c33:No. 69

COXE, Circuit Judge
(dissenting). This action was brought upon claims 4, 9, 10, 11, 12 and 13 of the Thompson patent, No. 1,070,080. It was tried by Judge Hazel who heard the testimony of most of the important witnesses in open court and, after giving the testimony careful consideration, he concluded that the claims above enumerated were valid and infringed. Subsequently a motion for a rehearing was made and the cause was reargued before Judge Hazel who again considered the issues with care and reached the same conclusions, filing an amended opinion restating his views.
The impression which I obtained at the argument, and which has been strengthened by an examination of the evidence and of Judge-Hazel’s opinions, is that Thompson made an unquestionably meritorious advance over the prior art. His was not a broad generic invention but constituted a highly useful advance in an important branch of industry. Judge Hazel took unusual care in the examination of the testimony and exhibits and, being convinced of the great utility of the invention, has overruled the defenses, most of them being technical in character. It seems to me that this meritorious patent can be defeated only by taking a circumscribed view of the invention and an erroneous view of the prior art. Thompson unquestionably made an advance in the art of electric car lighting. His patent can be defeated only by limiting it to the precise construction shown. Why should it be so limited ? It should be so construed as to give him the fruits of the improvement he has made.
The decision of the District Court, after an usually careful consideration of the prior art, has given him this and nothing more. I think it unnecessary to go further into details. To do so would simply involve a restatement of the propositions discussed and decided in the opinions below.
For these reasons I feel constrained to dissent.

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