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avoided by that patent or included in substance in any rejected claim made prior to April 25, 1892. The fact that in each and all of the claims mentioned, including claim 1 of the patent sued upon, the generator or vapor holder is claimed only in combination, is conclusive that it was old in the art. The same is, of course, true of every element of the claim. Rowell v. Lindsay, 113 U. S. 97, 5 Sup. Ct. 507, 28 L. Ed. 906; Miller v. Brass Co., 104 U. S. 352, 26 L. Ed. 783.

The vapor chamber or holder was quite as clearly described in claims 1, 2, 5, and 6 of the first amendment, and 2, 3, and 4 of the second and third amendments above mentioned, as in claim 1 of the patent, unless the words "constructed for the free and uniform distribution of vapor therein by gravity" define construction, which differs, for example, from claim 1 of the first amendment, which is "for * * * a generating chamber constructed to diffuse the gases throughout the chamber and for an opening for the escape of the gases." This cannot be claimed unless the words "by gravity" have that effect. This is hereafter considered. Claims 1, 2, 5, and 6 of the first amendment were characterized by the examiner as “vague and indefinite," as defining "the generator by its function, and not by its construction." This objection equally obtains to the vapor chamber of claim 1 of the main patent. It is not differentiated in structure or description from its rejected predecessors in the application by the words "by gravity." These serve only to state the means by which distribution of the vapor is effected, viz., the greater specific gravity of the vapor as compared with air. The operation of that law in the distribution of hydrocarbon vapors was not Jeavons' discovery, nor is it claimed that it was first secured by any thing in form or construction peculiar to his vapor chamber. It is present and operative in every generator. In the anticipated patent (specifications, p. 1, lines 73 to 78, inclusive) he says:

"It is, of course, understood by persons skilled in the art, that the vapors of petroleum are heavier than the atmosphere, and in a burner of this character the vapor travels around and fills the walled and covered chamber before it will voluntarily escape therefrom."


To utilize the vapor accumulated in the generator there must be, what Jeavons calls in claim 1, "a free opening for the escape of vapor, * * * of sufficient area to supply the vapor freely to the burner, or combustion cannot be effected." The necessity of such an opening is a truism in all generators. The last element in this combination, "the perforated combustion walls having a flame space between them in communication with said holder," are the familiar "concentric perforated combustion tubes" in use before 1864, as shown in Morrill's patent of that year. United Blue Flame Oil Stove Co. v. Glazier, 119 Fed. 160, 55 C. C. A. 553.

This analysis of the claim, if correct, establishes that each element of its combination was old and well known. The history of the art shows that most of them, if not all, had been associated in earlier constructions. Each performs the same function in the same way as the corresponding element in earlier devices possibly with a greater degree of efficiency-and aside from the verbal disguises employed to conceal

its age and its identity with its predecessors in the art, and its attempt to appropriate the law of gravity as a novel element, the combination presents nothing new, and claim 1 defines nothing by construction to distinguish it from the claims rejected by the examiner and renounced by the patentee's acquiescence, or from those anticipated by the patent of October 14, 1890. The argument based upon the utility and salability of the vapor burner is answered in Grant v. Walter, 148 U. S. 547-556, 13 Sup. Ct. 699, 37 L. Ed. 552, where the court held that a useful and popular article lacking in novelty was not patentable, adding: "The advantages claimed for it, and which it no doubt possesses to a considerable degree, cannot be held to change this result, it being well settled that utility cannot control the language of the statute, which limits.the benefit of the patent laws to things which are new as well as useful. The fact that the patented article has gone into general use is evidence of its utility, but not conclusive of that, and still less of its patentable novelty. McClain v. Ortmayer, 141 U. S. 419-425 [12 Sup. Ct. 76, 35 L. Ed. 800], and authorities there cited."

Complainant has planted its case upon the proposition that patent No. 475,401 is the "main patent"-"fundamental patent"-is for a generic invention, and was first applied for, while the earlier patents were for subordinate specific inventions. If this be correct, the conclusions reached as to the former should be decisive of the subsidiary devices. Each of the improvement patents, however, is made the basis of an attack upon the defendant's construction, and must be separately considered.

