Haggenmacher v. Nelson

88 F. 486, 1898 U.S. App. LEXIS 2808

• Court: U.S. Circuit Court for the District of Eastern Pennsylvania
• Decided: June 22, 1898
• Docket: No. 6
• Status: Published

Opinion

DALLAS, Circuit Judge.

The defendants are charged with infringement of two patents for “apparatus for sifting and sorting flour.” The first of them was granted to the complainant May 27, 1890, as No. 428,907, and reissued June 28, 1892, as No. 11,252. The second (No. 428,908) was a division of the first. The claims of reissue No. 11,252, which are sued on, are as follows:

“(1) In a chop grader, a frame having a gyrating motion, and provided with guides in line with the desired main direction of travel of the material, and cross slats, y, extending part way across its surface between said guides, for causing the material to travel over the said surface, substantially as set forth. (2) In a chop grader, a frame having a gyrating motion, and provided with a sifting surface of perforate material, the guide slats, x, upon its sifting surface, in line with the desired main direction of travel of the material, and cross slats, y, extending part way between said slats, x, for causing the material to travel, substantially as set forth.” “(4) In a chop grader, the combination, with a frame box, provided with an inlet at its upper and outlets at its lower part, of rods pivotally supporting said box, a revoluble device, such as a crank, for imparting a continuous gyrating movement to said box, and a frame supported in said box, and provided with a perforate sifting-surface, and with guide slats, x, and with cross slats, y, arranged on said surface, substantially as and for the purpose set forth. (5) In a chop grader, the combination, with a gyrating frame box, of a series of superposed frames in said box, said frames being provided with guide slats, x, and cross slats, y, for directing the material over their surfaces, and with openings through which the material may pass from the upper to the lower frames of the series, substantially as and for the purpose set forth. (6) In a chop grader, the combination, with a gyrating frame box, of a series of superposed frames in said box, some of said frames being provided with perforate sifting surfaces of various fineness for sifting and grading the material, and alternating with other frames having imperforate conveying surfaces, all of the said frames being provided with guide slats, x, and cross slats, y, for causing the material to travel over their surfaces, substantially as and for the purpose set forth.” “(11) A sieve having a gyrating motion, and provided with line guides in the desired main direction of travel for determining the path or paths of the stock’s travel, and with propelling surfaces between the said guides for effecting the travel of the stock under the gyrating motion of the sieve.”

The claims of patent No. 428,908, which are sued on, are as follows:

“(1) In a chop grader, a frame having a substantially horizontal gyrating motion, and provided with curved guides in line with the desired main direction of travel of the material, and cross slats, y, extending part way across its surface between said guides, for causing the material to travel over the said surface in substantially circular paths, as hereinbefore set forth. (2) In a chop grader, the combination, with a horizontally gyrating circular frame box, of a series of circular superposed frames in said box, the bottom surfaces of said frames being provided with curved guide slats, x, in line with the desired main direction of travel of the material, and with cross slats, y, extending part way between said guide slats, for causing said material to travel, «substantially as set forth.”

But for the question to be presently considered, touching the validity and construction of these patents, no doubt could reasonably be entertained that the infringement charged has been clearly proved. The evidence admits of no other conclusion, and the argument presented on behalf of the defendants- rests mainly, if not solely, upon the theory that noninfringement results from the interpretation of the claims for which they contend. I will dispose of the case with reference to the points made by their brief:

1. Defendants contend, with respect to the first claim of each patent, that the “cross slats, y,” designated in both of these claims, should be taken to include, and were “intended to include, the additional parts, u and v, for turning over the material and evening it,” in which case the defendants’ device would not infringe. But the construction thus proposed is, I think, a forced and unreasonable one. It involves the importation into the claim of language which was not used, and which must be assumed to have been designedly omitted, for in claim No. 3 (not here involved) the parts now sought to be injected into these claims, namely, the ridge, u, or bridge, v, “for turning over and evening the material,” are expressly included. The learned counsel of the defendants has argued that because some of the figures exhibit u and v in connection with, and seemingly as extensions of, the part, y, the latter should be understood as being inclusive of the former; but the patent as a whole forbids acceptance of this understanding. The cross slats, y, and the other parts referred to, are distinctively mentioned, and their respective objects are plainly differentiated. The defense as to claim 2 of patent No. 11,252 has been enforced by the same course of reasoning as that applied to the first claim of each patent; and it is insisted that it maintains the proposition that “cross slat, y, means y with u,” and that, therefore, the defendants “do not infringe claims 1 and 2 of No. 11,252, or claim 1 of No. 428,-908.” I am, as I have said, unable to acquiesce in the reasoning referred to, and consequently cannot adopt the deduction supposed to be derived from it.

2. The defendants have adduced several patents in support of the defense of lack of novelty, and their learned counsel has in argument especially referred to the Robertson, the Jesse, the Hahn, and the Gilbert patents, but by none of these is there disclosed the invention of the presumptively valid patents in suit. Haggemnaeher unquestionably produced a device by which a marked advance in the art was attained, and the testimony of the experts and practical millers is in substantial accord as to its novelty. As was said by an expert witness for the defendants, neither of the exhibits prior to the Haggcn-macher patents embraces every feature of construction along with the special motion of the latter.

3. The attack made upon the validity of the reissue cannot prevail. It is, in my opinion, fully met and overcome by the argument submitted in the brief for complainant, from which I quote:

“While one of the Iwo patents sued upon is a reissue, it is open to none of the attacks generally made upon reissued patents. Defendants’ machine is equally within the claims of the original. All the claims of the patent, except the eleventh, are literally reproduced from the original. The eleventh is predicated on the same invention as the original patent; stating that invention in terms intended to express more clearly that which would, under the ordinary doctrine of equivalents, he the legal effect of the original.”

That such a reissue is within the scope of the statute is, I think, clearly demonstrated by the authorities cited on behalf of the complainant, with which those cited for the defendants do not, upon examination, appear to conflict. Reed v. Chase, 25 Fed. 94; Odell v. Stout, 22 Fed. 159; Powder Co. v. Powder Works, 98 U. S. 126; Eames v. Andrews, 122 U. S. 40, 7 Sup. Ot. 1073; Topliff v. Topliff, 145 U. S. 156, 12 Sup. Ct. 825; Walker v. City of Terre Haute, 44 Fed. 70; Marsh v. Seymour, 97 U. S. 348. Decree for complainant.