Bortree v. Jackson

43 F. 136, 1890 U.S. App. LEXIS 1627

• Court: U.S. Circuit Court for the District of Northern Ohio
• Decided: July 18, 1890
• Status: Published

Opinion

Brown, .1.

The invention in this caso is a very narrow one; and, in view of the state of the art, we think the patent should receive a strict construction. Wo are clear in our opinion that there is no infringement of the second claim, which is for a bustle having coil springs arranged longitudinally, coil springs arranged centrally, and at right angles thereto, with means for holding'the same to any desired adjustment. While the defendant uses coil springs arranged longitudinally, and also coil springs at right angles to these, they are not arranged centrally, at right angles to the central longitudinal coil: but there are three such springs arranged at right angles to the three longitudinal springs, which latter are curved at the top, and at that point are practically parallel with the horizontal springs. They, therefore, do not accomplish the object sought to be obtained by the patent, of giving greater or less amount of fullness to the bustle in the direction of its length. Defendant’s horizontal springs are evidently intended to be contracted or relaxed together. If one or two were contracted, and the third were relaxed, the skirt would be extended, not in the direction of its length, but in that of its breadth, and would inevitably have a one-sided appearance.

If the third claim were construed according to its exact language, and without reference to the specifications, the defendant’s bustle would infringe, since he has a series of coil springs at right angles thereto, with means for holding the same to any desired expansion or contraction, and substantially the whole covered with a suitable fabric. We were at first inclined to give it this construction; but, upon reflection, we are satisfied that, having reference to the words “as and for the purpose set forth,” at .the end of this claim, we are bound to construe it in connection with the specifications, and in view of the object declared by the patentee, “to provide for giving greater or less amount of fullness to the bustle in the direction of its length.” In discussing the effect of the words “substantially as described,” or “substantially as set forth,” it is said in Seymour v. Osborne, 11 Wall. 516, 547:

“Where the claim immediately follows the description of the invention, it may be construed in connection with the explanations contained in the specifications; and, where it contains the words referring back to the specifications, it cannot properly be construed in any other way. ”

So, in The Corn-Planter Patent, 28 Wall. 181, 218, it is said that the words ■“ ‘ substantially as and for the purpose set fqrth ’ throw us back to the specifications for a qualification of the claim, and the several elements' of which the combination is composed.” See, also, Matthews v. Shoneberger, 4 Fed. Rep. 685; Westinghouse v. Air-Brake Co. 2 Ban. & A,,55, 57. In the light of these authorities, we think the third claim should be construed in connection with the declared object of the patentee, and that it should receive substantially the same construction as the second claim, with the addition of the covering of a suitable fabric. This seems, also, to have been the views 'of the learned counsel for the plaintiffs, as stated in his brief.

Now, as the defendant’s bustle is not designed to secure adjustability in the direction of its length, and as he has not arranged his horizontal springs against the central longitudinal coil in such a way as to make it possible to accomplish this result, we think that he cannot be held to infringe. Upon, mature consideration of this case, we have come to the 'conclusion that the bill ought to be dismissed.