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NATIONAL METER COMPANY v. YONKERS WATER COMMISSIONERS.

decided: April 17, 1893.

NATIONAL METER COMPANY
v.
YONKERS WATER COMMISSIONERS.



APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

Author: Blatchford

[ 149 U.S. Page 48]

 MR. JUSTICE BLATCHFORD delivered the opinion of the court.

This is a suit in equity, brought in the Circuit Court of the United States for the Southern District of New York, by the National Meter Company, a New York corporation, against the Board of Water Commissioners of the city of Yonkers, another New York corporation, founded on reissued letters

[ 149 U.S. Page 49]

     patent of the United States No. 10,806, granted February 8, 1887, to the plaintiff as assignee of Lewis Hallock Nash, for improvements in water-meters. The application for the reissue was filed December 18, 1886, on the surrender of original letters patent No. 211,582, granted to said Nash, January 21, 1879, for improvements in water-meters, the application therefor having been filed September 4, 1878. The claims of the reissue alleged to have been infringed are claims 3, 4, 5 and 6, which are as follows:

"3. A piston for water-meters, pumps, and motors provided with internal water passages, and having alternate bearing points or projections and recesses adapted, by means of a cylinder-chamber having alternate bearing points or projections and recesses, to have an eccentric or side-rocking movement within and upon continually-changing lines across the centre of said chamber to effect its division at two or more points on its sides into receiving and discharging spaces cc, which communicate with the inlet and outlet.

"4. A piston for water-meters, pumps, and motors having alternate bearing points or projections and recesses adapted, by means of a cylinder-chamber having alternate bearing points or projections and recesses, to have an eccentric or side-rocking movement within and upon continually-changing lines across the centre of said chamber to effect its division at two or more points on its sides into receiving and discharging spaces cc, which communicate with the inlet and outlet, said piston having a free movement within said cylinder, controlled only by the shape of the cylinder, the shape of the piston and the flow of water through the meter.

"5. A piston for water-meters, pumps, and motors having alternate bearing points or projections and recesses adapted, by means of a cylinder-chamber having alternate bearing points or projections and recesses, to have an eccentric or side-rocking motion within and upon continually-changing lines across the centre of said chamber to effect its division at two or more points on its sides into receiving and discharging spaces cc, which communicate with the inlet and outlet, said piston being formed of hard rubber and having a free movement

[ 149 U.S. Page 50]

     within said cylinder controlled by the shape of the piston, the shape of the cylinder, and the flow of the water through the meter.

"6. A piston for water-meters, pumps, and motors having alternate bearing points or projections and recesses adapted, by means of a cylinder-chamber having alternate bearing points or projections and recesses, to have an eccentric or side-rocking movement within and upon continually changing lines across the centre of said chamber to effect its division at two or more points on its sides into receiving and discharging spaces cc, which communicate with the inlet and outlet, combined with ports controlled by said piston itself in its motion within said chamber."

The defences set up in the answer are (1) that the reissue is invalid as to the said four claims, because it was applied for and secured eight years after the grant of the original patent, not for the purpose contemplated by the statute, of correcting any error that arose from inadvertence, accident or mistake, but for the purpose of changing the patent so that it would claim combination of devices which were not the subject of the claims of the original patent, nor described therein as being the inventions of Nash for which he obtained said original patent, in order that, by means of the reissue, the plaintiff might prevent the Hersey Meter Company, which manufactured the meters used by the defendant, and had assumed the defence of the suit, from carrying on its business; and, further, on the ground that Nash and the plaintiff unreasonably and fraudulently delayed undertaking to correct the alleged defects by a reissue, and did not make application for the reissue until the Hersey company had made and sold large numbers of meters of the type in question; and that the reissue was applied for and obtained for the sole purpose of procuring a new patent for other and different inventions from those forming the subject-matter of the claims of the original patent; and, further, that the reissue was procured by deceiving the Patent Office, and by fraudulent and untrue representations to that office, and that any right to the reissue was forfeited by the plaintiff's delay and laches, in not applying

[ 149 U.S. Page 51]

     for it until long after the plaintiff had full knowledge of all the facts upon which such application purported to be based, and long after the Hersey company had made, sold and introduced into use meters identical with those used by the defendant; (2) that Nash did not particularly point out and distinctly claim the part, improvement or combination which he claimed as his invention or discovery, but, on the contrary, wilfully and fraudulently made his claims, in the original patent and the reissue in ambiguous language, intended to mislead the public, with the view of making it difficult to determine the real scope of his claims, and of reserving the right to contend for such interpretation thereof as the exigencies of any particular case might, in his judgment or that of his assignee, require; (3) non-infringement, and that the meter used by the defendant is substantially different, in construction and mode of operation, from the meter of the reissue; and that no invention is shown or described in the reissue upon which is, or could have been based any claim which would be infringed by the defendant's meter.

Proofs were taken, and the case was heard before Judge Wallace, who delivered an opinion, (38 Fed. Rep. 588,) holding that the defendant's meter did not infringe any of the claims in question, and entered a decree dismissing the bill, with costs. From that decree the plaintiff appealed to this court.

We do not find it necessary to consider the question of the validity of the reissue, because we are of opinion that the decree of the Circuit Court must be affirmed on the ground that the defendant has not infringed.

The original patent had eight claims, as follows:

"1. A piston for water-meters, pumps, and motors having alternate bearing points or projections and recesses adapted, by means of a cylinder-chamber having alternate bearing points or projections and recesses, to have an eccentric or side-rocking movement within and upon continually-changing lines across the centre of said chamber to effect its division at two or more points on ...


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