The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921. Page: 24
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272 FEDERAL REPORTER
Cross-Appeals from the District Court of the United States for the
Western Division of the Southern District of Ohio; John W. Peck,
Suit by the National Fireworks Distributing Company against the
Edwards Manufacturing Company. From a decree for plaintiff for
insufficient relief, both parties appeal. Affirmed.
Nathan Heard, of Boston, Mass. (Allen & Allen, of Cincinnati, Ohio,
on the brief), for plaintiff.
Wm. R..Wood, of Cincinnati, Ohio (Wm. R. Wood, of Cincinnati,
Ohio, on the brief), for defendant.
Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.
DONAHUE, Circuit Judge. The bill of complaint filed in the Dis-
trict Court of the United States for the Southern 'District of Ohio,
Western Division, charges infringement by the Edwards Manufactur-
ing Company of claim 6 of the Wertz Patent, No. 926,308, June 29,
1909, and of the single claim of the Clark patent, No. 991,956, May 9,
1911. Both patents relate to toy pistol construction. The District
Court entered a decree finding claim 6 of the Wertz patent valid and
infringed; that the claim of the Clark patent was not infringed by
the defendant's construction, and for that reason did not pass upon
the validity of that patent. The defendant appealed from that portion
of the decree finding claim 6 of the Wertz patent valid and infringed,
and the plaintiff filed a cross-appeal from that portion of the decree
finding that defendant's construction did not infringe the Clark patent.
Claim 6 of the Wertz patent reads as follows:
"6. A toy pistol, comprising a magazine adapted to receive an explosive
tape therein, a spring for guiding the tape, a trigger, a hammer on the trigger,
and a spring on the hammer adapted to engage the tape, for feeding it in the
path of the hammer, as the hammer is actuated preparatory to striking the
It is not seriously contended by the defendant that this claim of the
Wertz patent is invalid. On the contrary, it is claimed that, in view
of the prior art and the Patent Office proceedings preliminary to its
issue, it is not entitled to the liberal construction of a generic inven-
tion, dominating the broad combination of a guide spring with any
means for feeding the ammunition tape, so as to include within the
range of equivalents defendant's wholly different construction.
 The case of Crescent Specialty Co. v. National Fireworks Dis-
tributing Co., 219 Fed. 130, 135 C. C. A. 28, involved the validity of
claim 6 of the Wertz patent, and the validity of the single claim of
the Clark patent. That case, however, wdis an appeal from an order
of the District Court granting a preliminary injunction against the in-
fringement of these patents, and necessarily this court confined its in-
vestigafions to a determination of the question whether the 'District
Court in granting the preliminary injunction had "exercised its dis-
cretion upon a wholly erroneous conception of pertinent facts or law,"
and therefore did not finally determine the validity of either patent;
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The Federal Reporter with Key-Number Annotations, Volume 272: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States and the Court of Appeals in the District of Columbia, June-August, 1921., legislative document, 1921; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38843/m1/46/: accessed May 22, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.