LOOK et al. v. SMITH, 148 F. 12

RICHARDS, Circuit Judge, delivered the opinion of the court. This is a suit brought for the infringement of letters patent No. 651,938, issued to the appellee, complainant below, June 19, 1900, for an improvement in sprayers. The patent contains four claims. The court below held the fourth claim invalid, sustained the first, second, and third, held they were infringed, and ordered an injunction and an accounting. From this there is an appeal. The following are the four claims: “

(1) The combination in a sprayer of a cylinder and plunger, a receptacle head or cover secured in a position adjacent to the end of the cylinder, a receptacle-easing secured in axial line with said head or cover, a receptacle and a suction-tube, extending from a point approximate a blow-hole in the cylinder into the receptacle through the said head or cover, substantially as set forth. “

(2) The combination in a sprayer of a cylinder and plunger, a receptacle head or cap secured at the end of the cylinder, a longitudinally-arranged detachable receptacle adapted to be secured to said head or cap, and a suction-tube passing through the said cap or head from a point approximate a blowhole at the end of the cylinder to a point within the receptacle, substantially as set forth. “

(3) The combination in a sprayer of a cylinder and plunger and a flanged receptacle head or cap secured at the end of the cylinder, a suction-tube passing through the cap, a receptacle-casing secured to the cylinder, and coinciding axially with the cap and the receptacle, substantially as set forth. “

(4) The combination in a sprayer of a cylinder and plunger, a receptacle head or cap secured to the cylinder, a receptacle, a receptacle-casing and a suction-tube passing from a point approximate to a blow-hole in the cylinder Into the receptacle, substantially as set forth.” This being a combination patent, each element of which is old, the court below sustained the first, second, and third claims on the ground that the longitudinally-arranged detachable receptacle which it found therein, taken in connection with the other elements, was new.

Not finding this longitudinal arrangement of the detachable receptacle in the fourth claim, the court was unable to find anything new in it, and held it-invalid. , If the longitudinal arrangement of the detachable receptacle is the only novel feature in the combination, the first and third claims must fall with the fourth, for only the second claim contains it. But this is immaterial in the view we take of the case, for an examination of the prior art satisfies us that the longitudinal arrangement of the receptacle for holding the spraying solution is not new, it being found in prior patents.

See the Horn patent, No. 604,151, granted May 17, 1898; the Drinkwalter patent, No. 615,963, granted December 13, 1898; the Tabor patent, No. 616,989, granted January 3, 1899; the Young patent, No. 617,847, granted January 17, 1899; the Bas-sler patent, No.. 618,531, granted January 31, 1899; and the Risk patent, No. 630,613, granted August 8, 1899. But, if this were not so, we do not think a mere change in the position of the receptacle, viewed in relation to the cylinder, involved any act of invention.

In point of fact, the prior art shows the receptacle when detached from the cylinder placed in almost every possible position with reference to the cylinder, and in a number of cases the two combined. Having reached the conclusion that the patent is invalid for the reasons stated, the decree is reversed, and the case remanded, with directions to dismiss the bill.