 Also, in general, it has been customary to bow the frame members inwardly to simulate upholstering and to maintain the bow of the sheet material of the frame members by means of stays attached to the insert on the side opposite to the exposed side.
* * * * * *
"The improved prefabricated insert or interior unit of this invention is an improvement over the interior unit of Patent No. 2,664,615 in that it can be much more rapidly fabricated with less material and with the requirement for less skill than the interior unit of the patent. Particularly, the unit of this invention does not require the stays for bowing the frame members of the patent and further * * *.
* * * * * *
"The construction of the interior unit of this invention is superior to the construction of the interior unit of Patent No. 2,664,615 regardless of the manner by which the interior unit is attached to the inside of the casket top because the construction dispenses with the use of stays for stabilizing the frame members. In other words, in the preferred construction of Patent No. 2,664,615, the frame members are relatively rigid and self-sustaining, whereas the frame members of this invention are relatively flexible and are held in the desired configuration only after the interior unit is placed in the casket top whereby the flanged joints stabilize the positions of the inner margins of the frame members and the attachment to the casket top stabilizes the positions of the outer margins of the frame members." (Emphasis supplied.)
From this it can be surmised that the need for stays or webs in the `615' patent was a nuisance and the patentee recognized that these stays were a vital part of his original patent. This frame of mind seems justifiable from the quotations we have recited above and we believe that the entire file wrapper history of the `615' patent, and the `824' patent as above noted calls for a compression of the scope of the claims to a much narrower range than that allowed by the District Court.
The file wrapper history shows that a self-sustaining frame with stays or webs giving strength as well as form to the frame members, and with mitred corners made possible by stapled tabs or flanges at the abutting ends — also adding to the strength of the whole — constitute the essence of the `615' invention. This was not a pioneer invention in the field of casket inserts, but rather was an improvement on the prior art, and the correspondence with the Examiner sustains this view. Looking through the correspondence to the patents cited by the Examiner convinces us that the Examiner's position would have been sustained had the applicant chosen to contest his decisions. Particularly is this so with regard to Bowler Patent Number 2,181,504, and Bowler Patent Number 2,044,967.
The District Court applied the doctrine of equivalents in its findings of fact 17 and 18. In so doing it found the chipboard glued to the corrugated board to be an equivalent of the stays or webs mentioned in the `615' patent. In view of our discussion we must disagree. To grant the equivalence in this instance would be to give to the `615' patent a scope broad enough to encompass that which the Patent Office refused to allow. The stays, being rigid and perpendicular to the plane of corrugated board, added strength to the frame and a rigidity that was called for in the claims. The accused device uses a chipboard that permits flexibility — an attribute that is one of the very desirable features of its design. In this context we cannot hold it to be an equivalent when an exact duplication of the patented item, with its basic characteristic of rigidity, would destroy that particular feature which is most novel in the component utilized by the accused device. The same may be said about the tabs or flanges used at the corners. These are mentioned again and again in the claims as the means by which a mitred corner may be achieved, and they add considerably to the self-sustaining rigidity of the patented insert. Again, to classify as an equivalent a feature that is designed to permit flexibility in the accused insert and which lacks any of the attributes called for by the patented insert, save for final appearance which we have already said was not patented, would grant to the patentee a monopoly over casket lid inserts not anticipated by the Patent Office and would seriously call into question the validity of the patent in light of the file wrapper history already discussed.
We realize that each case must stand on its own facts. Particularly is this true where file wrapper estoppel is raised as a defense to an infringement action. The line between what is patentable and what has been properly disallowed must be recognized when applying the doctrine of equivalents. In this regard it is well to recall what was said by Judge Major in Lewis v. Avco Mfg. Corp., 228 F.2d 919, 925 (7th Cir., 1956):
"If the difference between tweedledum and tweedledee represented the margin between the prior art and the patent as allowed, the patentee would not be heard to assert that such difference was of no consequence on the issue of infringement."
