(after stating the facts as above). Whenever defendant's machine works it opens the door, through which the telescopic ash hoist is to project itself, by a straight thrust. It has no lever and nothing wherewith to exert leverage. This is a fundamental difference between the two pieces of apparatus.
If it be attempted to read the first, claim of Rutau’s patent upon Ernst’s device, the latter is found to have no “means depending within the hoistway” upon which other means are “pivotally supported,” which latter means are “connected * * * with said door’s.” Consequently Ernst has not “depending means” and “pivotally supported means” co-operating with a standard in order to automatically operate a door.
[1] If (as has been often said) a claim reads upon an offending apparatus, that fact suggests but does not prove infringement; but *672if a claim will not read upon that which is said to infringe, there can be no infringement.
There are many ’reported instances of most benevolent reading of claims to bring that which really copies a man’s invention within the scope of an inartificially drawn definition, i. e., claim.
[2] But in this instance the claims are accurate, and assumed their present shape after applicant had demanded as his most general Haim the following:
“In a device of the character set forth, a'hoistway, hoisting apparatus therein having'a vertically movable standard, means for elevating such standard, doors covering such hoistway, and mechanism actuated by such elevating means for automatically operating said doors.”
In other words, Rutan thought himself entitled to prevent any one else from opening a door or doors over a telescopic hoist by means of any mechanism obtaining its power from the rising hoist itself.
He had no right to such claim, and was told by the examiner that “claims should be limited to what applicant has actually invented.” He did invent, and was entitled to a patent for, the embodiment of the idea of opening the door by means of a link actuated by a lever, which in turn was driven by the rising hoist. But the general idea of pushing up a cellar door by a rising standard was old with Berry & Gale No. 740,080, and the same idea, for the specific purposes of an ash hoist, had been shown by Sundh No. 955,922. If Rutan had obtained and been entitled to the claim he asked for but did not get, Ernst would have infringed; as it is, he does not.
We therefore agree with the court below that within the scope of the very precise claims in suit, the Rutan patent is valid; but no infringement is shown.
Decree affirmed with costs.