The patent involved is Prickett reissue No. 15,881, July 29, 1924, covering a metal device for use in holding flooring sleepers in place on a concrete base. The original patent was Prickett No. 1,381,740, issued June 14, 1921.

The cause was referred to a master who reported findings of fact and conclusions of law. The issues before the master were (1) anticipation; (2) construction to be given claims of the above patent; (3) existence of infringement; and (4) whether defendant had acquired intervening rights between the issues of the original patent and of the reissued patent. The conclusions of the master as to each of the above issues were as follows: (1) The reissued patent is valid as to all claims; (2) the patent is not a pioneer patent and must be given a narrow construction limited to performance of "an old function in a 'more facile, economical and efficient manner'"; (3) the device of defendant is "nearly, if not quite, as much of an improvement over Prickett's device as Prickett's device was an improvement over the prior art" and does not infringe; (4) certain devices manufactured by defendant between the is sue of the original patent and the reissue would have infringed two claims of the reissued patent but did not infringe the original patent, hence no damages or profits therefor should be allowed plaintiff; also, as the machinery installed by defendant for the manufacture thereof could be utilized for manufacturing the new device put out by defendant, no allowance or relief should be allowed defendant on account of such investment; also, as defendant has entirely abandoned the above earlier device, no need for injunctive relief to protect plaintiff on that account. The master's report was approved by the

court.

In the view which we take of the result which should be reached on three of the above issues (2, 3 and 4), we have found it unnecessary to determine the validity of the patent involved here. We think the master and the court were right as to those three issues and that the bill was properly dismissed.

In the construction of reinforced concrete

building, the wooden flooring is attached to wooden strips, called sleepers. It is impracticable to insert these strips in the concrete separating the different stories while that concrete is being poured or laid. The method is to pour the concrete; permit it to harden; later, to place the sleepers thereon and to secure them rigidly in place. This invention relates to the method of securing the sleepers in place. Prior to Prickett, the

generally used method had been to use a sleeper which was bevelled so that the base was wider and sloped on the sides to a narrower top. These bevelled sleepers were laid on the concrete floor slab and were leveled by putting wooden wedges under them. They were held in place by sand bags, props or otherwise. When the sleepers were so located, a layer of concrete was poured upon the floor slab between the sleepers until it filled these spaces nearly to the top of the sleepers. When this concrete hardened, the sleepers were firmly imbedded and ready for the flooring to be nailed thereto. The Pricket device (called clip) was a small strip of metal so cut and bent that two legs thereof could be thrust into the floor slab before it hardened, and having a horizontal base for the bottom of the sleeper and two arms projecting upward to hold the sleeper in place. These clips resulted in a considerable saving over the old method and had other advantages which made them much more desirable. [1] While the usual method of fastening these sleepers, prior to Prickett, was as above outlined, there are clips and devices in this and related arts which would prevent the Prickett device from being a pioneer invention and entitled to the broad construction of its claims which a pioneer invention can properly urge. This prior art is shown in the following patents: Van Der Vygh No. 497,039, January 11, 1898; Dobbin No. 752,530, February 16, 1904; Fox and Wilson No. 985,891, March 7, 1911; Killeen No 1,264,089, April 23, 1918; and Murphy No. 1,302,578, May 6, 1919. The Prickett clip is at most an improvement in a field which was Therenot new when Prickett entered it. fore the claims of the Prickett patent must be narrowly construed to cover only the par

ticular device and cannot be extended to include all devices of a similar character which perform the same functions.

So construing the Prickett patent, the question of infringement must be answered by a comparison of the Prickett clip and the clip made by defendant. The device is well described in claim 1 of the reissued patent

as follows:

construction, comprising a single piece of "A support for concrete and wood floor material bent to form a central member, downwardly extending parts at the ends thereof for insertion into a concrete bed, the ends of the downwardly extending parts being rebent upwardly and projecting upwardly above said central members, for the purpose of receiving a sleeper between them."

