Kittle v. Merriam

14 F. Cas. 699, 2 Curt. 475

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: October 15, 1855
• Status: Published

Opinion

CURTIS, Circuit Justice.

I disclaim, altogether, the power to correct a mistake in letters patent. The power to do this is confided by congress to the commissioner of patents, under the 13th section of the patent act of July 4, 1836 (5 Stat. 122). My duty is to construe the specification and claim as they stand, and determine the legal effect of the claim. In doing this, one material thing to be adverted to is, what was in point of fact the invention. For there is a reasonable presumption that the intention of the inventor was,' to obtain, and of the government to concede to him, the exclusive right to what he actually invented. Now it is conceded that the brace C, with its lip G, are essential parts of the invention; and it is therefore fairly to be presumed he intended to embrace them in his summing up. Still, he may have failed to do so, and we must look at the language employed and see whether he has or has not included these parts in his summing up. Referring to the terms used in the claim, it is not doubtful that the pat-entee intended to include in his combination the lip G. He says so in express terms. No doubt exists on this subject. The doubt arises from the terms employed to show how the lip G is to come into the combination. Taken by themselves, the words and letters of a part of the claim indicate that the rest B has two lips. F and G, and that the lip G enters into the combination as part of the rest B. But in construing a claim we cannot look to a single phrase only, to the exclusion of all the residue of the writing. On the contrary, we must look at the entire specification and drawings, and view each part by the light thrown on it by the whole. If the specification, taken as a whole, leaves no reasonable doubt concerning the intention . of the patentee to include in the combination claimed, the brace and its lip G, then it is to be considered as included. It bas already been stated that even the words of the claim relied on by the defendant, show that the lip G enters into the combination; and the close of the claim also shows that the parts of which the combination consists are to be combined and arranged, that is, introduced into the combination, substantially as is described. And the description and drawings clearly show, that the lip G is to come into the combination as part of the brace O, and that it is only in that way, it can possibly be combined with the other parts. The case, then, is this — the lip G is to come into the combination. One part of the claim says as one of the parts of B; another part of the claim, taken in connection with the residue of the specification and drawing, says it is to come in as part of C. And no reasonable man can doubt that the latter and not the former is what the patentee really intended. The rule of “error demonstrationis non nocet” is, therefore, applicable. We may reject the erroneous description, and have enough left clearly and certainly to identify the mode in which the lip G was to enter into the combination claimed. The parties then went to the jury upon the questions of novelty and infringement, and the defendant had a verdict