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Bristol v. Otis Elevator Co.

CIRCUIT COURT OF APPEALS, THIRD CIRCUIT


September 18, 1931

BRISTOL
v.
OTIS ELEVATOR CO.

On Petition for Rehearing.

Per Curiam.

The petition for a rehearing or modification has had our careful consideration. We cannot agree with the contention that our construction of the patent is at variance with a decision of the Supreme Court, Hannah M. Smith, Administratrix, etc., v. Magic City Kennel Club, Inc., et al., 282 U.S. 784, 51 S. Ct. 291, 75 L. Ed. 707, handed down subsequent to the filing of our opinion. That case announced no new principle of patent law, but simply applied the familiar principles of that law to the facts of the case before it. That is precisely what we do in the case before us. It is true the claim before us has the element of "a flexible resilient feeder within said duct and projecting therefrom." In our opinion we showed that the defendant's tank or distributor was in function an inclosed duct, or, as we expressed it, a "confining duct which prevents the sidewise escape of oil." We also showed that this distributor or functional duct "has attached to it and projecting from it, the flexible, resilient feeder which plaintiffs' claim calls for and which was new in the art, in that no one had used, or had occasion to use, such a feeder along vertical lines." Such being the physical facts, it is clear that when one side wall of the tank or distributor is part of the inclosing duct, so also is the opening in the side wall through which the oil passes a continuation of the inclosing duct, and when the defendant's flexible, resilient feeder reaches into such side wall opening, it is just as much within the confining duct, for all practical and functional purposes, as though the outlet on the side wall were extended by a pipe into the middle of the tank and thus complies with the literalism of the claim. In other words, while the defendant physically has simply an outlet through the side of the tank, yet that outlet functionally extends into the tank because it draws oil from every part of the confining tank in precisely the same way it would do if, instead of there being a hole in the tank side, defendant had a pipe extending from the side wall to the center of the tank. In other words, while departing from the plaintiffs' device in form, the defendant has taken in substance and function the plaintiffs' claim in its novel entirety. Regarding defendant's outlet device as the functional equivalent of the plaintiffs' "flexible resilient feeder within said duct," we adhere to our decision. Accordingly, defendant's motion is denied.

19310918

© 1998 VersusLaw Inc.



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