then made and three new claims were written, the first of which is as follows:

In a curtain-rod, the combination, with a rod B, of a sliding tube C, having its onter end reduced to hold an inclosed spring from longitudinal movement, a spring held in said sliding tube, and a tip carried by said sliding tube and adapted to bear against the window-casing, substantially as described.

The second and third claims referred to particular features of the device and are not important in this case. The first and second claims were rejected

on the patent to La Dow, in connection with patent to Smyth, both of record.

The patent to Charles La Dow-No. 297,136, dated April 22, 1884— was for a suspensory rod, which consisted of a rod provided at one end with a socket-button and at the opposite end with a nut upon the screwthreaded end of the rod. The frictional contact with the opposing surfaces of the window-casings was effected by the rotation of the screw-threaded rod. The patent to James R. Smyth-No. 192,663, dated July 3, 1877-was for an improvement in a rotating window. shade roller, so that the roller could be made longer or shorter. The only part of the device which seems to have any relation to the patented device of the patent in suit is that the axle of a pulley-wheel at the end of the roller is held against the bearing, which is attached to the casing, and by which the roller is supported, by the tension of a spiral spring, and thus the roller is prevented from being detached from its bearings. The roller is not held between the two casings by frictional contact. These two references seem to have little connection with the invention of the patent. But the real imperfection of the claim was that it did not clearly and with precision express how the various parts co-operated with each other. Thus by "a sliding tube reduced to hold an inclosed spring from longitudinal movement" the draftsman obviously meant that the reduced end was the means which held the spring from longitudinal movement; but the operative character of the combination was much better expressed by the language subsequently employed.

The defendant insists that the language of the claim, as finally amended, which was that the spring was held from longitudinal movement by the reduced end of the tube, requires that the reduced tube should prevent the spring from moving longitudinally in either direction, and that such requirement compels the reduction to take place by compression. If this construction was necessary, in view of the state of the art, or of the limitations in the specification, or of the requirements of the Patent Office, it would merit favor; but it is not required by either of those considerations. The specification was coextensive with the actual invention, and described three ways in which the spring could be prevented from being pushed through the end of the tube-by compression, or by forming an internal flange, or by indenting the end so as to hold the outer end of the spring from longitudinal

movement. The claim requires the end to be reduced in diameter, and specifies that the spring was to be held from longitudinal movement by the reduced end, the specification having particularly described three ways in which the end of the spring could be thus held. The claim does not limit the invention to such means of reducing the internal diameter as shall entirely prevent the spring from movement. The defendant took one of the methods of construction described in the specification and included in the claim. It is not of importance that it did not take the best method which was so described.

The defendant's remaining answer to the charge of infringement is that, by a proper construction of the claim, the reduced end is to form the entire seat for the neck of the tip, whereas in the defendant's device the tip is said to be carried or have its seat by that portion of the end of the tube back of the reduced portion, which is of full diameter. The point seems too wire-drawn to require discussion. The specification said that "on the reduced outer ends of the sliding tube CC are placed the tips D D." This part of the patented invention consisted in the fact that the reduced end of the sliding tube received or carried, or upon it was placed, the neck of the tip.

The decree of the Circuit Court is affirmed, with costs.

[U.S. Circuit Court of Appeals-Second Circuit.]

CORNELL T. BATAILLE.

Decided April 19, 1894.

68 O. G., 916.

MADDOX AND HUMPHRIES-FOLDING GATES-CONSTRUED NO INFRINGEMENT. Letters Patent No. 213,119, issued March 11, 1879, to Maddox and Humphries, for an improvement in folding gates, examined and construed to be essentially for a picket gate sliding upon its support, and Held not to be infringed by a lazy-tongs gate with a single central support.

APPEAL from the Circuit Court of the United States for the Southern District of New York.

Mr. Charles N. Judson and Mr. Willis W. Fowler for the appellant. Mr. Francis Forbes for the appellee.

STATEMENT OF THE CASE.

This was a suit by John M. Cornell against Achille Bataille for alleged infringement of the first claim of Letters Patent No. 213,119, issued March 11, 1879, to Maddox and Humphries, for improvements in folding gates. The Circuit Court dismissed the bill, (56 Fed. Rep., 840.) Complainant appealed.

