Davis v. Parkman, 119

• Decision Date: 25 October 1895
• Docket Number: 120.,119
• Citation: 71 F. 961
• Parties: DAVIS v. PARKMAN. PARKMAN v. DAVIS.
• Court: U.S. Court of Appeals — First Circuit

71 F. 961

DAVIS v. PARKMAN.

PARKMAN v. DAVIS.

Nos. 119, 120.

United States Court of Appeals, First Circuit.

October 25, 1895

Joshua H. Millett and Ralph W. Foster, for appellant.

George W. Estabrook, for appellee.

Before PUTNAM, Circuit Judge, and NELSON and WEBB, District Judges.

PUTNAM Circuit Judge.

These are cross appeals. The first relates to claims 1, 2, 3, and 4 of complainant Davis' patent No. 209,960. The second relates to claim 2 of his patent No. 231,017. Each party appealed on the merits of the decree against him, and also the defendant below assigned as error a question of costs. At the bar it was stated that complainant Davis' assignment of error touching claim 3 of No. 209,960 was waived, so that we have to consider only claims 1, 2, and 4.

Claims 1 and 2 relate to certain alleged improvements in rowlocks. As to these the complainant laid down the following proposition:

'In the Davis lock we have a finished lock, shaped only with a view to its function, and providing at every point for the best results, and making special provision for the accommodation of the buttoned oar; a lock universally adopted.'

This contains a suggestion that we are here considering the Davis lock as a whole, which is misleading, and needs to be eliminated from the case. Davis made several improvements in rowlocks, some of which were represented by the lock of 1875 and by that called 'No. 34.' So far as the alleged improvements covered by the patent are concerned, the best case that can be stated for him is in his evidence, as follows:

'Int. Did you make any improvement or change in rowlock No. 34? If so, when? and, if you have such a rowlock, please produce it. Ans. Yes, sir; in the fall of 1876, and winter following. I herewith produce a rowlock.'

The rowlock thus produced and offered in evidence was substantially the same as that described in the specifications in patent No. 209,960. Complainant further testified as follows:

'Int. Please compare this last-named exhibit with rowlock No. 34, and state the difference between them. Ans. This last lock (1876) has a compound curvature in its standard, while the standard of No. 34 has a simple curvature. The 1876 lock has an inset in its sill, while the sill of No. 34 rowlock has no such inset in its sill. This I believe to be the extent of the difference. Int. Is there not a difference in the outward curvature of the holding pins? If so, what? Ans. Yes, sir; the curvature of the holding pin of the 1876 is an important improvement on the one of No. 34, being outward for the purpose of holding the oar when stopping the boat. Int. Please to state whether the curvature is outward more or less in the 1876 lock than in No. 34. Ans. It is more outward in the 1876 lock.'

It is thus plain that the entire advance as to rowlocks claimed by the complainant in the patent under discussion was the compound curvature in the standard, and the inset in the sill. So far as the curvature of the holding pin is concerned, it was simply more outward in the lock of the patent in question; and, as the specification in that patent does not undertake to describe any particular degree of curvature, it cannot be claimed that the increased curvature involved anything of which the law can take notice. Instead, therefore, of discussing the Davis lock as a whole, the only matters involving any alleged novelty are the compound curvature in the standard, instead of a simple curvature, and the inset in the sill. Keeping this fact in view, the claims are very narrow, even if they involve any invention whatever; and the words in the claims, 'as herein described' and 'as described,' must be construed closely in a patent of this class. Duff v. Pump Co., 107 U.S. 636, 639, 2 Sup.Ct. 487, Bragg v. Fitch, 121 U.S. 478, 483, 7 Sup.Ct. 978, and Knapp v. Morss, 150 U.S. 221, 228, 14 Sup.Ct. 81, are apt illustrations of the proper construction of claims in patents for alleged inventions of this character. As to the first claim, the drawings show an outward curvature, in the ordinary sense of the word; that is, a curvature outward from the axis of the boat. We agree with the court below that this is the true construction of the claim, and that the respondent's device does not infringe.

With reference to the second claim, we agree with the observations of the court below, but desire to add that the claim is for an alleged combination which amounts in fact to what is commonly called an 'aggregation.' It may be true that if the lock, as a whole, could properly have been included in this patent, all its various parts might well be considered as combining to produce a joint result; but segregating from the rest of the lock, as this claim necessarily does, the upright and the inset in the sill, the two stand in no true relation to each other as parts of a combination. It is quite clear that the effective work of the inset is in connection with the arm shutting in the upper opening of the lock. This is emphasized by the testimony of complainant, Davis, who repeats the terms of the specification, and says, in substance, that the inset in the sill should be, in regard to depth, in inverse proportion to the offset of the arm, for the purpose of allowing the oar to assume the perpendicular position so necessary in turning a boat, and in relieving the stain on the arm. Except for the arm, or something accomplishing the same purpose, there would...