Permutit Co. v. Graver Corporation, 4390.
Decision Date | 20 October 1930 |
Docket Number | No. 4390.,4390. |
Citation | 43 F.2d 898 |
Parties | PERMUTIT CO. v. GRAVER CORPORATION. |
Court | U.S. Court of Appeals — Seventh Circuit |
George A. Chritton, of Chicago, Ill., and Drury W. Cooper, Mitford C. Massie, and Allan C. Bakewell, all of New York City, for appellant.
Charles L. Byron and George L. Wilkinson, both of Chicago, Ill., for appellee.
Before EVANS, SPARKS, and PAGE, Circuit Judges.
This appeal presents for determination the validity, and appellee's infringement, of claims 1 and 5 of the Gans patent, No. 1,195,923 covering an apparatus "for Softening of Water." The District Court found both claims invalid and dismissed the suit.
The Gans patent has been before the courts on numerous occasions. The two claims in question (1 and 5) have been upheld by two Circuit Courts of Appeal. 279 F. 713; 13 F.(2d) 454. They have also been sustained by three District Courts, but only two opinions have been reported. 292 F. 239; 274 F. 937. The same claims have been held invalid by two District Courts, the decision of Judge Tuttle (294 F. 370) being reversed in 13 F.(2d) 454. In the instant suit the District Court, in a well-reasoned opinion, expressed its unwillingness to follow the above-cited decisions because convinced that both claims were clearly void.
The inventor thus describes his invention:
In speaking of the patent, the Court in 13 F.(2d) 454, 455, says:
The two claims in issue read:
About four years after the patent was issued, a disclaimer was filed which reads as follows:
It will be observed that the invention deals not with the use of zeolites as such, nor with the regeneration of zeolites, but rather with an apparatus which makes use of zeolites as a water softener and which also permits of the injection and removal of salt into the casing to regenerate the zeolites which have lost their potency through use. The discovery of zeolites and their use as water softeners long antedate the application for the patent in suit. Gans was a pioneer in the field of chemistry dealing with water softeners. Several years before applying for the patent in suit, he made application for a patent on artificial zeolites and a process of producing the same. In the specifications for this patent he recognized the then existing state of the art respecting the use of zeolites when he said:
Thus it will be seen that we are confronted by a combination product patent only. Utility of zeolites or the effect of salt on zeolites is not involved.
The two claims as originally allowed differed only in one respect, in the appearance in claim 5 of the last-named element, to wit, "means connected to the lowest point of the casing for removing the salt solution so introduced." After the disclaimer was filed the differences between the two claims increased as the disclaimer only applied to claim 1.
Appellee argues that the disclaimer should also apply to claim 5. But we are unwilling to accept this contention. For while it might be said that the same reason existed for limiting his apparatus to such structures as introduced the water into the casing from the top, the fact remains that patentee specifically limited his disclaimer to claim 1. A disclaimer is the act of the patentee. The extent of such disclaimer must be determined by the words used. Here the disclaimer specifically limited its application to claim 1. We are, therefore, not at liberty to extend it beyond the clear and binding limitations which the patentee described.
In view of our conclusion respecting the validity of the two claims, it is not necessary to describe the various forms of apparatus which appellee made and sold, some of which quite obviously did not infringe either claim 1 or claim 5 while others apparently did infringe one claim or the other.
Claim 1. Appellee contends, first, that the structure described by Gans, in claim 1, for the use of zeolites as a water softener and for regenerating zeolites, did not, regardless of the prior art, constitute invention. It also argues, as an alternative, that the validity of this claim must be denied in view of the prior art which showed similar structures, namely, a casing at the bottom of which was an unconfined body of zeolites through which the water passed either upwardly or downwardly, and means for the introduction of salt into the casing that the zeolites might be regenerated.
Appellant on the other hand denies the existence of an anticipating prior art or a prior art sufficient to teach the skilled mechanics how to make the apparatus defined and described in the patent. It asserts novelty over the prior art in two respects: (a) An unconfined bed of zeolites, and (b) means for causing the water to pass downward through the zeolites.
Appellant's counsel describes the novelty of the Gans invention, thus:
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