applying the power. The invention is in the device, which may have one, two, or more functions, one of great and another of trifling worth. It may be supposed to have a function which it has not. The patent is upon the device, and not upon the functions, real or supposed; and if the device is appropriated in its essential features it will be an infringement, notwithstanding some change in the location and relation of parts, whereby a doubtful function of little comparative worth is eliminated. At first Scribner, it is clear, believed the up-and-down compensating movement of the armature in the main circuit, irrespective of the action of the regulating magnet, to be an important feature of his lamp; but before the patent issued, without changing the drawing or modifying the structure of his device in the least, he presented an amended specification, in which he repudiated that idea, and described the armature in operation as assuming and holding a definite relation to the magnet. So long as he did not change the structure of his device or invention, he had the right to change the specification, even though he did it with reference to the Sperry patent, which was applied for and issued while his application was pending; and, the specification being as we find it, there is no support for the proposition that for the purpose of preserving the possibility of a function, which the patentee had repudiated before the patent issued, the claims, though worded differently, should be so read as to cover only the exact construction and relation of parts illustrated in the drawing. The proposition is not reasonable, nor, so far as we know, supported by authority.

The first claim of the Sperry patent, and other claims not quoted, are essentially the same as the first and second claims of the patent in suit, and the lamp made by the respondents differs in es sential elements from the complainant's lamp only in respect to the relative positions of the main-circuit magnet and its armature, horizontal parts being made vertical and vice versa.

Our conclusion, therefore, is that the patent in suit is valid, that it belongs to the complainant as assignee of the patentee, and that the respondents before suit had infringed the first and second claims thereof as charged. The decree below, it follows, must be reversed, and it is so ordered.

TEMPLE PUMP CO. v. GOSS PUMP & RUBBER BUCKET MANUF'G

CO.

(Circuit Court of Appeals, Seventh Circuit. October 2, 1893.)

No. 111.

1. PATENTS FOR INVENTIONS-INFRINGEMENT-CHAIN-PUMP BUCKETS. Letters patent No. 347,342, issued August 17, 1886, to Sanford A. Goss, for improvement in expansion rubber buckets for chain pumps, consisting of "the rubber bucket, A, having its largest inward diameter at a', thickened at its lower end to form the inward incline, a, whereby it is adapted to be expanded by moving an interior nut in either direction along the supporting link, substantially as described," is not infringed by buckets made on a model different in shape from the drawing in the specification, since the patent, in consideration of the prior state of the

art, should be limited to the exact bucket shown in the drawing referred to as A.

2. SAME-CONSTRUCTION OF PATENT.

Where certain claims in an application for a patent have been rejected in the patent office, and the rejection acquiesced in by the inventor, the court will not so construe the claim that is allowed as to make it by implication include the rejected claims.

Appeal from the Circuit Court of the United States for the Northern District of Illinois.

Bill by the Goss Pump & Rubber Bucket Manufacturing Company against the Temple Pump Company and others. Complainant obtained a decree. Defendant pump company appeals. Re

versed.

Statement by WOODS, Circuit Judge:

This appeal is from a decree for an accounting and of perpetual injunction against infringement by the appellant, one of the defendants below, of letters patent No. 347,342, issued August 17, 1886, to Sanford A. Goss, assignor to the appellee, for improvements in expansion rubber buckets for chain pumps. The specification and claim of the patent read as follows:

"Be it known that I, Sanford A. Goss, of Chicago, county of Cook, and state of Illinois, have invented certain new and useful improvements in expansion rubber buckets for chain pumps, of which the following is a full, clear, and exact description, that will enable others to make and use the same, reference being had to the accompanying drawings forming part of this specification. This invention relates to an improvement in that class of pump buckets set forth in letters patent No 305,071, granted to me September 16, 1874. The means for attaching the bucket and link in the present device being the same as that shown in said patent, illustration of said attaching means in this case is unnecessary.

