KINZEL v. LUTTRELL BRICK CO. et al., 67 F. 926

TAFT, Circuit Judge (after stating the facts). The answer below denied infringement. It is conceded by the counsel, as it was by the plaintiff upon the stand, that the defendants do not use the short side walls, the casing of upward-sloping terraces, supported on the side walls or the end walls, composed of dirt, or the closely la id plank covering, or the plank capping. The claim of the patent in-dudes all these things as necessary elements of the combination stated.

It is well settled that, in order to constitute the infringement of a combination, it must appear that the alleged infringing device includes every element of the combination as claimed. Electric Signal Co. v. Hall Ry., etc., Co., 114 U. S. 87, 5 Sup. Ct. 1069; Voss v. Fisher, 113 U. S. 213, 5 Sup. Ct. 511; Gage v. Herring, 107 U. S. 640, 2 Sup. Ct. 819; Water-Meter Co. v. Desper, 101 U. S. 332; Dunbar v. Myers, 94 U. S. 187; Reedy v. Scott, 23 Wall. 352; and cases cited.

It is immaterial that the elements claimed in the patent of plaintiff and omitted in the defendants’ device are not of the essence of the real invention. In Water-Meter Co. v. Deeper, 101 U. S. 332, Mr. Justice Bradley, speaking for the supreme court, said: “It may be observed, before concluding this opinion, that the courts of this country cannot always indulge the same latitude which is exercised by English judges in determining what parts of a machine are or are not material.

Our law requires the patentee to specify particularly -what he claims to he new, and, if he claims a combination of certain elements or parts, we cannot declare that any one of these elements is immaterial. The patentee makes them all material by the restricted form of his claim.” The result is that no infringement was made out Therefore, no injunction should have been issued. The court below reached' the same result on another ground, which we do not find it necessary to consider. The decree of the court below is affirmed.