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This was a distinct affirmation that the inventors did not intend to limit their device to a chair "having the rockers secured to the seat by a spider.” This was an important declaration as to its scope, for it permitted a construction that the chair seat might be secured to the rockers otherwise than by a spider. This would enlarge the claim as to the points at which the springs might be attached to perform their function of holding the rocker and base to an alignment, and make it within a fair construction of the patent to use the springs by attachment directly to the rockers.
By these proceedings, extending over a period of several years, it is claimed that the inventors, with full notice to the patent office, gradually broadened their claim and their invention to cover the use of short, stiff spiral springs to the ordinary platform rocking chair. Had they a right to do this? Such right of inventors to broaden their claims by explicit statements as to scope and meaning while the patent is still undergoing examination in the patent office seems to be recognized by the supreme court in the case of Deering v. Harvester Works, 155 U. S. 286, 15 Sup. Ct. 118. In Topliff v. Topliff, 145 U. S. 156, 12 Sup. Ct. 825, the same court recognized the right of the inventor to secure by reissue “his actual invention.” The same right to secure such actual invention should be conceded to the applicant while the patent is still in the office undergoing examination, either by interference or otherwise. In the case of Beach v. BoxMachine Co., 63 Fed. 597, Judge Coxe says:
“There can be no dispute that an inventor is entitled so to amend his specification that it will employ perspicuous and artistic language, and enable him to hold all that he has invented."
In construing the effect of the proceedings in the patent office, full force should be given to the language of Justice Swayne, of the supreme court, in the case of Rubber Co. v. Goodyear, 9 Wall. 788, where he said:
"Liberality, rather than strictness, shall prevail where the fate of a patent is involved, and the question to be decided is whether the inventor shall hold or use the fruits of his genius and labors."
Again, in Westinghouse Air-Brake Co. v. New York Air-Brake Co., 11 C. C. A. 528, 63 Fed. 362, the circuit court of appeals for the Second circuit say:
“The patentee was a pioneer, in that he designed * a new way to accomplish a desired result, but upon the same general idea which he had unsuccessfully tried to work out in the earlier patent. His later patent was the bridge, and not a mere step."
I had occasion, in considering this same patent in the case of Rocker Spring Co. v. Flinn, 46 Fed. 109, to say that it involved a new and useful invention. A reference is made to that opinion for the grounds upon which that holding was made. Nothing has been offered in evidence in this case which leads me to change my opinion as to the validity of this patent as expressed in the Flinn Case. I do not find that the patent was anticipated by prior use or invention. The only question which follows, therefore, is whether the infringement has been established. If the complainant's invention could be limited to the use of the spiral springs within the iron frame described and specified in their original patent, and the tilting motion of the chair be limited to the use of the iron rockers constructed about the center or pivot of the tilting chair, so that the springs could be applied directly to the iron rocker and the iron base upon which it moves, then the defendant's chair would not be an infringement. But the inventors, in the proceedings in the patent office, distinctly stated that they did not limit the use of the springs to that location, or the rockers to the iron frame described in their original application. If, under the claims so broadened, the springs could be applied to any part of the chair where their function could be properly used, then the defendant's chair is a clear infringement. The springs on the defendant's chair are applied directly to the rocker and to the base. They there hold the chair in such a position as to keep the rocker and the base upon which it moves in direct alignment, and perform exactly the same functions that they did in the plaintiff's original application. The moment the patent office recognized the petitioner's claim to the right to apply these springs to platform rocking chairs, that moment the claim was broadened so as to notify all concerned that these springs might be used either by direct application to the rocker and the base, or in the contracted position under the center of the chair, where they were first used in the tilting or revolving chair. For these reasons, I think the use of the springs as applied on the defendant's chair is an infringement, and a decree may be prepared accordingly.
CRAMER V. FRY.
(Circuit Court, N. D. California. April 12, 1895.)
1. PATENTS-INFRINGEMENT- LIABILITY OF AGENT.
The general agent of a corporation engaged in the manufacture and sale of infringing machines, who is the medium to execute the instructions of the company in the receipt, issue, and sale of the machines, for which he receives a salary, and a commission on all moneys reported by
him, is liable for the infringement, though he makes no sales personally. 2. SAME-SEWING MACHINE TREADLES.
