*168On Petition for Rehearing.
A petition for rehearing has been filed, specifying error in the interpretation of claim 12 as set forth in the original opinion. It is contended that the effect of such interpretation is to disregard an important feature of the claim, namely, the expression “without feeding the type wheel” in connection with means for continuously feeding the paper for line spacing. The specification in suit, it is true, with considerable detail sets forth means for feeding the paper line by line without moving or rotating the type wheel in either direction, the same remaining in a fixed position.
Now the controlling question is whether the claim as modified by the disclaimer is strictly limited to a mechanism for continuously feeding successive line spaces without permitting any movement whatever of the type wheel. The answer must be found in a consideration of the Merritt & Joy patent in connection with the improvement in suit, for, as heretofore stated, in the former patent the paper was fed by the return movement of the carriage which contacted it with the lever (Figure 2) and depressed the type wheel actuating the rolls for feeding the paper, and it was absolutely necessary for the type wheel to be fed forward in order to feed the paper for line spacing. Now, does the defendant avoid infringement by modifying its machine so that the paper cannot be fed a second line space (quoting from defendant’s brief) “without feeding the type wheel a true letter space movement; that is, feeding it out to at least the second letter space and returning it again” ?
From my examination of the Merritt & Joy machine and the prior art generally in connection with the present invention, I have no doubt that in the patent in suit the phrase “without feeding the type wheel” was intended to mean without moving it to the right for creating power to directly feed the paper for line spacing on the return of the carriage, as I have heretofore explained was done in the Merritt & Joy structure. Such a construction, however, defendant urges is equivalent to reading out of the claim entirely the words “without feeding the type wheel,” and McCarty v. Lehigh, 160 U. S. 110, 16 Sup. Ct. 240, 40 L. Ed. 358, and Westinghouse v. New York, 119 Fed. 874, 56 C. C. A. 404, are cited in support of the argument that no element, not present, is readable into a claim for the purpose of making out a case of invalidity or infringement. But such adjudications do not apply to the present case as the movement of the type wheel carriage to the right in defendant’s machine is not expressly for the purpose of feeding the paper as in the Merritt & Joy patent. Indeed, defendant’s movement of the type wheel one letter space to the right for successive line spacing occurs because of the operation of keys at the transmitting office which method of operation also obtains in complainant’s machine.
There is no substantial feeding of the type wheel in defendant’s machine, but merely a negligible movement to the fight, which certainly does not successfully avoid the intendment of the specification and claim, whatever may be said of the phraseology of the latter. But it is urged that the claim as interpreted does not inform the public how *169the machine may be constructed; that if the type wheel, in spite of. the plain wording of the claim, may be moved any number of spaces, so long as it is not fed by the movement of the carriage, then manifestly the claim is unduly broadened. It is not within the province of the court to point out how far to the right the type wheel can bo moved on the shaft without infringement, but it is sufficiently clear that in defendant’s adaptation the movement of the carriage was not to create power for feeding the paper which, as in complainant’s machine, is fed by the constantly rotating drive shaft (when in rotation), and the slight initial movement cannot, I think, be considered as anything other than an evasion of the claim.
A decree may now be entered, but on notice to the solicitor for the defendant.