(dissenting as to the umbrella case patent). I concur in the opinion of the court in so far as it relates to the patent, No. 504,944, for the tubular umbrella stick. I am, however, constrained to express a dissent from the conclusion which the majority of the court has reached with respect to the umbrella case patent, No. 504,945. In determining the question of infringement here, we ought not to lose sight of the fact that the object of this invention is to convert an umbrella, -when the cover is applied thereto, into an operative and useful cane. The function of the “internal socket” is thus stated in the specification:
“The socket, B, completely fills the space between the casing, A, and the projecting stick and ferrule of the umbrella, so as to render the end portion of the case perfectly rigid, as is necessary in order to properly simulate a cane.”
The first claim of the patent does not require that this socket shall be immovably attached to the leather casing, or to the ferrule at the lower end of the leather casing, whatever may be the limitations of the second and third claims, which are not here involved. Now, the defendants, instead of placing the socket, in the first instance, within the leather casing, put the socket, under the name of a “tip,” upon the projecting end of the umbrella stick; but when the umbrella, with the false tip thereon, is inserted into the leather casing, we have the identical structure of the first claim of the patent. The evidence is conclusive that this false tip subserves no useful purpose whatever to the umbrella itself. Incontestably, the sole object in thus using the false tip is to fill the space between the leather casing and the projecting stick and ferrule of the umbrella when the latter is put into the casing. In my judgment, the contrivance to which the defendants have resorted in order to defeat the plaintiff’s patent is a mere subterfuge, and should not avail them as a defense. Hoyt v. Horne, 145 U. S. 302, 309, 12 Sup. Ct. 922; Devlin v. Paynter, 28 U. S. App. 115, 12 C. C. A. 188, and 64 Fed. 398.