Appeal from the District Court of the United States for the Northern District of Indiana, South Bend Division; Thomas W. Slick, Judge.
Before EVANS, SPARKS, and FITZHENRY, Circuit Judges.
For want of a properly prepared and properly certified statement of the evidence, the decree must be affirmed. Not only has appellant violated Rule 9 of this court (Barber Asphalt Paving Company v. Standard Asphalt & Rubber Company, 275 U.S. 372, 48 S. Ct. 183, 72 L. Ed. 318), but it has failed to secure any approval or certification of the evidence as being all of the evidence received on the trial or necessary to present the case to this court on the merits.
We have, however, acted on the assumption that all of the evidence is in the record and have overlooked appellant's failure to comply with Rule 9 of this court and have studied the briefs and records with the result that we are entirely satisfied with the decree which was entered.
The appeal is from a decree dismissing a bill which sought relief because of the appellee's alleged unlawful infringement of appellant's patent No. 1,461,967. It appears that two patents were issued out of the patent office on the same day to the same party, appellant's assignor. One covered a machine and the other was a process patent. The suit was originally brought on both patents, but at the trial appellant dismissed or withdrew that part of the complaint which charged an infringement of the machine patent.
Claim 2, quite typical of all claims, reads as follows:
"The herein described process of making paper folding boxes, consisting in preparing blanks of uniform size, in feeding the blanks progressively to a box making apparatus, in causing the blanks to be moved without pause through said apparatus, in effecting simultaneously folding of the opposite corners of the front end of each blank, and thereafter to effect simultaneously folding of the opposite corners of the rear end of each blank, and in a still later operation to effect folding of the opposite side edges of each blank, as the same are advanced through said apparatus, in causing adhesive junctures to be made between folded portions of each blank, and in causing the blanks to be delivered singly from said apparatus in knocked-down form."
In disposing of this and other similar claims, the court said (2 F. Supp. 531):
"* * * The machine Patent, No. 1,461,966, has been dismissed out of the case, leaving only the process patent in issue.
"Defendant claims this patent is invalid and void for the reason that it does not set up a patentable process, but only statements of a function of the automatic machine covered by Patent No. 1,461,966. * * *
"The patent in issue is process Patent No. 1,461,967, issued to Charles Butterfield July 17, 1923, and belongs to plaintiff. The finished box that Butterfield describes is old and known to the trade as a paper box scored diagonally, which has been made for a long time either by hand or by the use of machines which folded the cardboard on the diagonal scores and produced the exact same box. Butterfield does not claim an improved box, but he does claim that the boxes are produced more rapidly than before because certain folds are made while the blank is progressing on the machine. This is an improvement in the automatic machine, not in the process. Butterfield, in the language of the Supreme Court, 'Cannot describe a machine which will perform a certain function, and then claim the function itself, and all other machines that may be invented to perform the same function.' And that is just what Butterfield has attempted to do. * * *
"In Corning v. Burden, 15 How. 252, 14 L. Ed. 683, the Supreme Court held that 'all that he, the patentee, invented in fact was a machine for the more perfect manufacture of such pulleys. The operation or function of ...