Ashcroft v. Holdings

2 F. Cas. 23, 11 O.G. 879

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: April 13, 1877
• Status: Published

Opinion

SHEPLEY, Circuit Judge.

The defense in this case is based upon the alleged want of novelty in the invention described in the letters- patent granted to William Besehke and others, August 14, 1866, No. 57,245, “for an improved method of using explosive fluids for the production of light and heat,” and also upon a denial of any infringement of the Besehke patent. The question of infringement depends upon the construetiofa to be given to the Besehke patent. In view of the state of the art at the date of the patent, as well as upon what is clearly described in his specification and claimed in his claims, it appears to be clear that the invention of Besehke is described and claimed as consisting in a lamp, or can, or barrel, packed in part with an absorbent or finely granulated material, (excluding sand and including saw-dust, cotton, beads, shot, gravel, asbestos, and their equivalents,) and over them “a body of wire-gauze or perforated thin plate, either rolled up like paper scrolls or put flat together like book-leaves.” The defendant sells a lamp for heating purposes, manufactured under letters patent issued to Thomas W. Houchin. May 4, 1875, called Houchin’s patent pocket cook-stove. The lamp is made of metal, and is filled with cotton covered with a layer of asbestos, or of porous fire-proof cement of which asbestos is an ingredient. The upper opening is covered with one thickness of wire-gauze. There is no tube as distinguished from the body of the lamp, and there is no “body of wire-gauze or perforated thin plate, either rolled up like paper scrolls or put flat together like book-leaves.” Wherever in the Besehke patent wire-gauze or perforated thin plate is alluded to, it is in the form of a scroll or of layers, like the leaves of a book, and after constantly repeating this description throughout the patent, and never using the words without some description of a scroll or layers, except in one instance, and then “wire-gauze combined and shaped as mentioned,” the patentee adds, “I disclaim also the simple use of mere wire-gauze or perforated thin plate not rolled up like paper scrolls or put flat together like book-leaves.” The wire-gauze or perforated thin plate, described in the claim of the Besehke patent, must be construed as referring to wire-gauze or perforated thin plate rolled up like paper scrolls, or put flat together like book-leaves, as described in the specification, and upon this construction of the claim in the patent the defendant does not infringe. Bill dismissed with costs.