
    MARLIN FIREARMS CO. v. KELLOGG.
    (Circuit Court of Appeals, Second Circuit.
    April 6, 1906.)
    No. 176.
    Patents — Infeingejient—Bkkecii-Loading Guns.
    The Hepburn patent, No. 434,062, for a breech-loading gun, claim 27, which relates to an improved hook extractor, held not infringed.
    Appeal from the Circuit Court of the United States for the District of Connecticut.
    For opinion below, see 139 Fed. 31.
    Milton E. Robinson, for appellant.
    Robert C. Mitchell, for appellee.
    Before WARD ACE, R ACOMBE, and TOWNSEND, Circuit Judges.
   PER CURIAM.

This appeal questions the correctness of the decision of the court below that claim 37 of the complainant’s patent (No. 434,063, for breach-loading guns, granted to Hepburn August 13, 1890) was valid, and had been infringed by the defendant.

The part of the specification upon which the claim is founded is as follows:

“The solid walls of the brooch boli thus take all the strain brought upon the shank of the extractor, and there are no holding screws to come loose or wear out. On one side of the shank is a projection which fits in a corresppnding recess formed in the side wall of the long recess, as shown, and which serves to lock the extractor in place and prevent it from being pulled endwise out of its sent when extracting the shell. The extractor thus made is simply set in the recess without other fastening; it being prevented from rising by the top wall of the frame when the breech bolt is in position, but being free to be lifted out when the boll is detached. By this construction I avoid the use of any pin or screw and am enabled to remove the extractor whenever desired by the thumb and finger without the use of a tool.”

The claim is as follows:

“(27) In combination with a reciprocating breech bolt for a gun, the spring hook extractor, t, set in a- longitudinal recess or groove cut in said bolt in position to hold the shank of the extractor against the strain of its elastic hook and [in the act of engaging the cartridge] by the opposite solid walls oí said groove; the said extractor being held against longitudinal movement in said groove by an enlargement arranged to fit in a corresponding recess in the bolt, substantially as described.”

The claim covers an improvement upon spring-hook extractors in breech-loading guns, such as had been shown in the prior patent to Barton (original and reissue), and the earlier patent to Hepburn, of April 2, 1889, which improvement consists in details of construction which may possibly have involved invention ; but if so, invention of a very limited scope. The extractor of the defendant does not have one of these details of construction which, by the claim,, is made essential. It is not “held against longitudinal movement in said groovfe by an enlargement” [the projection, w] “arranged to fit in a corresponding recess in the bolt.” The extractor of the defendant’s gun is secured by the use of a pin, and cannot be removed “by the thumb and finger” or “without the use of tools”; and, therefore, differs materially from the extractor described in the specification and specified in the claim. The pin in the defendant’s gun passes not only through the extractor, but entirely through the breech bolt. It is not an equivalent of the projection, because the invention described in the specification consists in part in dispensing with the pin or screw and substituting therefor the projection.

The decision of the court below practically makes the claim a new one, and broadens it to cover an extractor which, if it could have been the subject of a patent, is not the subject of the claim.

Because infringement was .not established, the decree is reversed, with costs, and with instructions to the court below to dismiss the bill, with costs.  