POOLE BROS. v. MARSHALL-JACKSON CO., 171 F. 842

GROSSCUP, Circuit Judge (after stating the facts as above). The claim is for a holder for desk calendars comprising a base for resting on the desk, and two seats for the calendar leaves, one seat being upon the base, and upwardly facing, and the other (the seat to which the leaf is lifted) being carried by and elevated above the base, and rearwardly facing.

Whether appellee’s device infringes the claim or not, depends upon the meaning to be given to the phrase “elevated above the base” as applied to the seat not resting on the base; for if that phrase means the particular structure shown in figure 1. wherein the seat is not integral with the base except as it is attached thereto by the filing wires, appellee’s calendar holder does hot infringe, for in its holder the corresponding seat rests upon the base.

We are of the opinion that the phrase. “elevated above the base” as used by the patentee in his application, and as granted by the patent office, was meant as the Construction of a seat not resting upon the base, or integral therewith, except as connected by the filing wires. The previous art, it seems to us, makes this

interpretation imperative, for in that art there are memorandum calendars in every essential respect like the appellee’s calendar, except that the second seat is not raised quite so high as appellee’s calendar — the only difference being a slight change of angle — a thing that could not exist consistently with the granting of a patent to Wilson broad enough to cover the appellee’s device, unless the patent office held that there was patentability in this slight change of angle, an assumption that we do not think warranted.

The descriptive portion of the patent, set out in the statement of facts, shows, also, that this must have been the min'd of the patentee, for making no mention of the “elevated support” as resting upon, or being integral with, the base, he describes it as “formed,” by bending the wires downwardly and forwardly, and then upwardly and forwardly; . “formed” being meant evidently not only to describe the form the seat should take, but also the character of its construction. Upon this

interpretation of claim 1, the decree of the Circuit Court finding that there was no infringement, is without error. Affirmed.