This construction is accurately illustrated in Figures 1, 2 and 3 thereof as follows:

floor slab and is, in turn, the base for the sleeper to rest upon. Defendant's clip has no such member nor any member performing a similar function. The cross member of defendant's clip is intended to rest within the body of the floor slab and functions only to connect and hold at proper distance the vertical members and to afford additional anchorage in the slab. Also, Prickett bends his first member down and then upward leaving the clip. Prickett used a strip. Defendbends his upward and then downward leaving the metal ends in the floor slab. This difference in order of bending is not merely formal. It seems to be essential because of the difference in the material used to form

the clip. Prickett used a strip. Defendant used a wire. The differences in order of bending are necessary to give each clip the desirable anchorage in the floor slab. Giving the Prickett patent a narrow construction in the application of equivalents, as we think we should, we think the above differences in construction are enough to escape infringe

ment.

As to intervening rights, the facts are concisely stated by the master as follows:

"The evidence shows without dispute that after reissue of the Prickett patent, defendant sold 150,000 of the clips, Exhibit 16, which I have held to infringe claims 4 and 5 of the reissue patent, but not to infringe the original patent.

The evidence shows that all of these clips were made by defendant during the summer of 1922 and nearly two years before the reissue was granted, and were sold after the reissue of the Prickett patent.

[3] "It also shows that defendant applied to its attorney for an opinion as to the coverage of the Prickett patent and was advised that it did not cover the clip Exhibit 16. Apparently Cole was willing to rely upon the adIvice of his attorney and as the conclusion reached by the special master is that the clip Exhibit 16 did not infringe the original Prickett patent, it must be held that defendant had the right to dispose of the 150,000 old clips remaining on hand after the reissue without liability to plaintiff therefor.

"There is no evidence that defendant has gone to any large expense for machinery to manufacture Exhibit 16 that cannot be utilized in the manufacture of Exhibits 18 and 19, so there are no further equities to be protected."

We approve and adopt his conclusions on that matter.

The decree should be and is affirmed.

LUND v. UNITED STATES. Circuit Court of Appeals. Eighth Circuit. April 11, 1927.

No. 7457.

1. Indictment and information 71-Information or indictment must state nature of offense, so as to sufficiently apprise accused of offense charged.

An information or indictment must state nature of offense so accurately and clearly as to sufficiently apprise accused of offense charged, so that proper defense may be made, and, if accused be convicted thereon, that judgment rendered will be a bar to another prosecution for same offense.

202(7)—

2. Indictment and Information Clerical error in Information, as charging maintaining nuisance in 1925, when date in fact was in 1924, held cured by verdict (Comp. St. § 1691).

1691), preventing mere clerical error from inIn view of Rev. St. § 1025 (Comp. St. § validating an indictment or information, clerical error in information, charging maintenance of nuisance as of October 25, 1925, when date in fact was in October, 1925, held cured by verdict of guilty, where trial proceeded on theory that true date was as alleged, and accused had knowledge that she was charged with offense as of that date.

3. Criminal law 1167(1)-Clerical error in indictment, resulting in no harm, will not be permitted to defeat or retard justice.

Manifest clerical error in indictment, re

sulting in no harm to defendant, should not be permitted to defeat or retard justice.

4. Criminal law 599-Filing information for maintaining nuisance on day set for trial on charge of sale of liquor held not to require continuance.

Filing information charging maintenance of a common nuisance on day set for trial on information charging sales of intoxicating liqof surprise, since there could have been no uor held not to require continuance on ground surprise as to nature of offenses, both of which were commingled.

5. Criminal law 1036(1)—Question of validity of search warrant, presented for first time in appellate court, was too late.

Presenting question relative to validity of search warrant for first time in Circuit Court of Appeals was too late.

6. Criminal law 878 (3)-Finding of not guilty of sales on October 23d and 24th is not conclusive on question of maintaining nuisance on 25th.

