JENKINS, Circuit Judge.
The problem which Vanduzen sought to solve was to so construct a double-acting pump with, two cylinders that: the plungers and valves could be removed for repairs and other purposes without lifting the pump from the well, or removing it from its fixed position. To do this in a single-acting pump which liad but one cylinder was not difficult, and had long been practiced; but in such double-acting pump (unless in the McCauley pump, which we hereafter consider), so far as this record discloses, it was entirely novel, and unknown! until the patent in suit. Vanduzen, by Ms invention, provided a double-acting pump with a removable upper cylinder and a lateral water way located below it, and, with the other elements and devices of the pump, it was rendered possible to remove the upper cylinder plungers and valves without removing the pump from its fixed position. This was certainly a desirable and useful accomplishment, and, if it was novel, the specifications and claims should receive a liberal construction to sustain the patent. The patent is of itself prima facie evidence of the novelty of the invention, and the burden of proof is cast upon him who attacks it to show that what is claimed as an invention was, at the date of the patent, old in the art. This the appellees have not: done. There is much evidence to the effect that long before the patent: in suit pumps were so constructed that the valves and plungers could be removed without removal of the pump from the well, or from its fixed position. And this was unquestionably true with respect to single-acting pumps having but one cylinder. But the evidence wholly fails to show that it was true with respect to double-acting pumps with two cylinders.
It is said by the appellees that this novelty of invention is overthrown by the McCauley patent. The difficulty with this contention is that, as counsel for the appellees assert and insist, the McCauley patent is not before us. The appellees caused it to be identified, but failed to introduce it in evidence, and when the appellant: desired this court to consider it in evidence the appellees objected. They cannot, therefore, take any supposed advantage from a patent which they have failed to produce in evidence, and to the consideration of which they now object. Nor can we assume, from the statement of counsel for the appellees in the question proposed to the witness Bates, or from the answer of the witness to the question, that the McCauley patent was for a double-acting pump with two cylinders. The interrogatory put to the witness did not require his construction of the subject-matter of the patent whether it was a double-acting pump or whether it had one or two cylinders, but simply whether that pump was so constructed that the buckets and valves could be removed without disturbing the stationary pump. To the question propounded, an affirmative answer was given, but that is far from an assertion by the witness that the pump was other than a single-cylinder pump, such as had long been known and operated. Nor does (he statement of counsel in his question designating the McCauley .patent as one for a double-acting pump compel us to so regard it. statements of counsel are not evidence; nor is the court bound by Iheir construction of a patent which they will not permit us, under ihe rule Invoked, to examine and consider. Bearing in mind that [438] the burden of proof was upon the appellees, it became their duty to present in evidence whatever would tend to show that with respect to double-acting pumps with two cylinders the invention here asserted was not novel. If, against the earnest protest of their opponent, they availed themselves of a technicality to prevent a consideration by the court of a patent which they claim will disclose want of novelty in the invention of the patent in suit, they cannot complain if the court declines to accept their unsupported assertion of the character of that patent. We therefore think that upon this record it must be held that here was a meritorious invention originating with Yanduzen.
Free access — add to your briefcase to read the full text and ask questions with AI
JENKINS, Circuit Judge.
The problem which Vanduzen sought to solve was to so construct a double-acting pump with, two cylinders that: the plungers and valves could be removed for repairs and other purposes without lifting the pump from the well, or removing it from its fixed position. To do this in a single-acting pump which liad but one cylinder was not difficult, and had long been practiced; but in such double-acting pump (unless in the McCauley pump, which we hereafter consider), so far as this record discloses, it was entirely novel, and unknown! until the patent in suit. Vanduzen, by Ms invention, provided a double-acting pump with a removable upper cylinder and a lateral water way located below it, and, with the other elements and devices of the pump, it was rendered possible to remove the upper cylinder plungers and valves without removing the pump from its fixed position. This was certainly a desirable and useful accomplishment, and, if it was novel, the specifications and claims should receive a liberal construction to sustain the patent. The patent is of itself prima facie evidence of the novelty of the invention, and the burden of proof is cast upon him who attacks it to show that what is claimed as an invention was, at the date of the patent, old in the art. This the appellees have not: done. There is much evidence to the effect that long before the patent: in suit pumps were so constructed that the valves and plungers could be removed without removal of the pump from the well, or from its fixed position. And this was unquestionably true with respect to single-acting pumps having but one cylinder. But the evidence wholly fails to show that it was true with respect to double-acting pumps with two cylinders.