The first claim of the Cramer patent for an improvement in sewingmachine treadles, which is for a vertical double brace joining the legs of the two ends of the machine, provided with holes through its lower extremities to serve as bearings, in combination with a treadle provided with trunnions having knife edges to oscillate in such bearings, is not infringed by treadles manufactured under the patent granted to the Singer Manufacturing Company, as assignee of Philip Diehl, for treadles hung in a loop-like downward extension of the usual upright cross brace, and operated on conical pointed screws extending through the sides of the downward extension of the brace, and acting in suitable bearing recesses in the ends of the treadle.
Action at law for infringement of letters patent for an invention, commenced against the Singer Manufacturing Company, a New Jersey corporation, and Willis B. Fry, manager on the Pacific coast of the business of the Singer Company. A demurrer was interposed on behalf of the Singer Company upon jurisdictional grounds, and was sustained upon the authority of Shaw v. Mining Co.,,145 U. S. 444, 12 Sup. Ct. 935, and other cases. The action then proceeded against Fry alone.
The patent sued upon was granted to the plaintiff on January 30, 1883, and was for an improvement in sewing-machine treadles. In the specification the patentee described his invention as relating to improvements in the bearings of sewing-machine treadles, and in the specification and drawings the treadle of the patent was specifically described, and shown to work upon trunnions integral with the treadle, and extending into bearing holes in the lower ends of the usual upright cross brace of the machine, said trunnions being V-shaped, or sharpened to an edge along their lower surfaces; the usual foot bar or cross bar passing through the lower ends of the upright cross brace below the treadle, and serving its customary purpose of rigidly joining the cross brace and legs of the machine at their lower points of contact.
Specification and Claims of Plaintiff's Patent "To All Whom It may Concern: Be it known that I, Herman Cramer, of Sonora, in the county of Tuolumne, and state of California, have invented a new and improved sewing-machine treadle; and I do hereby declare that the following is a full, clear, and exact description of the same, reference being had to the accompanying drawings, forming part of this specification: Jy invention relates to improvements in the bearings of sewingmachine treadles; and it has for its object to provide means-First, to keep the treadle bearings rigidly in line and at a fixed distance apart, to avoid friction; and, second, to make its movement in use noiseless. To this end my invention consists in the construction and combination of parts herein
after fully described and claimed, reference being had to the accompanying
“Frank W. Street,
The first claim only of plaintiff's patent was alleged to have been infringed.
Letters patent for certain improvements in sewing-machine stands and treadles were granted to the Singer Manufacturing Company, assignee of Philip Diehl, on October 14, 1884. Under this patent the Singer Company constructed and sold in sewing machines a form of treadle hung in a looplike downward extension of the usual upright cross brace, which downward extension also served as the ordinary foot bar or cross bar. The treadle operated upon conical pointed screws extending through the sides of the downward extension of the brace and acting in suitable bearing recesses in the ends of the treadle. The following drawing from the Diehl patent fully illustrates its treadle and bearings:
The defendant did not himself make, use, or sell any machine containing the Diehl treadle, but exercised supervision over the Pacific coast business of the Singer Company, under instructions from the central office at New York, and, as a part of his compensation, received a commission upon the net profits accruing to the Singer Company from its entire Pacific coast business. At the conclusion of the testimony, counsel moved for an instruction to the jury to bring in a verdict for the defendant, because (1) the defendant, as a mere agent or employé, was not liable in an action at law for damages on account of infringements committed by the Singer Company, if at all; and because (2) the Diehl treadle used by the Singer Company was not an infringement of the plaintiff's device.
John L. Boone, Jos. Nougues, and Chas. F. Hanlon, for plaintiff. Wheaton, Kalloch & Kierce and Chas. K. Offield, for defendant.
MCKENNA, Circuit Judge (orally).
(orally). At the close of the plaintiff's testimony, the defendant made a motion for the court to instruct the jury to find a verdict for the defendant, which motion