STANDARD OPTICAL CO. v. COOK, 236 F. 548

KOHLSAAT, Circuit Judge (after stating the facts as above). While we deem the validity of the reissue patent as being a close question under the statute and the authorities, by reason, among other matters, of the proceedings had in the Patent Office in connection with the canceling of original claims 1 and 2 of patent No. 9-16,596, we do not consider it necessary, for the.disposition of the questions here presented, to decide that point. We assume, for the purposes of this proceeding, that the reissued patent is valid. The held in which the patentee was working was very narrow.

The French patent to Lancon, published in 1908, showed the pintle rising from the nose piece and having a vertical sliding movement upon the cross piece for purposes of adjustment to the eyes, and also the revoluble movement of the cross piece and lenses upon the pintle as a pivot. Wienrich, 1901, discloses glasses which may be folded, one lens upon the other, each being swung on a pivot indirectly connecting it with its particular end of the nose piece.

Cook’s patent, No. 936,987, shows glasses differing in no substantial respect from his patent upon which the reissue is based, and the reissue patent, except in the fact that in the former the boss rising from the nose piece ñts “between the lower ends of the hinges or the lower portions of the meeting edges of the lenses.” “The bridge,” says the patentee, “is thereby held in proper position to aid in supporting the lenses and to cushion the same on the wearer's nose,” whereas in the latter the boss is prolonged upwardly to form a vertical pintle upon which the sleeves of the hinges are pivoted, thus eliminating the pivot pin 8 connecting the hinge members of that device, and making the lenses partially adjustable.

The device of patent No. 946,596 makes provision for such adjustment to the eyes as may be obtained by hinged movement, said movement being perpendicular, or at right angles to the post. This latter is the subject-matter described in the reissue, appellee insisting that the claims of patent No. 946,596 were by mistake limited to the improved hinge, including stops to limit the movement of the lenses toward each other, but making no claim to means for holding the lenses in proper position in front of the eyes.

It is apparent that claims 1 and 2 cover only the matters disclosed in figures 1, 2 and 3 of the patent No. 946,596 aforesaid. Assuming, as above stated, that appellee was entitled to the reissue claims, the most that can be said is that he has secured a monopoly to glasses which may be adjusted to the eyes in any manner which may be attained through lenses moving perpendicularly or at right angles to the pintle. On the other hand, appellant’s device is capable of indefinite relative movement with respect to the eyes by reason of the resilient means for connecting the lenses.

The latter may be moved at right angles, or in any arc of a circle, or of an ellipse, or even angu-larly. It has no pintle, and no hinged movement. Its nose piece is almost as flexible as that of the old rubber cover patent, No. 12,924. It has the same, if not a greater, presumption of validity arising from the grant as has the reissue patent, in that it was granted after, and presumably was distinguished from, Cook; and instead of being an improvement of the invention defined in the patent in suit, the Brennecke patent, in our judgment, was for an independent invention in the old common field.

Kokomo Fence Machine Co. v. Kitselman, 189 U. S. 8, 23 Sup. Ct. 521, 47 L. Ed. 689. All things in evidence considered, we are of the opinion that the decree of the District Court should be and it is reversed, with costs, with direction to vacate the decree and dismiss the bill for want of equity.