Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; Philip L. Sullivan, Judge.
Before EVANS and SPARKS, Circuit Judges, and LINDLEY, District Judge.
This appeal involves the validity and infringement of patent No. 1,945,110, issued January 30, 1934. It covers an earprotector. The single claim reads as follows:
"An article of the character described comprising a band terminating in enlarged portions, the enlarged portions being slitted, with the adjacent portions of the slit lapped and secured together to form such enlarged portions in approximate cone shape, the lapped portions forming a pocket, and a securing strip for the article with its terminals secured in said pockets."
The defenses are invalidity of the patent and its non-infringement by appellants' ear muffs.
Non-infringement. Appellee argues for a liberal range of equivalents, while appellants insist upon a strict construction of the language of the single claim. In support of their position appellants call attention to the action taken in the Patent Office which in our opinion determines the question adversely to appellee.
The file wrapper shows that when the application was first presented, it contained eight claims. The Examiner rejected all claims. He said:
"It would not require invention to make the cupped ear portions of the ear protector of Basch by slitting and overlapping a part of the ear covering portion on itself in the manner shown in Rodgers."
Meeting this objection the applicant, through his attorney, said:
"* * * it is respectfully pointed out that for ear protectors it is essential that the enlarged portions fit snugly around the ears to prevent air from blowing into the ears, whereby a layer of warm air is maintained around the ears.
"Neither the patent to Rodgers nor the patent to Basch teaches this particular feature, nor does the patent to Frieland anticipate the invention, because the provisions of pockets for protecting the breasts is not a problem which is identical with the problem involving the present invention. The claims have been amended to bring out the fact that a snug fit is provided at the periphery of the ear muffs.
"The application is limited to this feature and under these circumstances reconsideration of the invention is respectfully requested."
The Examiner wrote that the claims were for a second and final time rejected, whereupon an amendment was introduced and the claim in question was inserted. Discussing this claim reference was made to an oral interview with the Examiner ...