This is an action for patent infringement. Defendants’ motion for summary judgment is made on the ground that plaintiff’s patent is invalid because it was anticipated by the prior art. Plaintiff’s patent, filed on April 23, 1936, makes three claims that are relevant here:

The prior art is an article appearing in the French magazine “Auto-Carros-serie”, which was published in January-February 1932 and filed in the Patent Office Library March 11, 1932. This article describes an automobile with a gasoline tank located in the fender.

The issue on this motion is whether there is any genuine issue of fact requiring a trial. As stated by the Ninth Circuit in Cee-Bee Chemical Co. v. Delco Chemicals, Inc., 263 F.2d 150 :

As seen below, there are no genuine issues of fact as to the prior art or what plaintiff did to improve upon it. Therefore, the case involves only a question of law and can be decided by summary judgment.

The nature of the invention is measured by the words of the claim and not the intention of the applicant. As stated in Walker on Patents, § 450, p. 1681:

When the patentee makes a broad claim, he must show that no specific application of the broad claim has been-anticipated by the prior art. In the words of Judge Learned Hand in Fox-boro Co. v. Taylor Instrument Co., 2 Cir., 157 F.2d 226 :

Walker, by his affidavit, attempted to show that his invention is more limited than would appear from the claim. But Walker finds himself in the trap suggested by Judge Hand. He has claimed broadly, but the prior art unknown to him fits within the broad claim. Walker’s affidavit must be disregarded because most of it deals with infringement and not validity, and because the invention is described by the claim rather than Walker’s declarations of what he intended as his invention.

Walker also filed an affidavit of Adele Herrmann, a translator, which challenges the official Patent Office translation of the French article. She states that the reference to a gasoline supply should read “a reserve gasoline supply”. But even if the Herrmann translation is' correct, the generality of Walker’s claim includes the possibility of a reserve tank. The Herrmann affidavit fails to raise a genuine issue of fact because the difference in the translations could not affect the result.

The French publication satisfies the definition of Claims 1 and 2 of “a tank wholly contained therein behind said skirt and of a width substantially equal to the width of the fender”, and the definition of Claim 3 calling for:

The French article, according to the Herrmann translation, states:

Moreover, the drawings in the French article demonstrate that the tanks are wholly contained behind the skirt and of a width substantially equal to the width of the fender.

The reference in Claim 2 to “a partition in said one fender interposed between the tank and the associated wheel” is also found in the French article. The article states:

Since no genuine issue of fact is presented by the record, and since the Court is convinced that Walker’s invention, as described by his claim, was also de-cribed in the prior French article, the motion for summary judgment is granted. Counsel for defendants shall submit findings of fact and conclusions of law and an appropriate judgment.