"Figure 1 is a side elevation of a pump bucket embodying my improved features; Fig. 2, a vertical section of the bucket proper; and Fig. 3 shows

the bucket doubled back, so as to permit of the expansion nut being adjusted with facility. Referring to the drawings, A represents a bell-shaped rubber bucket mounted on the screw-threaded link, B. The exterior contour of this bucket is about the same as set forth in the patent above referred to. The Improved features consist principally in reversed inclines of the interior of the bucket, so that the expansion cavity has its largest diameter above its lower end, with a gradual diminution in diameter both upwardly and downwardly, or gradually sloping inwardly from the angle or recess, a', and in com

bining the bucket with a screw-threaded link, and an expansion nut adapted to expand the rubber, or present new wearing surfaces, when moved in either direction along the link. Now, by placing the expansion nut, C, having a threaded adjustment on the link, B, in the center of the recess, a', the bucket may be expanded by turning the nut, C, either in an upward or downward direction. The expansion nut is set in recess, a', and for the best wearing results it is first turned or adjusted in the upward direction until it has gradually reached its limit, and the upper part of the bucket has become so much worn that it cannot be any longer expanded in that direction. The nut, C, is then returned to the recess or angle, a', and so adjusted as to bring the bearing surface of the same against the inward incline of the thickened part, a, and thereby expand the lower part of the bucket, and change the exterior bearing or wearing surface, thus not only providing a bucket possessing increased expansive qualities, but also lengthening the life and durability of the same. The thicker part, a, likewise prevents the expanding nut from working off the link. The upper edge of the nut, C, is beveled to correspond to the inner circumferential surface of the bucket, the lower part being slightly beveled or rounded, so as not to present a sharp bearing edge to the bucket. The bucket may be doubled back on the link in the manner illustrated in Fig. 3, in which position it will remain fixed, thus allowing the expanding nut to be readily and conveniently adjusted to a' new position, and, when so adjusted, the bucket is turned back upon the nut, as in Fig. 2, and the rubber or bucket operates as a nut lock, to prevent changing the adjustment, and a guard to prevent the reel or its forks from moving it. The link, B, is provided with the drip groove, b.

"Having thus described my invention, what I claim, and desire to secure by letters patent, is the rubber bucket, A, having its largest inward diameter at a', thickened at its lower end to form the inward incline, a, whereby it is jadapted to be expanded by moving an interior nut in either direction along the supporting link, substantially as described."

The objects of the invention in patent No. 305,071 are stated in the specification to be-First, to prevent the bell-shaped rubber from slipping or turn¡ing upon the link; and, second, to prevent the nut or washer from becoming loosened, displaced, or turning upon its thread, by striking against the reel of the pump; and the two claims are each for the combination of the link, Inut, and rubber as set forth.

The file wrapper of the patent in suit shows that the following claims were first presented: "(1) An expansion bucket for chain pumps provided with the inwardly projecting annular shoulder, a, as and for the purpose set forth. (2) An expansion bucket for chain pumps thickened at the lower end and having the recess, a', as set forth. (3) The combination with an expansion bucket, provided with the shoulder, a, and the recess, a', of the link, B, and the expanding nut, C, whereby said bucket may be expanded by adjusting the nut in either direction on the link B, and the nut prevented from working off and lost, all substantially as set forth." The first and second were "refused on patents to Hathaway, No. 158,075, Dec. 22, 1874, and Miller, No. 304,442, Sept. 2, 1884; the third on Temple, No. 290,282, Dec. 18, 1883;" and thereupon the following were proposed: "(1) In a chain pump the combination of an expansion bucket provided with the inwardly projecting shoulder, a, and the recess,, a', the link, B, and the expanding nut, C, of greater diameter than the opening formed by the inwardly projecting shoulder, a, substantially as described. (2) An expansion bucket having a chamber formed by the recess, a', and the inwardly projecting shoulder, a, having the inner inclined face, substantially as described." These were "held to be answered by Temple and Hathaway, of record, and therefore refused," and thereupon the specification was amended in particulars which need not be stated, and two claims proposed, of which the first was allowed, after a voluntary withdrawal of the second, which was as follows: "(2) The elastic bucket, A, constructed as described, in combination with the link, B, and expansion nut, C, substantially as described."

