contact faces and openings therethrough, the nozzle contact face having a concavely spherical surface, the other contact face having a dirt cutting circumferential edge portion adapted to be embraced within the spherical surface of the nozzle face and providing the sole contact therewith when the nozzle is pressed against the receptacle element from any one of a plurality of angularly different directions, to make a sealed, substantially non-yielding, lubricant conducting connection between the face oppenings."
Claim 1 of the Butler patent: "The combination with a nipple for receiving lubricant, of a lubricant compressor having a coupling for connecting said compressor and nipple, the coupling comprising a cylinder, a piston movable within the cylinder and having an aperture for the discharge of lubricant therethrough and an apertured seat for engagement with the end of the nipple, and means carried by the cylinder for compressively engaging about the nipple for locking said parts together against longitudinal displacement and actuated by said piston whereby the pressure of the lubricant on said piston will move the piston to forcibly compress said means, while the lubricant is passing through said connecting parts."
The charge of contributory infringement is that defendants manufacture and sell one or more of the elements of the combination claims of the three patents in suit, i.e., the push operated hand type lubricant pump having a leather-gasketed push-contact nozzle of the Manzel combination; the push-contact nipples or fittings with a flat terminal surface at the receiving end bounded by a circular edge, and having a round aperture therethrough of the Zerk combination; and the nipples or fittings having hemispherical terminal tipe and a peripheral groove below of the Butler combination.
No extended discussion of these charges is necessary, for, as we view the case, all of the claims of the three patents in suit must be held invalid under the ruling of the Supreme Court upon the combination claims of the Gullborg patent, No. 1,307,734, in Bassick Mfg. Co. v. R.M. Hollingshead Co. (Rogers v. Alemite Corporation), 56 S. Ct. 787, 791, 80 L. Ed. , opinion by Mr. Justice Roberts filed May 18, 1936. There the Supreme Court was considering the same combination now before this court, i.e., a grease pump, hose, hose coupler, and a grease cup or pin fitting.
Mr. Justice Roberts said:
"It is plain that Gullborg invented improvements of two of the mechanical elements of an old combination consisting of grease pump, hose, hose-coupler, and a grease cup or pin fitting. First, he contrived an improved pin fitting. This he patented as such. No. 1,307,733. Secondly, he invented an improved form of coupler to be attached to the end of the hose leading from the pump to the fitting.Instead of patenting this, as he did the pin fitting, he claimed a combination of pump, hose-coupler, and pin fitting, and embodied in the combination his improved form of coupler. No. 1,307,734, the patent in suit; claims 1-6, 8, and 10. He further claimed the combination between his patented pin fitting and any form of grease gun whether that claimed in his patent or unpatented and old in the art. Claims 14 and 15. The question then is whether, by this method, the patentee, by improving one element of an old combination whose construction and operation is otherwise unchanged, may, in effect, repatent the old combination by reclaiming it with the improved element substituted for the old element. That this cannot be done is shown by numerous cases in this and other federal courts.
" Leeds & Catlin Co. v. Victor Talking Machine Co., 213 U.S. 301, 325, 29 S. Ct. 495, 53 L. Ed. 805, on which the respondent relies, is not in point. There the patent was a pioneer patent and the combination was of elements which were novel and neither of which possessed utility without the other. Each element was necessary to the operation of the other. The invention did not, as here, consist of the mere improvement of one element of an old combination.
"We are of the opinion that the owner of the patents cannot extend the monopoly of its patent for a pin fitting to preclude the use therewith of any grease gun not embodying the improvement in the coupling device evidenced by the patent in suit; and cannot extend the monopoly of the combination patent in suit to prevent the use of a pin fitting which does not infringe the fitting patent, 1,307,733, with a gun having a coupler such as that claimed in the patent in suit."
On this ruling, we conclude that all of the claims of the patent in suit are invalid, because the patentees are merely claiming an old combination whose construction and operation are not changed merely by substituting an improved element of this combination for an old element. The plaintiff's bill will be dismissed.
Findings of fact, conclusions of law, and decree in accordance with this opinion may be submitted.
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