Winslow Engineering Company, Appellant-Petitioner v. Leroy Smith, an Individual, Doing Business as Rol Pak Co., Appellee-Respondent

After our former decision in this case, 223 F.2d 438 , we granted a rehearing limited to the question whether the appellant’s claims are invalid under the rule of Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 277 , 69 S. Ct. 535, 538 , 93 L.Ed. 672 . Reference to our former opinion will disclose the reasons why we previously answered that question in the affirmative.

During the rehearing, the appellant, in analyzing the portion of the opinion in the Graver case which set forth the principles applicable to the requirement that statements of claims must “ ‘particularly point out and distinctly claim’ ” an identifiable invention or discovery, placed much emphasis upon the language of the court at page 277 of 336 U.S., at page 539 of 69 S.Ct. in which it was said: “We think the District Court correctly applied this principle to claims 24 and 26.” Appellant then laid alongside of this portion of the Supreme Court’s opinion the following language used by the district court in the decision of that case, 86 F.Supp. 191 , at page 199: “ ‘In the first of the cited cases the general rule is clearly stated to the effect that a claim which is capable both of broad and narrow…