Page:Federal Reporter, 1st Series, Volume 9.djvu/469

 454 PEDEBAL EBPORTER. �So, too, in the bottle-stopper caae, lately before Jndge Sliipraan, (Patnam\. Tinkham, 4 Fed. Eep. 411,) the learned judge says: �"The claim is as follows : 'The internally located bottle stopper, B, pro- vided with a hinged or jointed handle or bail, G, composed of two elastic legs or branches, and an eye or finger loop, as and for the purpose set forth.' Ile virtually disclaims rigid handles, and says that his Invention is designed to avoid sueh a method of construction. It is useless to say that by a rigid handle he merely meant a bail without spring action, for the entire paragraph shows that he also meant a handle so jointed or hinged to the stopper that it could be tumed away from the mouth of the bottle. He intended to point out that his handle or bail was both hinged to the stopper and had elastic legs. The reissue covers a device in which the bail is attached to the stopper in any manner. The hinged construction is briefly alluded to as one which ac- complishes a certain resuit. * * * In the original patent the patentee informed the public, with precision, and after deliberation, that his invention was an improvement upoii a rigid handle, and limited himself to a hinged or jointed handle. It has now become important for the plaintiff to possess himself of the teiTitory which his assigner attempted to occupy, but abiin- doned, and the ownership of which he virtually disclaimed. A comparison of the two patents shows -that the case is clearly within the principles which have been recently and frequently anuounced by the supreme court as appli- cable to reissues. The reissue is void because it is on its face for a different invention from that which was embraced in the original patent. Russell v. Dodge, 93 U. S. 460; Ry. Co. v. Sayles, 97 U. S. 554; Powder Co. v. Powder Works, 98 U. S. 126; Leggett v. Avery, 17 0. G. 445." �These authorities seem to fully meet this case, and I can put no other construction upon them than that this claim is void by reason of the original disclaimer. This patentee had no right, after having stated positively to the world and to the patent-office that he did not claim the idea of mounting the rake-head upon the top of the car- riage, by a reissue, to claim this as an element of invention by him- self. But if there is room for doubt as to the soundness of this position, I am also clear that the defendant does not infringe this claim. The claim is for the combination, etc., whereby the head is supported above the rear upper edge of the axle, as shown. The defendant's rake-head is suspeuded behind or in the rear of the axle by brackets, hung, so to speak, behind the axle, instead of being sup- ported above the axle. �In Edgarton v. Breck Judge Lowell says : �" The difflculty with the second claim of the reissue, as applied to this case, is that the patentee has seen fit, for some reason, to describe his rake-head as supported above the upper edge of the axle, and the defendant's rake-head is on a line with the axle. It may be that this limitation is unnecessary, but it is found in the second claim, and I do not feel at liberty to disregard it." ��� �