion, the answer to this inquiry is clearly pointed out by the uniform line of decisions of the supreme court in respect of the right of reissue, and the patent office was without authority to grant tiiese claims. Upon the ¡(remises stated, the terms of the original patent distinctly excluded these broad claims, and therefore excluded any charge for this infringement founded thereon. As said in McClain v. Ortmayer, 141 U. S. 419, 422, 12 Sup. Ct. 77:
‘‘Xoilimg is better settled In the law of patents than ihat the patentee may claim the whole, or only a part, of his invention, and that, if he only describe and claim a part, he is presumed to have abandoned the residue to the public.”
For reasons which have been stated, the omission of any broad claims appears to have been intentional, and the attempt, by the testimony of the solicitor, to show mistake or inadvertence on his part in the interpretation of the word “vertical,” is neither satisfactory nor plausible. In Dobson v. Lees, 137 U. S. 258, 265, 11 Sup. Ct. 73, the general rule is clearly stated:
•‘A reissue is an amendment, and cannot be allowed unless the imperfections In the original patent arose without fraud, and from inadvertence, accident, or mistake, llev. St. 8 4010. Hence the reissue cannot be permitted to enlarge the claims of the original patent by including matter once intentionally omitted.”
In the argument; for complainant-, much .stress is placed upon the fact that application for the reissue was made “within nine months and ien days after issuance of the original patent,” and therefore within a time which many decisions have approved as not objectionable for laches. But this is only one of the elements to be considered on sucli application, and will not, warrant a reissue to include claims which were deliberately omitted, without inadvertence, nor in [578]*578a case in which, adverse rights of third parties had intervened.
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SEAMAN, District Judge
(after stating the facts). The original Herron patent, upon which the complainant’s rights are founded, must Tbe regarded as limiting the claim of invention, so far as relates to tlie feature of the sirup cans in a soda fountain, to the so-called " vertical” type or class therein distinctly recognized and described. Both recitals and claims are unmist atable in their showing of this purpose; and, if confirmation were needed, reference to the file' wrapper and contents discloses numerous changes in the claims and argu[576]*576ments thereupon, all of which, carefully avoid any assertion which would embrace the recognized horizontal type, either in form or position, and industriously preserve the vertical distinction. This manifest intention on the part of the inventor and of his solicitor is referable, in my opinion, to their knowledge of, and fear of being-brought into interference with, the prior patent, No. 98,176, called in the record “Matthews Horizontal Can Patent.” There is much controversy in the testimony and arguments over this patent, whether it appears, either from the drawings or specifications, that the sirup cans were removable at the front, or through the top, of the fountain. Rival models are produced, which purport to have been made in exact conformity with the drawings, upon an enlarged scale, — the defendant’s exhibit showing that the cans may be taken out and in through the door at the front, while complainant’s model shows that the margin of space is insufficient to permit such removal; and the defendant further produces test intony of fine measurements and enlarged drawings tending to sustain his claim that if the drawings of the patent are followed literally there is a possibility of removal through the doorway. These nice distinctions are immaterial, in the view which I take of the issue. It is a well-known fact, frankly conceded by the able expert who testifies for complainant, that “patent-office drawings are not generally made to a scale or with the exactness of working drawings,” and are not, therefore, calculated to meet the test of the utmost accuracy in measurement. Upon their face, the drawings of the Matthews patent show the sirup cans of horizontal form and position, “entirely below the cooler,” with a door immediately in their front, and in the lower front portion of the fountain. The common-sense suggestion would seem to be that a way for the necessary and frequent removal of the sirup cans was thereby provided, rather than the inconvenient method of taking through the top, which would generally require the aid of a stepladder, and would make it necessary to take out the ice box, which must be in some way released :rom the “cooling worm” shown to enter it. The apparatus is not complicated, and I am satisfied that a mechanic attempting to follow the drawings for construction under it would infer, without the aid of specifications, that the cans were to pass through the door. Its availability, if not absolute necessity, would be a sufficient definition of that purpose; and the absence of a statement to. that effect in the specifications would not send him into close measurements and comparison of parts of which he was not authorized to infer exactness, to ascertain the intention. For the purposes of this consideration, it is not essential to inquire into the validity of the Matthews patent, — whether its specifications are so clear that they actually pre-empt this method of employing horizontal sirup cans for introduction through the front of the fountain, —but simply to ascertain whether the plan and drawings gave clear disclosure of sugh method, and were so regarded and accepted by the subsequent inventor. He could not then broaden his invention of a means for so introducing- a vertical can as to include and monopolize the prior adaptation for the horizontal can. It is evident that the applicant for the original Herron patent so treated the Matthews [577]*577device, and excluded from his application any claims which would comprise the horizontal feature, both to save conflict, and because he could not otherwise make the necessary oath that he uvas the first discoverer, and “does not know, and does not, believe, that the same was ever before known or used.” The application was prepared and prosecuted by a solicitor of experience and ability in the patent law, and it is fair to assume that, the well-known requirements for the broad claim would have entered into it, but for the consciousness that this inventor was not prior in adopting this method for the recognized type of horizontal cans in a soda fountain. The defendant’s device is clearly of the horizontal type, and strictly conforms to the letters patent of the United States, No. 476,589, granted to him June 7, 1892, on application filed October 31,1891. Under the definitions above stated, his device was not an infringement of the original Herron ¡latent. Tin* doctrine of equivalents is not applicable to charge infringement of the claims there stated, in the light of the prior art, and the circumstances.shown. And for the same reasons the sixth claim of the reissue patent is not infringed. But the terms of the first, second, and third claims of the reissue are so broadened that, they would probably cover the defendant’s device, and, upon that assumption, the only question is whether they are valid amendments to the original claim, by way of reissue. In my opinion, the answer to this inquiry is clearly pointed out by the uniform line of decisions of the supreme court in respect of the right of reissue, and the patent office was without authority to grant tiiese claims. Upon the ¡(remises stated, the terms of the original patent distinctly excluded these broad claims, and therefore excluded any charge for this infringement founded thereon. As said in McClain v. Ortmayer, 141 U. S. 419, 422, 12 Sup. Ct. 77:
‘‘Xoilimg is better settled In the law of patents than ihat the patentee may claim the whole, or only a part, of his invention, and that, if he only describe and claim a part, he is presumed to have abandoned the residue to the public.”
