
    AMERICAN CAN CO. v. M. J. B. CO. M. J. B. CO. v. AMERICAN CAN CO.
    Nos. 4774, 4812.
    Circuit Court of Appeals, Third Circuit.
    May 12, 1932.
    John C. Carpenter, of Chicago, Ill., for American Can Co.
    Richard J. Cook, of Seattle, Wash. (William G. Mahaffy, of Wilmington, Del., of counsel), for M. J. B. Co.
    
      Before BUFFINGTON, DAYIS,' and THOMPSON, Circuit Judges.
   BUFFINGTON, Circuit Judge.

In the court below, American Can Company (hereafter called American) owner of patent No. 1,750,251, granted March 11,1930, to J. M. Young, for a “combination tearing strip and friction closure can,” filed a bill against the M. J. B. Company (hereafter called M. J. B.) charging the latter with infringement of the third claim' thereof. 'That court held the claim was not infringed. From such -decree, American took an appeal, assigning for error the holding of noninfringement, and M. J. B. took an appeal, assigning for error the omission of the court to decree the patent invalid.

The patent concerns a tin container for canned foods and the like. The field for invention was narrow, as will be seen from an opinion in the Ninth Circuit reported in 48 F.(2d) 144, on an earlier ease between these parties on a previous patent of Young. The question involved in the present will be understood from the accompanying sketches, one showing the can of the patent, the other the can of the defendant.

In the prosecution of his application, Young, the patentee, was forced to make as one of the elements of Ms claim “a friction wall within the can and of diameter less than the diameter of the portion of the body pro-: vided with said encircling score line.” Such' a structure is shown in the sketch by a body bent inwardly upon itself and the bent part located within the container wall. But the sketch of defendant’s structure shows the body is bent outwardly upon itself and the bent part located outside the container wall.

In view of these fundamental facts, we are of opinion the court below committed no error in holding defendant’s structure did not infringe, and, in view of the fact that the court below thorougHy discussed the whole subject-matter, we refrain from filing an opinion which would be but a restatement of what has already been said. Having found the defendant did not infringe and therefore the bill must be dismissed, the court committed no error in not passing on the question of validity, which would only become pertinent had the defendant infringed.

So holding, both appeals are dismissed.  