On Rehearing.
(June 18, 1894.)
WOOLSON, District Judge.The court herein having found for defendant, plaintiff applied for a rehearing, and the case has been reargued by counsel for plaintiff and for defendant. In the light of this reargument, I must modify so much of the opinion rendered on former hearing as treats of the drinking cap of the patented invention. In the former opinion, filed herein, this cap is considered as being so connected with or fastened to the body of the trough as to be water-tight, so that the water would rise in this cap to a level higher than the top of the horizontal partition. Plaintiff has' exhibited, in working operation, a model of his patented “stock hydrant” or drinking trough. This demonstrates the incorrectness of the former decision on this point. The phrase used in the letters patent is unfortunate, so far as expressing the use of this cap is concerned. In fact, what is called in the letters patent a “drinking cap” is not a cap at all. The sides which form what is miscalled a cap are used solely to prevent the material which is used as packing about the trough from falling into the water in the trough. So that the letters patent should have spoken of these places as drinking spaces or places, rather than drinking caps. Without an inspection of the patented invention in operation, a person reading the letters patent, and applying the specifications and claims to the illustrations therein given, would naturally, if not necessarily, regard these caps as intended to contain water.
The point yet remains, as decided in the former decision, as to the horizontal partition, which, in the letters patent, constitutes an *333essential feature of the combination and claim therein described. Plaintiff insists that this horizontal partition finds its mechanical equivalent in the side walls of the central chamber of defendant’s drinking trough, and that, therefore, defendant has infringed on the letters patent held by plaintiff. After carefully considering the arguments presented by counsel, and the cases cited by him, I am not able to regard this claim as sustained by the evidence. The case of Stirrat v. Manufacturing Co., 10 C. C. A. 216, 61 Fed. 980. decided by the United States circuit court of appeals for the Eighth circuit at”its May, 1894, term, while not on all fours with the rase at bar, presents some points of useful analogy. In that case iho water-heating device consisted of the combination of a hollow, long, center plate of stove, etc., with a supply pipe, etc. The device claimed as infringing consisted of the combination of a solid, long, center plate of stove, etc., fastened to a water box, etc., with a supply pipe, etc. After considering the state of the art at time of issue of the letters patent, and distinguishing between a pioneer invention in a certain line, and one which merely improves on devices or mechanisms which have been in use (a reasoning which might be largely and well applied in case at bar), Judge Sanborn, voicing the opinion of the court, says:
The claim for a specific combination or device in a patent is a renunciation of every claim to any other combinations or devices for performing the same functions that are apparent from the face of the patent, and are not color-able evasions of the combination or device claimed. The statute requires the invention to “particularly point out and distinctly claim the part, improvement or combination which he claims as his discovery.” Rev. He. § 4887. When, under this statute, the inventor has done this, he has thereby disclaimed, and dedicated to the public, all other improvements and combinations ap-I>arent from his specifications and claims, that; are not evasions of ilie device and combination he claims as his own. The claims of Ms patent limit his exclusive privileges, and his specifications may be referred to to explain and to restrict, but never to expand, them.
And the opinion thereupon proceeds with its clear and forcible reasoning, as applied to the evidence introduced in the case, and the status of the patent with regard to the state of the art at date of its issuance, and closes with the declaration that:
When [the patentee] made his invention, there was no patentable novelty in a combination of a water box bolted 1o the long center with the supply and eduction pipes used by appellee; and this fact, and the specific limitation he imposed upon himself in his claims, have forced us to the conclusion that his patent was properly restricted by the court below to the special feature of construction he described and claimed, viz. the hollow, long, center through which the water was caused to pass, In combination with the connecting pipes.
Tbe reasoning of the case cited is specially applicable to tbe cast' at bar, especially to tbe horizontal partition, which “specific limita lions the patentee had imposed upon himself in his claims." Because of the press of other matters requiring present attention, Í am unable to present at length the reasons impelling me to this conclusion, but must content myself with the reference to the case just cited, and with adhering to the former decision reached, and that decree be herein entered dismissing the bill. To all of which, *334at tlie time, plaintiff duly excepted. And plaintiff is given 60 days from this date in which to have signed and filed bill of exceptions, and such certificate of evidence as plaintiff may be advised.