For reasons which have been stated, the omission of any broad claims appears to have been intentional, and the attempt, by the testimony of the solicitor, to show mistake or inadvertence on his part in the interpretation of the word “vertical,” is neither satisfactory nor plausible. In Dobson v. Lees, 137 U. S. 258, 265, 11 Sup. Ct. 73, the general rule is clearly stated:
•‘A reissue is an amendment, and cannot be allowed unless the imperfections In the original patent arose without fraud, and from inadvertence, accident, or mistake, llev. St. 8 4010. Hence the reissue cannot be permitted to enlarge the claims of the original patent by including matter once intentionally omitted.”
In the argument; for complainant-, much .stress is placed upon the fact that application for the reissue was made “within nine months and ien days after issuance of the original patent,” and therefore within a time which many decisions have approved as not objectionable for laches. But this is only one of the elements to be considered on sucli application, and will not, warrant a reissue to include claims which were deliberately omitted, without inadvertence, nor in [578]*578a case in which, adverse rights of third parties had intervened. Several months prior to the application for this reissue, the defendant had not only perfected his apparatus and applied for his patent, hut had placed the goods so made upon the market, and had obtained extensive sales and popularity; while there is no pretense that the complainant’s construction has proved successful, or entered into general use. In this aspect, the case of Coon v. Wilson, 113 U. S. 268, 5 Sup. Ct. 541, is clearly in point, both in the state of facts and the ruling. The unanimous opinion of the court is thus expressed, through Mr. Justice Blatchford:
“Although this reissue was applied for a little over three months after the original patent was granted, the ease is one where it is sought mainly to enlarge the claim of the original patent by repeating that claim and adding others; where no mistake or inadvertence is shown, so far as the short or sectional bands are concerned; where the patentee waited until the defendants produced their continuous band collar, and then applied for such enlarged claims as to embrace the defendants’ collar, which was not covered by the claim of the original patent; and where it is apparent, from a comparison of the two patents, that the reissue was made to enlarge the scope of 1he original.”
In that case tbe original patent was for an improvement in collars, originally claiming only a collar with short or sectional bands; that is, a band along the lower edge of the collar, made in parts or sections, and having a graduated curve. In a reissue, certain claims were so amended as to cover a continuous band, with a graduated curve, but not in sections, and, so framed, would bring the defendants’ collars, introduced meantime, into infringement. The case is apposite in every material respect, and the doctrine there pronounced— which is in accord with all the decisions, at least since Miller v. Brass Co., 104 U. S. 350 — must control here. See Ives v. Sargent, 119 U. S. 652, 7 Sup. Ct. 436; Parker & Whipple Co. v. Yale Clock Co., 123 U. S. 87, 8 Sup. Ct. 38. The final allowance of the reissue by the patent office appears to have been based upon Topliff v. Topliff, 145 U. S. 156, 12 Sup. Ct. 825; but I am unable to find support for it, either in the circumstances or the reasoning of that case. The numerous citations to that end in complainant’s brief are plainly distinguishable, and do not apply to the state of facts presented here.
I am satisfied that the claims of the original patent were intentionally limited; that they were stated as broadly as the actual invention, and to the full extent intended by the applicant; that the amended claims enlarge the scope of the patent, and were so designed in the view and for the purpose of overreaching the defendant’s device; and that the reissue is therefore void. It is true that the defendant had examined the original Herron patent, and an apparatus constructed under it, before making his own alleged invention; and on that fact counsel for complainant invokes the doctrine of “innocent purchasers for valuable consideration, and without notice,” to bar this defendant from relief against the reissue. Any such general doctrine is clearly inapplicable, as there is no pretense that there was notice, either of any mistake in the claims, or of assertion at that time of enlarged claims, or of intention to apply for reissue. The bill must be dismissed for want of equity, and it is so ordered.