Plaintiff is the owner of United States letters patent No. 1,368,115 to Frank R, Chester, dated February 3, 1921, for “amusement apparatus.” Defendant Kentucky Derby Company, Inc., is the owner of United States letters patent to A. V. and O. T. Clorius No. 1,203,852 dated November 7, 1916, for “game of skill.” Defendant Neble is president of defendant company.

Plaintiff filed a bill of complaint against defendant alleging infringement of claims 1, 2, and 6 of the Chester patent.

Defendant Kentucky Derby Company, after the usual denials, alleged as a counterclaim the infringement by plaintiff of the claims of the Clorius patent, and defendant Neble answered denying liability.

*805The District Court filed its decree holding the Chester patent valid and (1) that defendants infringed claims 1, 2, and 6 thereof, and (2) that plaintiff did not infringe the Clorius patent, and (3) therefore that the counterclaim should be dismissed.

The decree did not specifically hold the Clorius patent valid, but, after examining the opinion and the wording of the decree, it is plain that the District Court assumed that the claims of the Clorius patent were valid.

This case does not involve any debatable question of law nor any mechanical nor scientific problem requiring extensive exposition.

Both devices were designed to appeal to a public which enjoys a certain type of amusement furnished by operation of these contrivances. Clorius was first in the field with . toy horse racing, held by the New Ydrk courts not to be unlawful. Chester followed with toy balloons. As this balloon game became popular, defendant company, as one of its devices, substituted balloons for horses. Hence this lawsuit.

We are concerned only with the features of the controversy which relate to the mechanism used and, as pointed out by the District Court, the amusement features make no difference. Clorius and Chester can. each race toy horses or explode toy balloons at will, if the respective patents, as defined in the claims, are different from the patent, standpoint. ,

We agree with the District Court in holding that plaintiff does not infringe the claims of the Clorius patent and, in order to remove any doubt as effecting future litigations, if any, we hold the Clorius patent valid.

We also agree that the Chester patent is valid.

Our sole disagreement with the District Court is that, owing to a different mental concept, we look at the Chester patent as narrower than held to be by the District Court, and, hence we think, that claims 1, 2, and 6 of the Chester patent were not infrifiged by defendants.

We think, among other reasons, that the file wrapper prevents the allowance to Chester of the range of equivalents necessary to find infringement in the case at bar.

The Chester patent”may be typified by claim 1, which reads:

“An amusement apparatus, comprising a hollow fragile object adapted to be demolished by the action of fluid pressure, a fluid pressure generating means having a hand-operated member and arranged to generate fluid pressure for demolishing the said object, and controlling means controlled by the said hand-operated member and controlling the generated fluid pressure.”

Thus claim 1 of Chester is limited to “controlling means' controlled * by the said hand-operated member and controlling the generated fluid pressure.” The word “generated” defines what the Chester patent is intended to do, namely, to control the pressure after it is generated, or, in other words, to maintain constantly a generated pressure, and to control such pressure at some point between the pump which generates it and the balloon.

Defendants’ machine does not maintain a constant generated pressure, because when the critical speed of the hand wheel is exceeded in *806defendants’ machine, the pump stops operating. Thus, defendants’ machine unclutches the pump or motor element. Plaintiff’s invention consisted in letting the pump run continuously with the hand wheel and placing a bleed valve or some other means between the pump and the balloon to effect changes in the speed of inflation of the balloon.

Claim 2 is limited to “controlling the flow of the fluid pressure from the said fluid pressure supply means to the said hollow fragile object.” Defendants’ machine does not control the flow of fluid pressure from the fluid pressure supply means to the hollow fragile object, because defendants’ machine stops the operation of the fluid pressure supply means, and during such stoppage, there is no flow from the fluid pressure supply means to the balloon.

Claim 6 is restricted to “‘controlling the flow of the compressed air from the air pump into the said object.” The Chester patent contemplates compressing air continuously while the hand wheel is turned, and permitting a greater or less amount of such compressed air to flow to the balloon. Defendants’ machine does not compress the air continuously, but, when the critical speed of the hand wheel is exceeded, the pump stops and there is no compression during the interval.

Decree modified, as indicated, with half costs in this court and in the District Court.