Schalscha v. Sutro

19 F. 319, 1884 U.S. App. LEXIS 2038

Opinion

Wallace, J.

The claim of the patent to Schalscha (No. 186,628, granted January 3, 1877) is “a cigar constructed as described, with a longitudinal opening, H, in its drawing end, and the end of the wrapper, A, secured permanently witliin the aperture, as and for the pur pose set forth.” Read with the description, however, the claim must ■be limited to one for the cigar when made by the machine described in detail by the patentee as employed by him for the purpose, or a substantially similar machine. No mode of making such a cigar is disclosed in the specification except by means of the machine described. The machine is described with particularity, and the mode ■of operating it; and among the advantages enumerated as the result of the invention are those which could only result from the employment of the particular machine. There is no evidence that the defendants’ cigars were made by a machine; on the contrary, the proof is that the hole in the tip was punched by a pencil.

The bill is dismissed.