opinion: TOUPET-TAYLOR ENGINEERING CO. v. RED DOG MFG. & SUPPLY CO.
  (Circuit Court of Appeals, Third Circuit.
  December 6, 1926.
  Rehearing Denied January 26, 1927.)
  No. 3397.
  1. Patents <§=141 — Enlargement of specifications and claims In reissue held unwarranted, where patentee, with full knowledge, failed to include such matters in original patent.
  Where patentee, with full knowledge that unslaeked lime or Portland cement could be used as binder in bricks, confined claims, specifications, and disclosures to unslaeked lime, his patent rights were limited to original disclosure, and subsequent enlargement of specifications and claims in reissue to include Portland cement, on ground of inadvertent mistake, was unwarranted.
  2. Patents <@=328 — Reissue No. 15,829, for making brick and hollow tile, held invalid.
  Engélbrecht’s reissue, No. 15,829, for making brick and hollow tile by use of Portland cement as binder, held invalid.
  ' Appeal from the District Court of the United States for the Western District of Pennsylvania; Frederic P. Schoonmaker, Judge.
  Patent infringement suit by the ToupetTaylor Engineering Company against the Red Dog Manufacturing & Supply Company. Bill dismissed, and plaintiff appeals.
  Affirmed.
  Charles M. Clarke, of Pittsburgh, Pa., for appellant.
  George E. Stebbins and Byrnes, Stebbins & Parmelee, all of Pittsburgh, Pa., for appellee.
  Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
  BUFFINGTON, Circuit Judge.
  This case concerns the making of brick and hollow tile from “red dog,” .a by-product of bituminous coal mining. In such operation great quantities of slate and other strata near the coal have to be mined in connection with the coal, by reason of the thinness of the coal vein. This worthless substance is dumped in huge piles near the pit mouth, where it often takes fire by spontaneous combustion and the burning produces a substance, equally worthless, which the miners call “red dog.” The proofs in the ease show that some of this red dog was sent to one Engelbr'eeht, whose patent is here involved, with a view to ascertaining whether it could be used in making fireproof bricks. He experimented and found that, when used in proper proportions with Portland cement, it could be made into bricks having very desirable qualities, and he made some sample bricks by the use of such ingredients. He also found it was possible to< use imslacked lime as a binder and he made bricks of those ingredients.
  After thus demonstrating the practical possibility of each of the binders, viz. Portland cement and unslaeked lime, he, on May 25, 1921, made application for, and on July 24, 1923, was granted, patent No. 1,462,596 for slate bricks. Why he did so is inexplicable but for some reason he made no disclosure in his specification that Portland cement could be used as a binder, but confined his disclosure to the use of unslaeked lime. His specification made no suggestion of the use of any other binder than unslaeked lime, and his claims were limited, respectively, to unslaeked lime, viz. “a proportionately small amount of unslaeked lime,” and “from 3 to 5 per cent, of unslaeked lime.” The disclosure of his specification was that after describing red dog, the proportions to be used and preliminary grinding thereof were as follows: “I then add a small proportion of unslaeked lime, in the neighborhood of from 3 to 5 per cent.; the greater the percentage of lime, the stronger the brick;” and “my invention consists in part in grinding this mixture properly, the object being to much more thoroughly mix the substances by grinding in conjunction with < the proper amount of water, so as to cement together with the lime as great a surface area of the grains of slate as is possible, thereby making the brick stronger and less liable to be disintegrated by intense heat. * * * The grinding, however, is carried on while the mixture is still moist and the lime is slacking, and it is continued until a coherent mass is formed, which will not crumble apart when pressed together.”
  It will thus be seen the case is not one where, for example, an inventor had found a single binder for his mixture, and had disclosed all he knew about binders, but had mistakenly confined his claim to that particular binder, or where he had suggested the possible use of some other bind of binder; but the case is one where, with full knowledge and the practical demonstration’ that each of two binders could be used to produce red dog bricks, he confined his claim, specification, and disclosure to one binder, and neither disclosed the other binder nor told of its possible use. So far as his patent is concerned, the public at the end of 17 years would still remain ignorant of the possibility of the use of Portland cement.
  In view of the full knowledge of Engelbrecht of the use of such cement, and his making neither disclosure nor claim of it, there was no basis for a reissue on the ground of “inadvertence, accident, or mistake,” so as to then disclose and elaim cement as a binder, and thereby make infringers of cement users, such as the defendant, who were not so when Engelbrecht’s patent was issued. Oh the contrary, the case is one where, with full knowledge of the use of Portland cement in connection with “red dog,” Engelbrecht saw fit not to disclose such demonstrated use, and asked for claims limited to his disclosure of lime as a binder. Under such facts, his patent rights were limited to what his original disclosure showed, and the subsequent enlargement of his specification and addition of claims, in his reissue No. 15,829, so as to cover Portland cement, must be adjudged unwarranted and invalid.
  So holding, the decree of the court below, dismissing the plaintiff’s bill, is affirmed.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.