US SUPREME COURT DECISIONS

Where the patents sued on are not pioneer patents and do not embody a primary invention, but are only improvements on the prior art and defendants' machines can be differentiated, the charge of infringement cannot be maintained.

In view of the state of the art and what passed in the Patent Office, this Court cannot regard the Kitselman patent of January 18, 1887, for wire fabric machines, as a pioneer patent, but its claims must be limited in their scope to the actual combination of essential parts as shown, and cannot be construed to cover other combinations of elements of different construction and arrangement.

The same rule applies to the other patents in suit, and, tested by it, infringement was not made out.

This was a suit in the Circuit Court of the United States for the district of Indiana for infringement of claims 1, 2, 3, 9, 10, 11, 15, and 20 of letters patent No. 356,322, issued January 18, 1887, to Alva L. Kitselman and Davis M. Kitselman for an improvement in wire-fabric machines; of claims 1 and 2 of letters patent No. 289,507, issued December 4, 1883, to W. J. Davisson for an improved machine for making wire fabrics; of claims 2, 3, and 4 of letters patent No. 357,067, issued February 1, 1887, to Theodore M. Connor for improvement in machines for forming netted wire fabrics, and of claims 1 and 10 of letters patent No. 505,607, issued September 26, 1893, to John C. Pope, for wire-fabric machines.

Defendants denied patentable novelty of each of the patents, and also denied infringement, and alleged that they constructed their wire fabrics as licensees under and pursuant to letters patent No. 502,025, issued to W. D. Whitney December 24, 1895, for improvements in wire-fabric machines.

The cause was heard by District Judge Baker, who held chanrobles.com-red

Page 189 U. S. 9

that the claims of the four patents sued on were for specific constructions which defendants did not use, and that there was no infringement of either of the letters patent, and dismissed the bill. The case was carried to the United States Circuit Court of Appeals for the Seventh Circuit, and that court, one of its members dissenting, reversed the decree, and held that the defendants had infringed the first, second, eleventh, and fifteenth claims of the patent issued to the Kitselmans. 108 F.6d 2.

The writ of certiorari was granted on the petition of the Kokomo Fence Company, and afterwards the cross writ on the petition of the Kitselmans. The machine company alleged error in the judgment of the court of appeals sustaining and finding infringement of the Kitselman patent, and the Kitselmans alleged error in that court in not sustaining and finding infringement of the Davisson, Connor, and Pope patents.