
    WATTERS et al. v. KNY-SCHEERER CORPORATION.
    No. 72.
    Circuit Court of Appeals, Second Circuit.
    Dec. 11, 1933.
    
      Clarence G. Campbell, of New York City, for appellant.
    Mock & Blum, of New York City, for appellecs.
    Before L. HAND, SWAN, and CHASE, Circuit Judges.
   SWAN, Circuit Judge.

This patent relates to an apparatus for use by hospital nurses in emptying and washing bedpans. The bowl or hopper into which the contents of the pan is to be emptied eonneets with the sewer and is capable of being-flushed by a properly directed stream of water under the ordinary pressure of the water supply of the hospital. By pressure of the foot upon a pedal, a cover of the hopper, nearly vertical, but tilted toward the rear at the top, is caused to swing down to a horizontal position so that the inside of the cover forms a shelf upon which the bedpan may he set between two pairs of curved arms which hold it firmly in place. The cover is then elevated j,y hand, and, when closed, water is turned 011 an(j so directed through a perforated nozzje within the hopper as to wash the bedpan both inside and out. The cover is arranged to f¡t tightly when closed so as to prevent the escape of water or air, and a vent pipe carries away noxious fumes. The cover is also shown as locked by a latch bolt which is re-Jeased by operation of the pedal. Lndoubteaty the machine is more sanitary, more economleal f ,sPaee 111 .a bo,sPltal roo“’ and more speedy m operation than prior devices. Indeed, the validity of the patent is conceded. At the trial the only defense asserted was noninfringement of any of the twelve claims in suit, and on this appeal the only error relied upon is the finding of infringement.

Two types of machines manufactured by the appellant axe charged to infringe, Exhibits A and B. They differ between themselves only in that Exhibit B has a soft spring whieh aids gravity in holding the cover closed against the force of the washing spray. Each has a baffle plate attached to the inside of the cover and forming the shelf for the bedpan. The weight of this plate acts by gravity, when the cover is in its rearwardly tilted, closed position, to keep it closed. The differencos between the defendant’s devices and the washer of the patent in suit, as pointed out by the defendant’s expert, are (1) that the t t c íi defendant’s device has no lock for the cover; . , ,. ,, • j. i, (2) that the cover is not tight against tho w. , , 4 4. ■ washer body; (3) that there are not two pairs . J v, . ., ,, . . r of curved arms to Md the pan in place upon the cover; and (4) that the ^aet pedal means of the patent are not used. The District , 7 7i j, j 7.4.7 Court held that none of the differences was , .. ,, „ . , 4 4, 7. 1 ,1 outside the range of equivalents to which the patent was entitled. This is challenged upon the Patent Office history as shown by the file wrapper. •

The first attempted distinction may bo most conveniently discussed in connection with claim 2, which reads as follows:

, . . “2. A bed pan washer comprising a vertical hopper set within a wall and having its face inclined rearwardly at the top, a cover hinged on a horizontal axis to swing over the face of the Copper m one position and present a shelf receptive of a bed pan whem in another position, and pedal means tor first releasing and thereafter initially actuating the cover permitting it to drop by gravity into a horizontal position.” .

It is urged by the appellant that this specifies three distinct steps in the operation of the coyer by pedal means: (1) to release it, that is, to withdraw the latch; (2) to initially move it just beyond the vertical position; and (3) to permit it to drop by gravity. As originally presented, this claim called merely for ‘ means foi■ actuateg the cover. lo meet objections of the Examiner, the specihe limitations which divide the operation . , ,, , -47 7 , 7 mto three steps were introduced by amend-j . , -1 , , . . . , . ment. A patentee may not broaden his claim by dropping an element which he was com-polled to include iu order to secure allowance. Shepard v. Carrigan, 116 U. S. 593, 597, 6 S. Ct. 493, 29 L. Ed. 723; Deitel v. Unique Specialty Corp., 54 F.(2d) 359 (C. C. A. 2). Since the claim recognizes “releasing” as something preceding “initially actuating” the cover, we think the defendant is right in the contention that “releasing” means “unlateh-ing,”_and that infringement is avoided by omitting the latch.

But it does not follow that the word “releasing” necessarily has so limited a meanjng in the other claims. Claim 3, for example, calls for “foot operated means for releasing the cover, said cover opening by gravity upon its release.” Here it is clear that “releasing” includes movement of the cover far enough for gravity to operate, which it cannot do until the rearwardly tilted cover passes the vertical line. As to claim 3, therefore, the abSGnce of a latch cannot avail the defendant.

Similarly as to claim 1, which requires ,L, , •, , ., , , , a “means operated by said pedal to release and , A ,, T . „ lower said cover.” Lowering does not occur ... ,, , , 0 . , until the cover has been overset so far that como into play. Hence we think $ movement to tbab poinb, , ,, , ,, , ,, , , ,. , ,, and that the defendant accomplishes the same ... , . „ ,, L result by substantially the same means, J J

Claim 4 calls for “pedally operated means for releasing the cover, and means for retaining the cover when closed.” The means of the patent for retaining the cover when closed is rearwardly tilted position plus the lacch. But the defendant cannot escape mfrmgement by omitting the latch and accomplishing ^ game result by tbe added wci ht o£ ite baffle lat or o£ ¿,baffle late lns a ri Theso ^ within ^ of wh¡¿h Mrl be aeeorded the patent) even th h it be but a combination improvement, The game ig trn0 o£ elaim 5

Claims 8, 12, 13, and 14 all speak of means for locking or automatically locking the cover. Holding the cover closed by the weight of the baffle plate, as in Exhibit A, cannot properly he deemed a locking. While the case js nof so cieax f0 Exhibit B, which adds to gravity the pressure of a spring, we are of opinion that that also escapes infringement, gjimiiariy eiaim 20, which calls for “a spring locking device,” is not infringed,

^ s0eond ^ d distinetioil between a* Mcntotfs machines and that of the patent n0ed not fco eonsidered ^ tbe claims ,yMch • ,7 , p,,. 7, • ji„. „ 7 require the cover to fit tight against the wash- , , , ,77 ? , , • « • 7 er body we have held not to he mtringed for ° er reasolls’

The third distinction relates to the means for holding the pan upon the cover. Claim 19 is typical:

“19. A bed pan washer having a door forming a shelf when opened and pairs of in-reaching cuived arms fixed at one of their ends on opposite sides of said shelf and extending immovably thereover for holding a bed pan in position on said shelf.”

. . , ,, The defendant has joined the upper ends of the arms by longitudinal bars. These do not make the slightest difference in operation, as the defendant’s expert conceded. The attempted distinction is the merest subterfuge. The novelty of the invention resided in arranging a holding means which would not overlie the opening of the bedpan, as did, for example, the strap in the German patent to Ehmann. This claim is infringed.

The fourth alleged distinction is involved in claim 18, which requires “a pedal movable in a straight line to initially actuate” the eover. It does not appear that this limitation was introduced to avoid any specific reference. The court below found that the pedal of the defendant’s device is operated in substantially a straight line, and that any slight deviation created no difference in function or in- method of operation. Infringement was properly ruled as to claim 18.

The decree must be modified. Claims 2, 8,' 12, 13, 14, and 20 are not infringed. As to these claims, the decree is reversed. Claims 1, 3, 4, 5, 18, and 19 are infringed by both types of the defendant’s machines. As to these claims the decree is affirmed. Costs in this court may be divided.  