STARRETT v. J. STEVENS ARMS & TOOL CO.; SAME v. ATHOL MACH. CO., 100 F. 93

ALDRICH, District Judge. These cases were decided against the patentee in the circuit court by Judge Brown, and his opinion is reported in 96 Fed. 244. WTe think the conclusions there reached were in accordance with justice, and we. must therefore affirm the decrees handed down in that court. The proceedings in the patent office are against importing elements into the claims on lines of liberal construction, for the purpose of making out a case of infringement. The merit of this patent is not sufficient to command a policy of liberal construction for such purpose.

While the application was pending in the patent office the applicant was advised that claim 1 was anticipated by the previous Hopkins patent, and interference was suggested, with a' view of adopting a claim: ' “In calipers and dividers, the combination with legs having their upper ends notched, with an interlocking spring adapted to engage said notches, whereby said legs may be removed and others substituted therefor.” After correspondence the applicant informed the patent office that he did not desire to make the claim suggested, but desired final action on Ms claims as presented.

Thus, it seems that the patentee, after notice and consideration, advisedly adhered to the narrow and special form of device which he had previously adopted and described. In this connection it may be said that, although the Fay patent was granted in 1885, the proofs establish that calipers constructed according to this patent have not made any considerable progress in the trade, and have not been extensively used outside of the complainant’s shop. We only consider the question of laches, which, the circuit court limited to The defense in the Athol Machine Go.

Case, as bearing upon the question -whether we should adopt the rule of liberal construction suggested and urged by counsel for the patentee; and with this view we observe- that the complainant had correspondence with the Athol Machine Company in 1888, in which the company protested that they did not use the joint described in the Fay patent, and from that time until 1898 the patentee did nothing for the purpose of establishing his contention with respect to his

interpretation of the claims in this patent. The facts that the claim is a narrow claim, and that, after notice from the patent office, Fay adhered to the special form of claim previously adopted; that the tool has not become generally commercial; and that the patentee unreasonably rested upon his supposed rights,— taken altogether, present a situation which forbids a liberal construction of the patentee’s claims for the purpose of sustaining the contention of infringement.

Having said this much, we rest the construction of the patentee’s claims, and the discussion of the mechanism involved therein, as well as that involved in the alleged infringing tools, upon the reasoning of the judge below. Decrees of the circuit court affirmed, with costs.