It is said by the appellees that this novelty of invention is overthrown by the McCauley patent. The difficulty with this contention is that, as counsel for the appellees assert and insist, the McCauley patent is not before us. The appellees caused it to be identified, but failed to introduce it in evidence, and when the appellant: desired this court to consider it in evidence the appellees objected. They cannot, therefore, take any supposed advantage from a patent which they have failed to produce in evidence, and to the consideration of which they now object. Nor can we assume, from the statement of counsel for the appellees in the question proposed to the witness Bates, or from the answer of the witness to the question, that the McCauley patent was for a double-acting pump with two cylinders. The interrogatory put to the witness did not require his construction of the subject-matter of the patent whether it was a double-acting pump or whether it had one or two cylinders, but simply whether that pump was so constructed that the buckets and valves could be removed without disturbing the stationary pump. To the question propounded, an affirmative answer was given, but that is far from an assertion by the witness that the pump was other than a single-cylinder pump, such as had long been known and operated. Nor does (he statement of counsel in his question designating the McCauley .patent as one for a double-acting pump compel us to so regard it. statements of counsel are not evidence; nor is the court bound by Iheir construction of a patent which they will not permit us, under ihe rule Invoked, to examine and consider. Bearing in mind that [438] the burden of proof was upon the appellees, it became their duty to present in evidence whatever would tend to show that with respect to double-acting pumps with two cylinders the invention here asserted was not novel. If, against the earnest protest of their opponent, they availed themselves of a technicality to prevent a consideration by the court of a patent which they claim will disclose want of novelty in the invention of the patent in suit, they cannot complain if the court declines to accept their unsupported assertion of the character of that patent. We therefore think that upon this record it must be held that here was a meritorious invention originating with Yanduzen.
The specification asserts that the invention relates to that class of pumps which are adapted to be suspended within a well or cistern, and in another clause of the specification it is asserted that the operation of the pump does not differ essentially from the operation of other double-acting bucket-plunger pumps, the water being discharged through a nozzle in the head, H; the cap, J, and the pipe, I, serving as an air chamber. These expressions in the specifications were thought by the court below to limit this invention to a pump suspended in a well. The court seems to have fallen into error in the statement that this removable feature was old in double-acting pumps not suspended. We are unable to find any such evidence in the record. We do not discover in the testimony that in any double-acting pump prior to the patent in suit this removable feature was present. The question then arises whether, under such circumstances, the statement in the specification and in the first claim of the patent limits this invention to a pump suspended in a well. It may not be denied that the specification and the first claim of the patent are couched in unskillful language; but in the case of a novel and useful ■invention the terms employed should, if possible, receive a construction which will uphold, and not defeat, the patentee’s right to that which he has in fact invented. In such case the specification and claims should be read in a liberal, and not in a strict, construction. Read in such light, we are of opinion that the specification and claims cover the invention asserted with respect to all force or double-acting pumps with two cylinders. The inventor claims “new and useful improvement in force pumps,” and describes the invention. He, indeed, says that it relates “to that class of pumps which are adapted to be suspended within a well or cistern”; but a pump adapted to be suspended is not necessarily a suspended pump, and such language does not, as of course, limit his invention to a pump suspended in a well or cistern. A strict construction of the expression without reference to the context would make it include single as well as double acting pumps. What, then, is the mechanical significance to be attributed to the word “suspended,” as employed in this specification, and with respect to the invention described? The thought pervading the entire writing is that the pump is to be placed in a fixed position, from which it need not be removed in order to withdraw the plunger and valves for repairs; and, if such fixed position results from the driving of the pipe into the ground, or is otherwise accomplished, we cannot think that the applicability and use[439] fulness of ilie invention are affected. Looking, then, at the specification from iis four corners, and seeking to give effect to all contained within it, it seems clear to us that the invention was intended to apply to all double-acting cylinder force pumps. The result accomplished by the invention1 was the removal of the plunger and valves without removing the pump from its fixed position. The actual invention applies as well to tubular well, driven well, and all double-acting force pumps in which the plunger rod and lower valve could be removed without unfastening the pump standard, and lifting out the entire pumj) mechanism. In such pumps the tubing is in fact the lower cylinder of the patent, the plunger and plunger rod being-suspended therein b,y and connected with the upper mechanism of the pump. The statement in the specification that “the operation of the pump does not differ essentially from the operation of other double-acting bucket-plunger pumps” should not avail to narrow the construction which we think should be given the specification. The statement is correct, having manifest reference to the operation of the pump in the discharge of water. The operation is the same. The invention, however, consists in so constructing the pump as to permit the removable feature described. Under this construction of the specification and claim, we cannot doubt that the appellees have infringed. They make and sell pumps in all essential respects like that of the patent. They do not, indeed, make the lower cylinder, but they manufacture pumps to be used in tubular wells, the tube and valve placed therein supplying the lower cylinder and valve of the patent. Their pumps are inoperative and useless unless so constructed. The case presented is therefore one of contributory infringement. Wallace v. Holmes, 9 Blatchf. 65, Fed. Cas. No. 17,100; Renwick v. Pond, 10 Blatchf. 39, Fed. Cas. No. 11,702.
The judgment is reversed, and the cause remanded for further proceedings in conformity with this opinion.