Finding of jury that defendant was not guilty of sales of intoxicating liquor on October 23d and 24th held not conclusive as to question of maintaining nuisance on October 25th.

In Error to the District Court of the United States for the District of Minnesota; Joseph W. Molyneaux.

Bertha Lund was convicted of maintaining a common nuisance, by keeping a place where liquor was sold, and she brings error. Affirmed.

Frank J. Collins, of Minneapolis, Minn. (McDonald, Johnson & Collins, of Minneapolis, Minn., on the brief), for plaintiff in er

ror.

James A. Wharton, Asst. U. S. Atty., of St. Paul, Minn. (Lafayette French, Jr., U. S. Atty., of St. Paul, Minn., on the brief),

for the United States.

KENYON, Circuit Judge. Plaintiff in error was tried on two informations, consolidated for the purpose of trial; one in two counts charging the sales of intoxicating liquor contrary to law on October 23 and 24, 1924, respectively. The other charged the maintenance of a common nuisance on October 25, 1925, by keeping a place where intoxicating liquors were kept and sold in violation of law. Plaintiff in error was acquitted on the sale charges and convicted on the nuisance charge. A motion for arrest of judgment was filed, which raised for the first time the question that the information charged the maintenance of a nuisance as of October 25, 1925, when the information was filed April 8, 1925.

[1] An information or indictment must state the nature of the offense so accurately and clearly as to sufficiently apprise the accused of the offense charged, so that proper defense may be made, and, if accused be convicted thereon, that the judgment rendered will be a bar to another prosecution for the same offense. United States v. Cook, 17 Wall. 168, 174, 21 L. Ed. 538; Rosen v. United States, 161 U. S. 29, 34, 16 S. Ct. 434, 480, 40 L. Ed. 606; Ledbetter v. United States, 170 U. S. 606, 18 S. Ct. 774, 42 L Ed. 1162. Section 1025, Rev. St. U. S. (Comp. St. § 1691), prevents a mere error of form from invalidating an indictment or information. It is as follows: "No indictment found and presented by a grand jury in any District (or Circuit) or other Court of the United States shall be deemed insufficient, nor shall the trial judgment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant." While, of course, an information is faulty which states the alleged date on which an offense was committed as after the time of the finding of the in

In

an offense as of a particular date, the prosecution is not bound to establish the offense as

of that particular date. It is well settled that, if the date specified in the indictment is an erroneous one, the prosecution will not be precluded from proving the offense at the time it in fact was committed, if at any time within the statutory period of limitation, and in cases such as this three years." See, also, Taylor v. State, 169 Ark. 589, 276 S. W. 577; Saunders v. State (Okl. Cr. App.) 244 P. 55; Hume v. United States (C. C. A.) 118 F. 689.

[2] Both parties in the case seem throughout the trial to have considered the date of the alleged offense as October 25, 1924. The evidence introduced covers a period from October 20 to October 25, 1924. Frequent reference throughout the case is made by counsel on both sides to the date of the offense as October 25, 1924. The clerk of the court made the docket entry as to the information that it charged violation of the National Prohibition Act (Comp. St. § 101384 et seq.) as of that date. The court instructed the jury that defendant was charged by the information with having maintained a nuisance on October 25, 1924. No objections were made or exceptions taken to the instructions. The accused knew full well, as her testimony shows, that she was charged with an offense as of that date. The error in the date apparently was not discovered until about the time a motion in arrest of judgment was filed. Clearly the erroneous date was a mere clerical error, and went to the question of form rather than substance. No

one connected with the trial of the case was deceived thereby. No demurrer or objection was made to the information, and in our judgment this apparent clerical error was cured by the verdict of guilty.