Before WALLACE, LACOMBE, and SHIPMAN, Judges.

LACOMBE, J.:

The patent relates to a folding gate capable of moving to and fro in a straight line across a gateway, so that when folded up it will shut in

upon itself close against the jamb and leave the gateway substantially free. The claim is for:

1. A gate for hallways and other places, consisting of a series of upright pickets, and a series of cross and connecting braces or bars pivoted to the pickets at two or more central points, and having upper and lower points of connection arranged to slide vertically within or upon the pickets, whereby the latter are adapted to slide upon a base-support across the gate-opening without changing their parallelism or their positions vertically, substantially as described, for the purpose specified.

The following drawing, being Fig. 1 of the patent, shows the kind of gate more readily than would an extended description:

The defendant has also a patent for a folding gate, No. 358,956, dated March 8, 1887. The particular gate complained of is slightly modified from his patent and is shown below:

verse rod above. The circuit judge held that such a gate did not infringe the first claim of complainant's patent. To determine that question it is first necessary to settle what construction is to be put upon the patent. An examination of the art shows that the invention of Maddox and Humphries was not of that primary, pioneer, or fundamental character which admits of a broad and comprehensive interpretation of its claims. Folding gates were old. Some of them consisted mainly of upright bars or rods, called "pickets," connected together so as to admit of their being moved back against the door jamb or extended therefrom. Others consisted mainly of diagonal intersecting rods so arranged as to form the movable lattice-work known as a "lazy-tongs." In some instances the support for the outer end rested on a base; in others it was suspended from above.

The defendant contends that the patent in suit must be restricted to a gate in which the pickets are the characteristic feature and that it is not infringed by his own gate, in which the lattice-work or lazy-tongs

is the characteristic feature. In both gates-in fact, apparently, in all folding gates-the upright next the inner jamb is in no proper sense a picket at all. It is fastened rigidly, has no movement of its own, and is practically only the permanent support upon which the mechanicallyoperating combination of lazy-tongs, cross-braces, bars, pickets, or what not, is bottomed. It has no different function from that of a gate-post itself, into which, in the older varieties of lazy-tongs gates, (Merritt, 6,957; Bresee, 60,678,) the inner end of the lattice-work was inserted. Lattice or lazy-tongs gates had also before the patent in suit been provided with an upright at the outer end so pivoted to the lazy-tongs that at one point the pivot had no vertical motion, while at the other points the vertical motion induced by the operation of the gate was provided for by allowing the pivots to play in slots in the upright. Such devices are.shown in Frazee, 172,852, and in Suead, 67,143, the above sketch being Fig. 1 of the last-cited patent.

The fixed pivots in the jamb-upright and in the movable or sliding upright FF' are in the same horizontal plane, and inspection of the movement of a lazy-tongs when in operation shows that if it is to be fastened to objects which are themselves to have no vertical motion and is also to be given free play the fixed pivots (i. e., fixed in the sense of having no vertical motion) must be located in the same horizontal plane. Looking at the Snead gate, it is manifest that the greater the space it has to close the weaker it will be, having nothing to support it when open except at the ends. The gate of defendant meets this difficulty by means of a central support to which the lazy-tongs are pivoted by a fixed pivot in the same horizontal plane as the fixed pivots at the jamb and outer movable upright, while the other connections between the lazy-tongs and the central upright are made to slide vertically, thus avoiding any vertical motion in the upright itself.

Figl

B

In the complainant's gate the central upright or pivot is arranged in like manner, the plane or fixed pivots being located centrally in complainant's gate and at the bottom in defendant's. In this device of a central upright support for a folding gate arranged to be pivoted to the lattice-work in the same way as the outer upright-namely, with the fixed pivot in the same horizontal plane as is the pivot which fastens the lattice-work to the jamb-upright-it is hard to see any patentable invention. It is not necessary, however, to pass upon that point. The complainant has no claim for that single simple improvement, and a brief review of the history of his application shows that the claim here relied on is only for a combination, which his assignors have specifically described, and to which description they must, in view of the state of the art, be closely confined.

In 1877 Maddox, one of the patentees of the patent in suit, took out a patent for a folding gate, No. 191,984, shown above.