(dissenting). The invention secured by the second claim of letters patent No. 483,385 was not, in my opinion, the combination of numerous mechanical elements, or the combination, of the specific parts of which the mechanical device there claimed was' Composed, but it was “the two parts spraying tube having a side open-, ing in the lower member and a hollow coupling connecting the two members, said coupling having a side opening to register with the side opening in the tube substantially as described.” The description in the specification was that the upper or air tube should be connected to the lower or liquid tube by a hollow coupling with a nipple at each end, which might be screwed into the respective tubes, and that the nipple which entered the , lower tube should be flattened on one side and should be provided with a side opening which should register with a similar side opening in the liquid tube. This specification disclosed two new things: (1) A spraying tube in which the atomizing blast was applied to the liquid within, instead of without the liquid tube; and (2) a spraying tube separable into three parts in lieu of one separable into two parts or of one made in a single piece. The purpose of the improvement was to better atomize liquids. This end was accomplished, by applying the blast of air within the tube which contained the liquid, instead of without it, as had been done previous to this invention. The location and registering of the side openings in the air tube and the liquid tube conditioned this improvement, and it was unaffected by the union or separation of the various parts of the spraying tube. The question which the patent presents becomes, therefore, really a question of construction. If it be interpreted to secure a spraying tube composed of three separable parts, it is clearly void for want of invention, for,, where, as in the case at bar, the performance of the function of the device is unaffected thereby, the division of a spraying tube into two or *234three parts or the construction in a single piece of one formerly made in several parts exhibits no invention. Bundy Mfg. Co. v. Detroit Time-Register Co., 94 Fed. 524, 538, 36 C. C. A. 375, 389; Mabie v. Haskell, Fed. Cas. No. 8,653; White v. Walbridge (C. C.) 46 Fed. 526. If, on the other hand, the patent be construed to secure the novel device which is described in the specification and claimed in the second claim whereby the blast of air is applied to the liquid within, instead of without the liquid tube, it may be sustained; for there was no such de~ vice or application in the prior art, and the evidence is that the same amount of atomizing may be produced with this device with one-half the power required to produce it by the use of the old devices, such as those of Lighthill, Shurtleff, and Semple, by means of which the blast was applied on the outside of the liquid tube by driving it across an orifice therein. Patents are contracts between the government and the inventors, and in cases of ambiguous terms or of doubtful validity that construction which sustains and vitalizes should be preferred to that which strikes down and paralyzes them. Reece Button-Hole Machine Co. v. Globe Button-Hole Mach. Co., 10 C. C. A. 194, 198, 61 Fed. 958, 962; Consolidated Fastener Co. v. Columbian Fastener Co. (C. C.) 79 Fed. 795, 798; American Street Car Advertising Co. v. Newton Street Ry. Co. (C. C.) 82 Fed. 732, 736; McSherry Mfg. Co. v. Dowagiac Mfg. Co., 41 C. C. A. 627, 633, 101 Fed. 716, 722.
As the patent in hand is susceptible of two interpretations, one that it is a patent for the construction of a spraying tube in two or three parts instead of in one or two parts and is therefore void for want of invention, and the other that it is for a new and useful mechanical device whereby the liquid may be more efficiently and economically atomized within than it had theretofore been without the liquid tube and it is therefore valid, the latter interpretation should be preferred to the former. This seems to me to be the natural and rational construction of the patent, also, because it is the only one which secures the improvement in the spraying tube which affects its function. The registering side openings in the air tube ¡and the liquid tube facilitate the'atomizing of the liquid and constitute the improvement, while the union or separation of the parts of the spraying tube in no way affects the improvement or the facility of performance of the function of the device.
It is said that the patentee did not describe and claim this function or use of his device in his specification or claims. But he clearly described and claimed his mechanical device which performed this function. He told how to construct and operate it, and no one can make and operate it in the way he described and avoid its performance-of this useful function better than any preceding device, and the fact that the defendants have adopted this device in preference to all which preceded it is a demonstration of this fact. The complainant claimed this spraying tube with these side openings substantially as described, and it was described in the specification with a hollow air tube flattened on one side inserted in the liquid tube, and provided with a side opening into the liquid tube, which registered with the opening in the latter into the glass globe, -so that- the application of the air blast could not fail-*235to atomize the liquid within the liquid tube. The words “substantially as described” refer back to the specification, and the specification and the claim must always be read together to ascertain the actual invention the patentee made and to protect him in its use. Seymour v. Osborne, 11 Wall. 516, 547, 20 L. Ed. 33. If the spraying tube is made as the patentee describes it in his specification and claims it in his second claim, it becomes a device to atomize the liquid within the liquid tube by means of the registering side openings there described and claimed; and when one has plainly described and claimed his mechanical device and has secured a patent for it he has the right to every use to which it can be applied, to every way in which it can be made to perform its function, whether or not he described, claimed, or was aware of these uses when he claimed and secured his monopoly. Roberts v. Ryer, 91 U. S. 150, 157, 23 L. Ed. 267; Miller v. Manufacturing Co., 151 U. S. 186, 201, 14 Sup. Ct. 310, 38 L. Ed. 121; Goshen Sweeper Co. v. Bissell Carpet-Sweeper Co., 72 Fed. 67, 19 C. C. A. 13; Frederick R. Stearns & Co. v. Russell, 85 Fed. 218, 226, 29 C. C. A. 121, 129; Manufacturing Co. v. Neal (C. C.) 90 Fed. 725; Tire Co. v. Lozier, 90 Fed. 732, 744, 33 C. C. A. 255, 268. These rules of law have forced my mind to the conclusion that the true construction of the second claim of this patent is that it secures the mechanical device with the side openings there claimed and described in the specification whereby the liquid is atomized within the liquid tube by means of the registering openings in the air tube and the liquid tube. This device was novel. The patentee was the first to conceive, to describe, or to use it. It was useful, so useful that the efficiency of the spraying tube was doubled thereby, so useful that the defendants preferred to appropriate it to using any of the prior devices whereby the liquid was atomized without the tube, and it was in my opinion patentable.
