CITY OF CHICAGO v. STRAUSS BASCULE BRIDGE CO., 261 F. 358

BAKER, Circuit Judge (after stating the facts as above). Beyond approving the master’s findings and conclusions as sufficient answers to appellant’s contentions in chief, there is one position, taken in an additional reply brief, which should be stated and met. As appears from the master’s finding, and also from the specification of the patent, Strauss’s particular construction of “truss members above and below said cross-support, and arranged so as to at all times be free from the cross-support when the movable

section is lifted,” or “truss members which completely surround the cross-support,” was a quadrilateral, two sides of which formed a re-entrant angle, and which was saved from distortion by having each of the re-entrant sides itself a side of a triangle in the general truss. On this specific disclosure Strauss framed and was allowed the broad claims in suit.

Additional counsel in the additional brief assert that all that Strauss invented was his specific quadrilateral; that it was merely an accident that appellant used that form; that appellant can easily provide its openings for the stationary cross-supports by using other polygonal forms or even a triangle; that the claims, being clearly broader than the actual invention, should not be recast through a judicial reissue; and that appellee’s only remedy is through a Patent Office reissue.

We should of course agree with counsel, if we could accept his prime assertion that the Tiber bridge publication disclosed the generic invention of a bascule bridge having openings in the side walls (of truss or equivalent construction) for the stationary cross-support. There is no verbal description of the parts in question. In the drawings and photographs in the publication the experts for appellant see the Strauss bridge, while appellee’s experts find no suggestion of it. Our own examination leaves us uncertain of the actual construction of the portions of the Tiber bridge in question.

What we are certain of is that the foreign publication does not “contain and exhibit a substantial representation of the patented improvement, in such full, clear, and exact terms as to enable any person skilled in the art or science to which it appertains to make, construct, and practice the invention to the same practical extent as they would be enabled to do if the information was derived from a prior patent.” Seymour v. Osborne, 11 Wall. 516, 20 L. Ed. 33. We conclude, therefore, that Strauss’s specific disclosure warranted the allowance of the claims in suit. The decree is affirmed.