JOHNSON et al. v. McCURDY

JOHNSON et al. v. McCURDY. (Circuit Court of Appeals, Seventh Circuit. April 9, 1901.) No. 744. Patents — Infringement—Rotaby Water Motor. The Bardsley patent. No. 509,644, for a rotary fluid motor, is not infringed by a dental spittoon made in accordance with the Hurlbut reissue, No. 11,696, in which the inner bowl is revolved by a jet of water similar to that employed to revolve the motor of the patent; such feature of the device not being patentable. Woods, Circuit Judge, dissenting. Appeal from the Circuit Court of the United States for the District of Indiana. The action in the Circuit Court was to restrain the appellee from infringing Letters Patent No. 509,644, granted to Edward E. Bards-ley, November 28, 1893, for a rotary fluid motor, assigned to appellants. The infringing spittoon is manufactured in accordance with reissue Letters Patent, No. 11,696, granted September 27, 1898, to Frank Hurlbut, for a dental spittoon. Both the Hurlbut and Bards-ley patents, and other patents bearing upon the controversy, are set out at large, or cited, in Justi v. Clark (this day decided by this court) 108 Fed. 659. R. S. Taylor, for appellants. Samuel E. Hibben, L. L. Coburn, and J. H. McElroy, for appellee. Before WOODS, JENKINS, and GROSSCUP, Circuit Judges. [MAJORITY — WOODS, Circuit Judge.] After the foregoing statement of the case, GROSSCUP, Circuit Judge, delivered the opinion of the court, as follows: Following Justi v. Clark, just decided, the decree of the Circuit Court must be affirmed. The Hurlbut patent is not, in our opinion, and for reasons there stated, an infringement of the Bardsley patent. Nor can the Bardsley patent be construed to rightfully exclude others from using a jet of water, tangentially applied to the inner surface of a bowl, to revolve the bowl. This was a law of nature, well known before the Bardsley device. The decree of the Circuit Court is accordingly affirmed. WOODS, Circuit Judge. For reasons indicated in the case of justi v. Clark, I cannot concur in this opinion, though not clear that the conclusion is wrong. .. •