The bill charges defendants with the manufacture, use, and sale of vapor burners, each "embodying and conjointly using all the inventions described and claimed" in the patents sued upon, "and that defendants threaten to continue the manufacture and sale in this country of such vapor burners, in which are embodied and conjointly used in one unitary structure all the inventions severally described and claimed in said letters patent." The proofs fail to support this allegation. It would be impossible to incorporate in one operative construction the various types of "vapor distributing chambers" in the four patents sued upon, and, if so incorporated, the resultant mechanism would be an aggregation of inharmonious parts. Unfortunately complainant has failed to designate upon which of the 10 claims of the 3 earlier patents charges of infringement are predicated. The labor of their examination seriatim in the search for supposed resemblances between these and defendants' construction has thus been greatly increased.

First Improvement Patent, No. 438,548.

The claims of this patent rest in combination only. Defendants' burner has not the closed distributing chamber, nor the narrow opening along one edge thereof, which are elements of claim 1. Claim 2 is not infringed-defendants have not the closely fitting cover of this claim. Claim 3-defendants' construction does not show a cover narrower than the base. Claim 4-"Complainant's Experimental Exhibit" -defendants' burner reveals nothing which can be identified as "a detachable cover forming a vapor cover," resting its edges in different planes. Claim 5-the proofs in the case do not point to infringement of this claim.

Second Improvement Patent, No. 461,219.

The burner described in the specifications and claims of this patent is a pronounced departure in form and appearance of some of their elements from those shown in complainant's other patents. The prominent elements are:

"A bowl or cup

having a substantially vertical flange, a, about



it outside, of such depth as will afford a vapor distributing chamber. The bottom of the bowl is studded with a number of hollow tubular projections having a limited space between them, as seen in Fig. 1, and rising substantially to the level of flange a. These projections are open throughout so as to take in air from the bottom, and each one is provided with a perforated tube or chimney, C, fixed firmly therein, all the said tubes rising to a common level."

The verbiage of this description, as in those of the other patents in suit, does not prevent recognition of the "perforated combustion tubes" familiar to the art, seated in the metallic bands which are attached to the bottom of the vaporizing chamber, and are of such height as to exclude the air from the tubes below their perforations, and thus prevent combustion in the vaporizing chamber. The hollow tubular projections in which the combustion tubes are fixed serve, therefore, the same purpose by practically the same means used in the prior art, viz., the elevation of the lowest perforations of the combustion tubes or chimneys above the vapor chamber. There is nothing in defendants' burner corresponding to the combination of any claim of this patent. The drawing portrays a vapor burner so entirely dissimilar in structure from defendants' as to discourage search for a combination characteristic of the former which the latter has appropriated. If the "burner bowl" of the former is a patentable, new, and distinct element in the terminology of mechanics from the polynominal part of claim 1 of the "main" patent which figures in successive stages of the application as a "generator," "vapor chamber," "holder," "channel," "space," etc., defendants' burner does not possess it. If it is the same element under a new name, varied only in form but identical in function, it is the heritage of all inventors, and is shown in the "first improvement" patent of October 14, 1890, under one of its many aliases, and in the claims rejected on references, notably in amended claim 1. The claims are so narrowed by their terms and the earlier constructions that if any patentable merit can be

found in them it is restricted to its specific construction.

Third Improvement Patent, No. 467,466.

The single claim of this patent is for "a vapor burner bowl constructed with closed walls upon its sides, one of which is higher than the other in respect to the bottom of the bowl, and the two lower walls forming a vapor diffusing channel between them and perforated tubes forming the combustion chamber of the burner, substantially as described." This is also a merely structural patent for a combination of old elements, and therefore, because of the almost exact similitude of its leading element-the vapor bowl-to that of the last preceding patent, is not entitled to any liberality of construction, and is not infringed if patentable. Its patentability need not be discussed at length. In the

131 F.-48

specifications (page 1, lines 24 to 32, inclusive) the patent of October 14, 1890, is sought to be distinguished, and it is stated that:

"In the original patent referred to, the vapor diffusing or distributing chamber was wholly outside of the combustion tubes, and the vapor fed therefrom into the space between the tubes. In the present invention the outside chamber is dispensed with, and the burner bowl between the combustion tubes is utilized as a diffusing or distributing portion or space for the vapor."

