Boyer v. Keller Tool Co.

• Decision Date: 21 December 1903
• Docket Number: 1.
• Citation: 127 F. 130
• Parties: BOYER v. KELLER TOOL CO.
• Court: U.S. Court of Appeals — Third Circuit

127 F. 130

BOYER v. KELLER TOOL CO.

No. 1.

United States Court of Appeals, Third Circuit.

December 21, 1903

Edward Rector and John R. Bennett, for appellant.

E Hayward Fairbanks, for appellee.

Before ACHESON and GRAY, Circuit Judges, and ARCHBALD, District Judge.

ARCHBALDDistrict Judge.

The bill was dismissed on the ground of noninfringement, and the case may therefore be appropriately approached from that side.The patent in suit was issued to Joseph Boyer, April 16, 1895, for a pneumatic tool, and its various features are expressed in a large number of claims, only two groups of which, however, were the subject of consideration in the court below.The appellant accepts the conclusion reached with regard to those, of which claim 5 is typical, and which relate to the automatic valve mechanism at the rear of the piston chamber.The only complaint, therefore, with which we have to deal is the treatment of those which cover the means for controlling the supply pressure, being claims 42 to 48 inclusive.Taking claim 47 as expressive of this group, it was held by the court below that a pressure supply duct was there called for which extended through the grasping portion of the handle, combined with a throttle valve to control the supply, of the exact construction and method of operation shown in the patent, and that, as neither of these appeared in the tool manufactured by the defendant company, it could not be held to infringe.The relative construction of this part of the defendants' tool and that of the plaintiff as portrayed in the patent will appear by the following diagrams:

Plaintiff's Tool.

(Image Omitted)

Defendant's Tool.

(Image Omitted)It will be there seen that the defendants carry the supply duct through the lower end of the handle direct to the head block of the piston chamber, while in the plaintiff's tool it extends through the entire length of the handle, the recurved neck as well as the grasping portion of it.If the plaintiff is confined to this construction, the conclusion reached by the court below was justified.

The combination of which this feature of the plaintiff's tool is a part is expressed in its broadest terms in claim 42, as follows: '(42) In a pneumatic tool the combination with the tool proper of a grasping handle secured thereto, and having the pressure supply duct extending through it, and a throttle valve in the grasping portion of said handle for controlling said duct, substantially as described. ' In the description given in the preceding specifications the handle proper is said to preferably consist of a portion, of the shape approximately that shown in the drawings, and adapted to be grasped in one hand of the operator in the manner of the ordinary handsaw, and a reduced reversely curved neck portion connecting the other with the head block of the piston chamber.But the inventor expressly declares with regard to his invention generally that by describing in detail a particular construction or arrangement he does not intend to limit himself beyond the terms of his several claims or the requirements of the prior art.With this reservation, the claim just quoted would, therefore, seem to be realized, so far as the supply duct is concerned, by any construction by which such duct is made to extend through any part of the grasping portion of the handle, and is not confined to one in which it traverses the whole handle, or the grasping portion of it longitudinally, as shown in the drawings.This cannot be said, it is true, of claims 43 and 44, each of which calls by specific mention for a handle composed of a grasping portion and a reduced neck portion, with the pressure supply duct extending through both.But it is true of the other claims of this group, including claim 47, taken by the court below as typical.In each of these, as in claim 42, the duct is simply spoken of as extending through the grasping handle, which, in claim 45, is still further narrowed, without qualification, to the handle.We are of opinion that, according to the proper construction to be given to these claims (excepting 43 and 44), the defendant's tool does not escape infringement by having the grasping portion of the handle connected with the head block by a lower neck or arm, and leading the supply duct through it.To accomplish this, the duct has first to pass through that portion of the handle which is to be grasped by the operator, and this it effectively does, even though it only traverses the end of it sectionally.It is by the introduction of the pressure supply duct through the medium of the handle in this way that the further device, which is common to both tools, is made possible, of a throttle valve set in the grasping portion, by which the pressure is put under easy and complete control of the directing hand of the operator, and it is of this situation that the defendants in the tool which they have designed have sought to obtain the benefit.To allow it to stand is to permit them to appropriate, without regard to the doctrine of equivalents, the whole principle of the invention, making the patent by which it is supposed to be protected practically of no value.

It is to be noted that the interpretation of the claims in question which we so adopt does away with any controversy over the effect of the proceedings in the Patent Office as disclosed by the file wrapper, of which much is made.We accept for the purposes of this case all that can in any event be legitimately claimed for the argument of counsel addressed to the examiner, which is there found; that is to say, that the pressure supply duct shall extend, not simply through the handle, but through the grasping portion of it, holding, as we do, that even with that construction put upon the patent the defendant's tool offends.At the same time it is to be observed that the meaning of counsel in this connection is not entirely clear, and whatever be the concession contained in it, not having been carried into the patent by any change in the claims as made, we by no means agree that it limits the terms of such claims as finally allowed.Acme Flexible Clasp Co. v. Carey Mfg. Co. (C.C.)96 F. 344;Society Anonyme Usine v. Rehfuss (C.C.)75 F. 657;Daylight Prism Company v. Marcus Prism Company (C.C.)110 F. 980;Diamond Drill Company v. Kelly (C.C.)120 F. 282.We further recognize that claim 45, which speaks merely of the pressure supply duct extending through the handle, saying nothing about the grasping portion of it, may possibly be entitled to a broader significance than we have thought necessary to give it or the other associated claims.Accepting the narrower construction, which is all that we need to do, the defendants are nevertheless found within in, and to that extent infringe.

So do they with regard to the throttle valve, which is the other element of the combination in question.This they have located the same as the plaintiff, in the grasping portion of the handle, and it operates equivalently to control the admission of fluid pressure into and through the duct.So far as claims 42 to 45 are concerned, no particular form of construction or mode of operation is specified in them, and...