The opinion of the court was delivered by: FORMAN
The patents in suit relate to advertising matter inscribed upon banners towed through the air by flying machines. The plaintiff's invention involves generally a rectangular banner, means to hold the banner in a stable and vertical plane so that the readability of the advertisement may be facilitated, and a cable leading from the nether surface of the flying machine which tows the banner through the sky. The front end of the sheet or banner is held vertically erect by the use of a stretcher bar. The bottom part of this bar contains a weight which prevents the banner from flying upside down. From the top and bottom of the stretcher bar ropes lead to a common point, forming an isosceles triangle. A single cable serves as a connection between this common point and the flying machine.
The two cases were consolidated for trial. Each of the defendants is charged with infringement of claims 2 and 3 of Bleriot patent No. 1,727,095 which provide for the following:
"2. A device of the class described comprising a flying machine, a sheet, a single cable connected to and extending from under the center of gravity of the flying machine for towing said sheet, and means for connecting said cable and said sheet and for holding the sheet in extended position.
"3. A device of the class described comprising a flying machine, a sheet, a single cable connected to and extending from under the center of gravity of the flying machine for towing said sheet, means for connecting said cable and said sheet and for holding the sheet in extended position, and a stabilizing element connected to said sheet and serving to control the movement of said sheet in flight."
and claim 9 of Bleriot patent No. 1,794,828 which contains the following provisions:
"9. In combination with a flying machine, a bar, a banner attached to said bar, a single cable connected at one end to said machine, flexible members connecting the other end of said cable to the bar, and means operative to swing said banner and bar into a vertical plane when said banner is towed behind the flying machine."
It would be impracticable and almost an impossibility to attach the cable to the "center of gravity". The language of a patent should not be construed to mean an impossibility. This is especially true where the vitality of the patent, and its infringement depend upon such construction. And the courts have so held.
"A patent should be construed in a liberal spirit, to sustain the just claims of the inventor. This principle is not to be carried so far as to exclude what is in it, or to interpolate anything which it does not contain. But liberality, rather than strictness, should prevail where the fate of the patent is involved, and the question to be decided is whether the inventor shall hold or lose the fruits of his genius and his labors." Providence Rubber Co. v. Goodyear, 76 U.S. 788, 795, 9 Wall. 788, 795, 19 L. Ed. 566.
Defendants' own expert witness admitted that the claim could be easily read in accordance with the construction urged by plaintiff by the addition of only two commas. So punctuated the claim would read as follows: "a single cable connected to, and extending from under the center of gravity of, the flying machine". Such a construction is a reasonable one in view of the fact that any other construction would mean virtually an impossibility.
But even as thus construed the defendants contend that their cable does not pass vertically below the center of gravity of the flying machine, and hence the defendants do not infringe.
In the case of Adam v. Folger, 7 Cir., 120 F. 260, the claim was expressly limited, inter alia, to the location of a certain supplemental regulating valve "in the plug of of the main valve". In the defendant's structure this was not so located. The court stated:
"But location was not of the essence of Folger's conception as above described. Nor was location, by reason of the state of the art as disclosed by this record, indispensable to the novelty of the claim. * * * His contribution to the art did not consist in improving the form or location or sequence of elements in an existing combination, but in taking and combining the elements to produce a new result. He is entitled to an application of the doctrine of equivalents in proportion to the scope of his invention. * * * To construe his statement of location as ...