The only improvement in this patented device which affects the function, the principle, the mode of operation of the spraying tube was the side opening from the air tube into the liquid tube registering with the side opening of the liquid tube into the globe. This improvement the defendants have appropriated, and in my opinion they have thereby infringed the complainant’s patent. It is true that they have made their spraying tube in two parts, while the tube described by the complainant is composed of three parts. But the union or separation of the parts neither conditions nor affects the invented improvement, which is conditioned alone by the location of the registering side openings, and which is the same in construction and in effect in the spraying tube of the defendants and in that of the complainant. No broad signification cf the doctrine of mechanical equivalents is required to bring this appropriation within its meaning. The defendants have appropriated the very device and improvement which the patentee described and claimed, the device of the registering side openings whereby the air blast was conducted through the side opening in the air tube into the liquid tube at a point opposite the side opening in the liquid tube whereby it atomized the liquid within the liquid tub.e instead of without it. The second claim of this patent is not, in my opinion, a claim for the *236combination" of the various parts, tubes, or holes, which constitute the •spraying tube of the patentee, nor is the form of the tube nor the number of its parts the distinguishing characteristic of the invention here .patented. The invention claimed and secured is the mechanical de•vice whereby the liquid-is atomized by means of the registering side openings within the liquid tube, and the defendants may not lawfully escape their infringement of this patented invention by the form of the tube or by the separation or union of its parts which they use while they appropriate as they do the principle, the mode of operation, and the identical means described by the patentee whereby they accomplish the improved result which he attained. Columbus Watch Co. v. Robbins, 64 Fed. 384, 397, 12 C. C. A. 174, 187; New Departure Bell Co. v. Bevin Bros. Mfg. Co. (C. C.) 64 Fed. 859.
- Claims 2 and 3 of letters patent No. 620,895 are for the combination of an atomizer, a chamber for the storage of vaporized medicaments under pressure, a tube or nozzle leading therefrom, and means of controlling the passage from the chamber, so that the vapor can be stored and delivered for extensive or rapid use.
The absence from a combination of a single essential element of the •patented combination is fatal to it as an anticipation and relieves it ■of infringement. In my opinion the patents pleaded as anticipations are not such for the following reasons: The patent to Emery lacks ■ the essential elements, an atomizer and a chamber where the vapor may be stored. Emery’s chamber for compressed air has no valve or other device in the tube which conducts the air to the chamber whereby it can be kept from returning, and it has no device whereby medicaments may ■be atomized and then introduced into the chamber or stored therein.
The combination shown in the patent to Kennedy fails to anticipate because it lacks the essential elements, an atomizer and means for controlling the passages' from the chambers or bottles provided for atomized vapor, so that the vapor can be stored or applied under pressure. .The tubes which form the inlets to the bottles which contain the liquid are straight pipes whose lower ends extend below the surface of the liquid, and the only effect of applying compressed air to them is to create bubbles in the water. They neither constitute nor contain any atomizing device. The valvé plugs to these bottles are so constructed that ■each opens and closes both the inlet and the outlet pipe of its bottle at the same time, so that the combination contains no device either for . atomizing liquids or for storing vaporized medicaments under pressure.
Patent No. 549,822, to Robertson, fails to anticipate because it lacks any means of controlling the passage of the vapor from the chambers ■ where it is manufactured so that it may be stored and delivered under pressure. There is no valve or other device w.hereby the outlets from • the chambers may be closed so that they do not constitute storage ■ chambers, but are manufacturing chambers only.'
The rejection of-claim 17 of the complainant’s application by the board of examiners of the Patent Office did not estop the patentee from -sustaining his patent for the combination described in claims 2 and .3, ‘although’It.was the-same' combinationddescribed. in claim. 17, because *237he did not acquiesce in that rejection, but insisted upon his claim and secured a patent for his combination through the allowance by the Patent Office of claims 2 and 3. It is only when the inventor acquiesces in the rejection of his claim for a patent for his invention that he is es-topped by the rejection. National Hollow Brake-Beam Co. v. Interchangeable Brake-Beam Co., 45 C. C. A. 544, 565, 106 Fed. 693, 714.
The defendants. have adopted a combination which contains all the mechanical elements of that of the complainant and which accomplishes the same result by substantially the same mechanical means. For these reasons, I am unable to concur in the opinion of the majority or in the judgment of affirmance in this case.