CRAMER MFG. CO. v. NIMS PUMP CO.

CRAMER MFG. CO. v. NIMS PUMP CO. (Circuit Court of Appeals, Seventh Circuit. December 12, 1925.) No. 3563. Patents <§=/68(2) — Patentee cannot recapture, under a broader claim, rights under canceled claim dedicated to public. Patentee, haying freed and dedicated to public any rights which it might have had under a canceled claim, cannot recapture those rights under a broader claim. 2. Patents <§=328 — 1,459,160, for elbow pump casing, not infringed. Patent No. 1,459,160, claims 4 and 6, for an elbow pump casing, held not infringed. Appeal from the District Court of the United States for the Eastern District of. Wisconsin. Patent infringement suit by the Nuns Pump Company against the Cramer Manufacturing Company. Decree for plaintiff, and defendant appeals. Reversed, with directions to dismiss. Frank E. Dennett, of Milwaukee, Wis., for appellant. Percy S. Webster, of Stockton, Cal., for appellee. Before ALSCHULER, PAGE, and ANDERSON, Circuit Judges. [MAJORITY — PAGE, Circuit Judge.] PAGE, Circuit Judge. The District Court sustained plaintiff in its suit, charging infringement of claims 4 and 6 of letters patent No. 1,459,160, issued in June, 1923. The defense was noninfringement and invalidity. The original claim 4 was rejected on Wenzel patent, No. 718,557, issued January 13,1903, and was canceled by plaintiff. That claim and the claims in suit are as follows: Claim 4. 1. An elbow pump casing. 2. A bearing sleeve projecting through one bend of the elbow to a point immediately adjacent the open end of the bend. 3. A shaft extending through the sleeve. 4. An impeller on the shaft. 5. Wings on the impeller bent to extend longitudinally along the outside of the sleeve and having a pitch set in a direction opposite to the direction of rotation of the sleeve. Original Claim 4. (1) A pump casing having (2) a hearing sleeve, (3) a shaft turntable in the sleeve, (4) an impeller on the inner end of the shaft, and (5) wings on the impeller bent backward from the end of the shaft and having a pitch set in a direction opposite to the direction of rotation of the shaft Claim 6. 1. An elbow pump casing. 2. A hearing sleeve projecting through one bend of the elbow to a point immediately adjacent the open end of said bend. 3. A shaft extending through the sleeve. 4. An impeller on the shaft. 5. The impeller for that portion thereof immediately surrounding the shaft being shaped to draw the water thereto ward and beyond said portion being shaped to force the water received from the first portion directly toward the other opening of the other bend. Plaintiff printed in its brief the following figures: The only difference between claim 4 and the original claim 4 is the difference between the Figures A and C, and we agree, as claimed by plaintiff, that Figures B and C are substantially identical. The difference between Figures A and C is just the difference that the Patent Office must have found between the original and the present claim 4, viz. in the original the wings were “bent backward,” and in claim 4 here the wings were “bent to extend longitudinally along the outside of the sleeve” (italics ours). Figures B and C both read upon the original, but not upon claim 4 here. It is true that claim 6 is broader than claim 4, but, as plaintiff freed and dedicated to the public any rights it might have had under the canceled claim 4, it cannot recapture those rights under the broader claim 6. We are of opinion that defendant does not infringe claim 4 or claim 6, as the latter is necessarily limited by the dedication made in the canceled claim, as well as by the Wenzel patent itself. The decree is reversed, with direction to dismiss the bill for want of equity.