BAKER, Circuit Judge
(after stating the facts as above). If the decree cannot be sustained by an application of the law to the facts admitted by appellant in her bill and in her answers to appellee’s interrogatories, the cause must be remanded for trial in due course. Undoubtedly the purpose of authorizing interrogatories was to enable the court to make a summary disposition of a cause by applying the law to an admitted state of facts; but, when the facts are not admitted, neither that rule nor any other warrants a summary disposition on affidavits or other untested showings by the party moving for the summary disposition, in lieu of proofs duly taken with proper opportunity for the adversary to cross-examine. We therefore disregard the file-wrapper and the patents tendered by appellee, and consider only those facts which stood admitted by appellant upon the record prior to appellee’s motion for a decree of dismissal.
[1, 2] While this motion for a decree upon the facts, as admitted by appellant upon the record, is not a demurrer to the bill, yet the principles that are applicable to a demurrer should be applied, for the reason that appellant’s answers to the interrogatories are the same in effect as if she had. charged in her bill that appellee’s infringement consisted solely in the manufacture and sale of the protectors which were identified and described in the interrogatories. And the rule with respect to a demurrer to a bill for infringement of letters patent is well settled. Lange v. McGuin, 177 Fed. 219, 101 C. C. A. 389; Krell Auto Grand Piano Company v. Story & Clark Company (C. C. A.) 207 Fed. 946. If a bill, in and by its own averments, states a prima facie case, that case cannot properly be overthrown by the chancellor merely on the ground that he judicially knows of facts that would support an answer. His judicial knowledge must go farther and be so broad and all-embracing that he can properly hold that no facts exist that would tend to controvert the supposed answer and support a replication and the bill. This is so because, if such facts exist, the complainant is entitled to a hearing where he can present and argue the facts, and such a hearing cannot be had on a demurrer to the bill.
[3] Applying this rule to the admitted facts, we have no difficulty in sustaining the decree. The description of the yoke portion of appellant’s patented article shows tapering plaits which have the effect of giving the surface of the yoke a spheroidal form. And the claim makes this an indispensable characteristic of the yoke portion. So it is immaterial what, if any, disclaimers appellant was compelled to make during the prosecution of her-application through the patent office, or what were the teachings and disclosures of the prior art. If it were [341]*341admitted that appellant was the absolute pioneer in protectors of this character, and was in fact the first inventor of plane as well as spheroidal shapes, still it is the province of courts only to construe claims, not to reconstruct them. And it would require an entire reconstruction of the claim to eliminate what appellant has made an essential element, namely, the spheroidal form of the'yoke portion; and inasmuch as appellant admits that appellee has never made or sold protectors except those in which all of the parts have plane surfaces, no testimony with respect to the utility, novelty and commercial success of appellant’s article, and no exposition of the prior art by experts, could alter the result, which is noninfringement.
The decree is:
Affirmed.
Free access — add to your briefcase to read the full text and ask questions with AI