Smith v. Putnam

45 F. 202, 1891 U.S. App. LEXIS 1722

• Court: U.S. Circuit Court for the District of Massachusetts
• Decided: February 13, 1891
• Status: Published

Opinion

Colt, J.

There is one defense which is fatal to complainant’s bill. The suit is for infringement of letters patent 183,716, granted October 24, 1876, to William Smith for an improved water-closet. The claims relied upon, and which the defendant is charged with infringing, are 1 and 5. These are combination claims, and one of the elements of the combination in each claim is the jet g. It is admitted that the defendant’s apparatus does not have this element. The claims of the patent mention two jots, / and g. The closet of the defendant has only one jet. It has been repeatedly held that a combination is an entirety, and that a patentee cannot abandon a part and claim the rest, nor can he he permitted to prove that a part is useless, and therefore immaterial, hut he must stand by the claims as he has made them. If more or less than tho whole of his ingredients are used by another, such party is not liable as an infringer, because lie has not used the invention or discovery patented. Such is doctrine of the supremo court as laid down in Schumacher v. Cornell, 96 U. S. 549. See, also, Keystone, Bridge Co. v. Phœnix Iron Co., 95 U. S. 274; Burns v. Meyer, 100 U. S. 671; Water Meter Co. v. Desper, 101 U. S. 332; Gage v. Herring, 107 U. S. 640, 2 Sup. Ct. Rep. 819; Fay v. Cordesman, 109 U. S. 408, 3 Sup. Ct. Rep. 236; Rowell v. Lindsay, 113 U. S. 97, 5 Sup. Ct. Rep. 507; Manufacturing Co. v. Sargent, 117 U. S. 373, 6 Sup. Ct. Rep. 931.

Bill dismissed.