APPEAL FROM THE COURT OF CLAIMS.
MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.
It is contended, on behalf of the appellant, that we should
regard the present case and the case disposed of upon the former appeal, in 171 U.S. 203, as constituting substantially one controversy, and that we should give the appellant the benefit of the new or additional facts which, it is claimed, were made to appear by the amended findings in the first case. It is claimed, on the part of the United States, that the former decision of this court was a final adjudication of the controversy, that its finality was not affected by the subsequent allowance by the trial court of an appeal from the former judgment, and that, at all events, the additional findings were, in substance, not different from those previously made, and, even if now considered, show no sufficient grounds for reversing the judgment of the Court of Claims in the present case, or that of this court on the first appeal.
Whether if the additional findings of the trial court had presented a new and meritorious case, this would afford a sufficient reason for this court to set aside its previous judgment, and to enter upon a consideration of the controversy de novo, we do not decide, as, even upon such an assumption, we agree with the court below in thinking that the new findings did not make a new or different case, or impair the legal foundation of the judgment rendered in the case in which they were made.
Those findings, as we find them printed in the record of the case, No. 198 of the October term, 1897, of this court, consist partly of matters connected with the claim on account of the manufacture and use of the cup-anvil cartridge, and as the claimant filed a waiver of that claim such parts of the findings have no relevancy now. Other portions of the additional findings bear on the number of cartridges made by the United States, so as to afford a basis for estimating the damages, if the claimant should recover, and do not affect the legal questions involved. Other of the findings allowed reference to certain drawings filed by the claimant in previous applications made by him in the Patent Office, which may have some relevancy as disclosing the history of the art, but do not appear to materially affect the construction of the claim finally allowed by the Patent Office, and the same by said of some verbal amendments allowed to the findings previously made.
An examination of the history of the appellant's claim, as disclosed in the file wrapper and contents, shows that in order to get his patent he was compelled to accept one with a narrower claim than that contained in his original application; and it is well settled that the claim as allowed must be read and interpreted with reference to the rejected claim and to the prior state of the art, and cannot be so construed as to cover either what was rejected by the Patent Office or disclosed by prior devices. Leggett v. Avery, 101 U.S. 256; Shepard v. Carrigan, 116 U.S. 593; Knapp v. Morss, 150 U.S. 221, 227.
It is quite true that, where the differences between the claim as made and as allowed consist of mere changes of expression, having substantially the same meaning, such changes, made to meet the views of the examiners, ought not to be permitted to defeat a meritorious claimant. While not allowed to revive a rejected claim, by a broad construction of the claim allowed, yet the patentee is entitled to a fair construction of the terms of his claim as actually granted. The specification, as amended, contained the following description:
"The distinguishing feature of may invention is the organized construction to carry into complete effect the expressed principles of operation of the fulminate of mercury or detonating powder and the powder charge. In this organization the fulminate, although the superior explosive force, is contracted into a diminished or small central chamber, and fills it. The fiange and head of the metallic case are solid, all in one piece.This chamber at its sides or outer extreme edges communicates directly and exclusively with the powder charge, so that the explosive force of the fulminate is not allowed to expand under a larger area of the anvil plate and blow it out, but is compelled to diffuse its explosive force, not in a central stream, but in a diffused body into the base of the powder charge. To effect this, the central anvil piece has no central aperture, is as wide as the fulminate-filled chamber, and the perforations are at the extreme outer sides of this fulminate, for two purposes: one is to diffuse the fire from this center most thoroughly; the other is to have an unperforated anvil over and against the fulminate, as it rests solid in its chamber, to receive the central below of a
striker and obtain complete resistance by the anvil bar, and yet have free escapement for the explosive force at once from beneath the anvil plate without any chamber or space for it to expand into under the plate. This assures a certain ignition, security of the anvil plate to keep its position, and a complete combustion of the powder charge, from the base forward, as it impels the bullet out of the gun."
The claims made in the application were as follows:
1st. The circular plate E, constructed with central solid resisting piece i, and two or more side perforations k k, substantially as described, applied within a metal case, with cylinder and rear end solid and tight, thereby requiring the insertion of the plate and charge and priming from the ...