Lake v. Fitzgerald

14 F. Cas. 945, 6 Fish. Pat. Cas. 420

• Court: U.S. Circuit Court for the District of Southern Ohio
• Decided: June 15, 1873
• Status: Published

Opinions

EMMONS, Circuit Judge.

When complainant’s counsel concluded his argument upon the question of infringement, Judge EM-MONS said that unless there were some other considerations not called to their attention, he thought further consideration of the case unnecessary. As to the second claim, he understood counsel not seriously to press it. He thought the first also was not infringed by the defendant. It had been rationally interpreted in argument, and he desired to make no modification of counsel’s interpretation. He had rightly, in the opinion of the court, considered the patent as one for a grating. with its apertures filled with glass, without any other limitations as to the size of the apertures than those which, without the filling, would cease wholly to perform the functions described in the patent Its clauses, demanding lessened openings, as compared with those formerly filled with glass, for similar purposes, were referred to, and thought to exclude manifestly the devices of the defendant This is also in accordance with the description of the history and purposes of the invention, as given by the patentee in his deposition. The capacity to use thinner glass, the description of a metallic plate perforated with numerous small holes or apertures, for the reception of glass, and of such size as, without the filling, they could be walked over with entire safety, and other characteristics described, it was thought required a construction which, irrespective of all filling, would answer a practical purpose for a grating. The samples before the court of what defendant used, he had no doubt, would not do so. This insertion in a walk or private business house, where the public were solicited to enter for trade, would subject a citizen to liability for injuries, which would undoubtedly result from their use. Had no light similar to defendant’s been before in use, he would have considered further whether a still greater extension of mere size beyond complainant’s own literal limitations could not for his protection be made. This whole idea of lighting by glass in apertures would thus have been'his, and such an interpretation possibly justifiable for the protection of the principle of a meritorious invention. Here, however, other lights in size like defendant’s were common. This patent is not for them, but for a peculiar arrangement and form, into which the idea of mere size most prominently enters. He was confident that the placing side by side two or more of Rockwell’s old lights would be but a double use. There was full right to multiply to any number such devices in the same cover, or, what he deemed the equivalent, the same sidewalk, floor, or deck. To extend complainant’s patent, as claimed, would make it include the use of the Rockwell light, which of course was inadmissible. It was equally so to include those of the defendant, which, so far as all here in controversy are concerned, were in size just like them. The patentee, in his testimony and specifications, in the clearest terms, declares that the dangers and inconveniences of such lights, his are intended to avoid. It would be an unwarrantable construction which would make his claim include them. It was not deemed important that the devices should be inserted in detached or removable covers or gratings. He would readily hold a sidewalk made of iron plates permanently, or a floor or deck containing complainant’s inventions an infringement. Its essence was nota removable cover or grate, and the insertion of two or more of Rockwell’s lights in a slab, which was so removable, would not infringe.

The use of complainant's improvements in a floor or sidewalk immovably would by no means avoid it. If he had rightly understood counsel as contending that no one could insert two or more lights in a cover or grating, as distinguished from a similar insertion in the floor or walk permanently, then with so much of his argument he disagreed.