In Dunbar v. United States, 156 U. S. 185, 191, 192, 15 S. Ct. 325, 328 (39 L. Ed. 390) the Supreme Court states the applicable rule as follows: "Further, no objec

jection was made to the sufficiency of the indictments by demurrer, motion to quash, or in any other manner until after the verdict. While it may be true that a defendant, by waiting until that time, does not waive the objection that some substantial element of the crime is omitted, yet he does waive all objections which run to the mere form in which the various elements of the crime are stated, or to the fact that the indictment is inartificially drawn." In Goode v. United States, 12 F. (2d) 742, 743, this Court said, "The sufficiency of the indictment was not challenged until after conviction, and its defects if any were cured by the verdict." ." See, also, Shilter v. United States (C. C. A.) 257 F. 724; Thompson v. United States (C. C. A.) 283 F. 895; Brewer v. United States (C. C. A.) 290 F. 807; Terrell V. United States (C. C. A.) 6 F. (2d) 498; Gray v. United States (C. C. A.) 9 F. (2d) 337.

It is practically the unanimous voice of the authorities that where the sufficiency of an information or indictment is not questioned by demurrer or appropriate remedy, any defect of form, though not of substance, is cured by a verdict of guilty, and unless such defect affects substantial rights of defendant, any objection based thereon will not be considered by the appellate court. [3] It is to be noted, also, that the information in referring to the maintenance of the common nuisance uses the language "heretofore." Something could not be "heretofore," if it was hereafter. It also states that the nuisance had been maintained, which, of course, negatives any idea that it was attempting to charge something which had not been done. The language shows the information intended to charge the offense as of the 25th day of October, 1924. We are satisfied plaintiff in error, by the clerical error as to date, was deprived of no constitutional right to be advised of the nature of the offense and suffered no prejudice thereby. As said by the court in Adams v. United States (C. C. A.) 246 F. 830, 831: "A manifest clerical error in an indictment, resulting in no harm to the defendant, should not be permitted to defeat or retard justice."

[4] Plaintiff in error argues she was taken by surprise, by the filing, on the day set for the trial of the first information, of the other information charging the common nuisance. There could have been no surprise as to the nature of the offense, for all the offenses were somewhat commingled, and the surprise was not such as to lead to a request for a continuance. However, the question was

in no way preserved for the consideration of the appellate court.

[5] The same may be said as to the argument concerning the validity of the search warrant. That question is first presented in this court, which is too late.

[6] As the jury found defendant not guilty as to the sales charges, it is claimed the evidence is insufficient to sustain the verdict of guilty on the nuisance information. Defendant could have been guilty of maintaining the nuisance, even if no sales were made on the dates charged in the first information. The finding of the jury that defendant was not guilty of the sales charged to have been made on the 23d and 24th of October, 1924, is not conclusive at all on the question as to the maintenance of a nuisance on October 25, 1924. We have carefully read and considered the evidence. There is no necessity of reviewing it here. We are satisfied it was ample to sustain the verdict of the jury. The judgment is affirmed.

WOOD V. BOYLAN et al. Circuit Court of Appeals, Eighth Circuit. April 12, 1927.

1. Patents

No. 7538.

173-Liberality of construction of claims and broadening or narrowing of equivalents depends on whether patent is basic or combination.

Whether a patent is a basic patent, constituting pioneer invention, or is a combination, determines the liberality of construction to be given claims thereof, and the resulting broadening or narrowing of the field of equivalents. 2. Patents 170-Patent may be limited by terms on which allowed and accepted or by state of art.

A patent may be defined and limited by the terms on which it was allowed by Patent Office, and accepted by patentee, or by state of the art.

3. Patents 328-1,326,908, for device for separating particles of crushed ore of relatively same size from watery mixture by use of inverted cone, held combination, requiring narrow construction.

Boylan patent, No. 1,326,908, for a device to separate particles of crushed zinc and lead ore bearing rock of relatively same size from a device, and release of collected solids through watery mixture by use of an inverted cone bottom outlet, controlled by a valve governed by the weight of the loaded cone, held a combination patent, covering a secondary device, requiring close construction to avoid prior art,

and to remain within the accepted meaning re

vealed in file wrapper.