The defendant, by his answer, denies both infringement and the validity of the patent, and sets up prior patents and uses by way of anticipation, and as showing the prior state of the art as well. Infringement is the only issue which requires serious consideration on the view I take of the undisputed testimony; and the inquiry as to infringement depends wholly upon the rule of construction which is applicable to the claims of this patent. The contention on the part of the defendant calls for a narrow rule which would, in effect, limit infringement to the precise construction shown in the drawings and specifications, founding such view upon the terms of reference and limitation found in the claims, and upon the alleged slight advance over the prior art in the invention. If such is the rule which must be applied, it is manifest that the variations in the defendant’s device are sufficient to avoid infringement. That there is patentable invention in the device described is not fairly disputable upon this record. It is true that the elements which enter into the combination are not new, when separately considered, and that the use of a pair of *158lugs, of a threaded tie-bolt arranged for tightening the band, and of other components of the device, were not novel in their application, in one form or another, to adjusting and fastening hoops or bands. But the novelty and merit of the combination clearly appears both in the ready adjustment by which the bands can be applied without requiring accurate measurement and preparation at the shops, and by which it is fastened by the mechanism of the lugs, without rivets or other means tending to weaken the band. Neither of these important results was accomplished or fairly approached in the prior art, and the accomplishment of both results by the means devised was a distinct advance in that art, and, unless this meritorious character of the invention is lost through terms of restriction in the claims of the patent, the invention is entitled to recognition by fair, if not liberal, construction. Bundy Mfg. Co. v. Detroit Time-Register Co., 36 C. C. A. 375, 94 Fed. 524. In making the application for patent the device and its purpose were well described, but the claims of invention were not stated with desirable clearness and breadth. No limitation was imposed by action in the patent office, and I am not satisfied, under the circumstances shown, that the set phrases of reference to the specifications must be held of such force as to limit the grant to the precise construction of each element as described, thus destroying any value in the patent; but am of opinion that a plain equivalent performing the same function in the combination is covered by the patent. So construed, it is clear that the defendant’s device is a mere colorable deviation. Much stress is placed upon an asserted difference in principle, — that one holds the band ends by a “bending grip,” whilst the other provides a “friction wedge.” It appears to me sufficient that the “bending grip” is produced by each, and necessarily so from the form in which the head is made and used in each, the difference being in degree only. The patents issued to the defendant, and appearing in the record, are not referred to in the argument on behalf of defendant, and I do not regard them as material.
Decree will enter in accordance with the prayer of the bill.