For the foregoing reasons the trial judge erred in holding that plaintiff infringed defendant's patent. Accordingly, the judgment of the District Court is reversed.
Throughout this opinion reference will be made to two Hillenbrand patents. Mr. Hillenbrand, Secretary of the Batesville Casket Company and also its Production Manager, was copatentee and assignor to Batesville of Letters Patent 2,664,615 (the patent in suit), issued on January 5, 1954. In addition, he was the patentee and assignor to Batesville of Letters Patent 2,964,824, issued on December 20, 1960. Both patents deal with casket interior units and herein are referred to as the `615' patent and the `824' patent respectively
Finding of fact 17 reads:
"In claims 6 and 7 of defendant's patent, the frame members are described as constituted by paperboard material configurated to display a curved face, and a plurality of webs secured to the inner face of each of the frame members to maintain the curvature. The patent drawings show three to five such webs secured to the inner face of the members. Plaintiff does not employ the particular webs shown in the patent drawings. Rather, the plaintiff secures an elongated strip of corrugated paperboard to the inner face of the members to maintain the curvature. The plaintiff's longitudinal strip of corrugated paperboard may be considered to be a plurality of individual transverse strips (or webs) of corrugated paperboard integrally joined into a single elongated strip. The longitudinal strip employed by the plaintiff is found to be substantially the same means as the claimed plurality of webs in that it accomplishes the same result in substantially the same way as the plurality of webs."
Finding of fact 18 reads:
"* * * The structure employed by plaintiff is the mechanical equivalent of the flanges secured together as claimed by the defendant in claims 9 to 13 in that the plaintiff's structure is adapted to perform the same result (a neat mitred corner) by substantially the same means functioning in substantially the same way (the abutting and overlapping frame members stapled at their corners and around the tacking frame in the peripheral edges of the casket top or inserted in the channel)."
Finding of fact 19 reads:
"The prosecution history of the two Hillenbrand Patents in no way limits the scope of the patent claims in issue and particularly the scope of such claims set forth in these Findings as covering and embracing the casket interior units or components thereof which plaintiff has made, used and sold presently and in the past and such units assembled from such components supplied by plaintiff and sold by plaintiff's customers presently and in the past."
Finding of fact 20 reads:
"Plaintiff's structure in its component parts and the assembled unit does not follow the prior art, but follows defendant's patent."
Claim 17 read:
"An interior unit for a casket top comprising a self-sustaining rectangular frame having side and end members constituted by paper board material configurated to display a curved face outwardly and a self-sustaining panel of shallow dish-like configuration secured marginally to the inner edge of the frame to constitute a rigid assembly adapted to be inserted as a unit in the top of the casket."Russians are still in shock and mourning over the vast human tragedy in Beslan, North Ossetia. However, a number of observers, including both supporters and critics of the Kremlin, are saying that the terrorist attack there could present a challenge to the legitimacy of President Vladimir Putin, who came to power in 2000 on the strength of his promise to make short work of Chechen separatists and otherwise establish an effective “vertical of power” in the country.
Not surprisingly, some of the harshest critiques of the Kremlin in the wake of the terrorist seizure of Beslan’s School No. 1 and the murder of hundreds of people, including many schoolchildren, have come from representatives of Russia’s liberal intelligentsia. Vladimir Ryzhkov, an independent State Duma deputy, noted that the seizure of hostages in Beslan was preceded by a series of other attacks, including the June insurgent raid on law-enforcement headquarters and other government installations in Ingushetia, which killed more than 90 people; the August 21 rebel attacks on the center of the Chechen capital of Grozny, which killed some 30 people; the August 24 downing of two airliners, which killed 90 people; and the August 31 suicide bombing near Moscow’s Rizhskaya metro station, which killed ten people.
In Ryzhkov’s view, Putin is constitutionally obligated to consider all possible courses of action to protect Russia’s citizens, including talks with the more moderate elements of