This change of the relative positions of the tubes and the vapor chamber or "burner bowls" scarcely rises to the dignity of invention. It is a merely structural variation which places the combustion tubes in the burner bowl or vapor chamber instead of above it, and like changes are made in other elements to limit combustion of the vapor to the space below the perforations of the tubes. All the parts sustain the same mutual relations and perform the same functions in the same way and by the same means in their new locations as in former mechanisms. The "second improvement patent," with its numerous perforated tubes, "dispenses with the outside [vapor] chamber," and the burner bowl between these metallic seats (or perforations) is also "utilized as a diffusing or distributing chamber" equally with the construction shown in the "third improvement patent."

The claim of invention, in the light of the history of the art and of the "main patent," including its rejected and anticipated claims, is of such doubtful merit that, upon the question of mechanical equivalency of defendants' burner, "that doubt should be resolved against the patentee," when, as here, the claims contain the words "substantially as described or set forth." Hobbs v. Beach, 180 U. S. 399– 400, 21 Sup. Ct. 409, 45 L. Ed. 586. In Westinghouse v. Boyden Power Co., 170 U. S. 537-558, 18 Sup. Ct. 707, 42 L. Ed. 1136, it is said that the words "substantially as described' have been uniformly held by us to import into the claim the particulars of the specifications." The application of the rule is fatal to the charge of infringement. The claim vigorously limits the relative height of sides, one of which is higher than the other," by the language of the specifications (page 1, lines 45 and 46)-"say three times as high, or in that neighborhood" and the drawing emphasizes this limitation. In defendants' burner the height of the sides is as 1 to 14 instead of 1 to 3. Defendants' burner has no vapor bowl, but a vapor chamber of radically different construction. This patent is not infringed.

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The number of exhibits, the volume of the record, including the proceedings in the Patent Office, and the history of the art, and the numerous claims involved, have necessitated long and laborious examination of the matters in issue. Many points presented in argument and arising upon the patents sued upon, but unnoticed in the opinion, have received attention, but their determination is not called for in the view taken of the case.

The bill is dismissed, with costs.

S. A. COOK & CO. et al. v. HEYWOOD BROS. & WAKEFIELD CO. et al.

(Circuit Court, E. D. Pennsylvania. August 1, 1904.)

No. 43


A patent for an improvement in chairs having an adjustable back, and one for a similar device as an improvement in articles of furniture having a swinging member, are in the same art; only mechanical skill being required to adapt the device to the different articles.


Where an invention is for an improvement on a known machine by a mere change of form or combination of parts, the patentee cannot treat another as an infringer who has improved the original machine by the use of a different form or combination performing the same function. 3. SAME-IMPROVEMENT IN FURNITURE.

The Bowen patents, No. 667,162, for an improvement in chairs, and No. 678,219, for an improvement in furniture, both relating to a ratchet device for use on articles of furniture having a swinging member, are not infringed by the device of the Luppino reissued patent, No. 11,919.

In Equity. On final hearing.

J. S. Barker and H. H. Bliss, for complainants.
Southgate & Southgate, for respondents.

HOLLAND, District Judge. The complainants allege and set forth in their bill for a preliminary injunction that the defendants have infringed claims 1 and 4 of letters patent granted to G. A. Bowen, No. 667,162, January 29, 1901, for improvements in chairs, and claims 5 and 6 of letters patent granted to said Bowen, No. 678,219, July 9, 1901, for improvements in furniture, which patents are assigned to and owned by them. Defendants claim they are using a device shown in patent to Joseph Luppino, No. 11,919, reissued July 2, 1901. The defense set up and relied upon by the defendants is (1) that the claims in suit are invalid and void by reason of anticipation by the prior art; and (2) that defendants' patented device does not infringe any claims of the patents in suit. The bill of complaint alleges that the improvements in question are of great utility, and that complainants have manufactured and supplied to the trade articles of furniture, and particularly chairs, made according to the aforesaid letters patent, and have uniformly securely affixed to such articles of furniture plates bearing the word "Patented," together with the dates of issue of such patents, respectively. The answer denies the utility of the said improvements, and any manufacture thereof for the trade by the complainants. Mr. Melville E. Dayton, the only witness called by the complainants as a mechanical expert, himself an inventor of an adjustable chair, who is acquainted with the sale and kind of chairs in the market for the last five years, failed to find any Morris chairs employing the back-adjusting device of the Bowen patents in suit prior to his connection with this case, so that as the complainants, in their case thus presented, are

12. See Patents, vol. 38, Cent. Dig. § 38.

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