April 6, 1936
JAMES MFG. CO. ET AL.
Appeal from the District Court of the United States for the Western District of New York.
Before MANTON, SWAN, and CHASE, Circuit Judges.
MANTON, Circuit Judge.
This suit is for infringement of claims 1, 2, 3, and 5 of the Smith patent, No. 1,262,860, for an incubator granted April 16, 1918, on an application filed October 26, 1916. Claim 1 has been held invalid in Smith v. Hall (C.C.A.) 83 F.2d 217, decided this day. Claims 2 and 3 are similar method claims, and fall for the same reasons as claim 1. With the method claims invalid, there is nothing in claim 5 covering the apparatus to apply the method to support an infringement suit.
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