The respondents admitted making and selling rubber buckets for chain pumps, but in view of the prior art, and of the concessions made by Goss in order to obtain the patent in suit, as shown by the file wrapper, denied both invention and infringement. The prior art, as averred and proved, consists

of the following letters patent, of which illustrative drawings are given: No. 158,075, to Hathaway; No. 178,208, to Van Sant; No. 178,735, to Churchill; No. 218,746, to Hoyt; No. 269,809, to Miller; No. 290,282, to Temple; and No. 304,442, to Miller.

Mr. Bates, an expert, examined on behalf of the complainant, testified, in substance, that the complainant's bucket is secured to a metal link, on the thread of which a nut travels to expand the bucket; that, as shown in the patent, the interior of the bucket is contracted in both directions from a point of greatest diameter, the lower edge being thickened because the greatest wear comes at that point; that the most important features of the construction are the thickened lower edge, and the fact that the nut is always inside the bucket, so that the rubber acts as a lock, and as a guide to prevent contact of the nut with the reel or its forks; that the buckets of the defendants are of like construction and parts, the interior of the rubber growing smaller in both directions from a point of greatest diameter, and the bottom edge thickened so as to secure all the advantages of the complainant's patent; that the variations of the interior of the bucket are less pronounced than in the buckets of complainant, but that this is a difference of degree merely, and is made up for by the increased size of the nut, which forces the rubber, when in use, to the shape shown in complainant's patent; that in both buckets there must be a downward movement of the nut in order to expand the lower edge; that in each, when the lower edge is worn off, an upward movement of the nut will expand the thick upward portion, so as to compensate for the wear on the lower part; that the complainant's device is not anticipated by any of the patents in evidence; that Temple's second patent shows a bucket which is practically the same as that of the complainant; that it has a rubber, which is thick at the top where it embraces the link, and is thick at the bottom so that the lower edge will draw inward below the nut; that it also has a screw-threaded link and nut thereon, which acts upon the interior of the rubber, and is locked in the position to which it is adjusted by the action of the rubber embracing it, due to the thickness of the lower edge, which also protects the nut from the reel; that in all other respects it acts just as complainant's bucket does; that the variations in the shape of the rubber simply amount to taking material from the inside next to the cavity, and putting it upon the outside, so that the action and effect are the same; that in one figure the cavity is shown to be of uniform diameter, but the thickened lower edge of the rubber is present and acts in the same way as in the other form; that in either the straight or flaring cavity a nut larger than the largest part would produce exactly the same form of cavity shown in the Goss patent, in which there is no limitation upon the size of the expanding nut; that before the date of that patent the forms of link and nut shown were old, and also their use in connection with a concavo-convex rubber, as shown in the Churchill patent, and also an expansion rubber bucket with Interior cavity and with thickened lower edge, as shown in one of Miller's patents; that it was also old to effect the expansion of the rubber either by moving the nut or by moving the rubber along the link, as was intended by Churchill, and also to protect the nut by locating it within the cavity of the bucket, as Temple undertook to do in 1883; that in Temple's bucket of 1889, with the straight wall cavity, there is no point which corresponds with the angle or recess, a', of the Goss patent, but that in Fig. 1 the top of the cavity corresponds to all intents and purposes with the point of greatest internal diameter of the Goss patent, because it is the point of greatest internal diameter in the Temple device, and the point at which the wall is thinnest, and from which the nut can be started and moved downward, gradually expanding the rubber, and bringing new surfaces into contact with the well tube; that while not literally the exact rubber shown in the Goss patent, it must be held to be the mechanical equivalent, especially when used with a large nut; that at larger than the cavity of the Temple bucket, started below the top and moved upward, would expand the rubber above it as it moved, and if moved downward would expand that below it as it moved that way, in both particulars the same as in the Goss device; that Goss improved upon prior buckets by adding a reverse incline, so that the rubber could be expanded usefully by moving the nut downward; that in that respect his bucket is distinguished from all prior buckets, and is identical with defendant's bucket; that "the specification of the patent describes the old operation of expanding by an upward movement of the nut, and the new operation of expanding by the downward movement of the nut, in such a mixed-up way that it is hard to tell from the specification whether the patentee