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simply as a draft equalizing chamber auxiliary and leading on to the actual chimney or stack at a greater or less distance beyond, the material thing is that the roasting is complete when it is reached; while in the Kleeman the reducing process is continued on through the extension chamber, with its flues and retorts, into still other and ulterior parts. Differing in both function and structure as they do, the two chambers are in no sense equivalent; and there is nothing therefore in this reference on which to predicate an anticipation of what we have here. This disposes of everything that is cited against the claims under discussion and their novelty and validity being thus established and infringement conceded the bill to that extent at least must be sustained.

"But there are other important elements which it is claimed that the defendants have appropriated. Underneath the combustion chamber, for the purpose of supplying fuel, is a gas chamber with exits from it and air ports adjoining, to insure combustion; and opening into the combustion chamber at various points above are other inlets for a similar purpose. The object of this arrangement is to secure a suitable supply and admixture of gas and air and to secure it at the proper place. Bearing as this does on the efficiency of the furnace the devices employed must be regarded as patentable elements in the combination in which they are found. They are embodied in the third and fourth claims of the first Greer patent and the fourth and fifth claims of the second as follows:

"Patent 495,883.

(3) In an ore roasting or calcining furnace, the combination with the stack and an ore roasting chamber, of a combustion chamber having communication with said roasting chamber, said combustion chamber having in its base a gas chamber D formed in its top with exit openings d, and also having air ports e e' opening into it adjacent to the gas exits d.

"(4) In an ore roasting or calcining furnace the combination with the stack and an ore roasting chamber, of a combustion chamber having communication with said roasting chamber, said combustion chamber having in its base a gas chamber D formed in its top with exit openings d and also having air ports e and e' opening into it adjacent to the gas exits d, and holes c' opening into it at various points, and means for closing said holes, c'.'

"Patent 508,542.

“(4) In an ore roasting or calcining furnace, the combination with the rectangular stack and rectangular ore roasting chamber, of a rectangular combustion chamber having communication with said roasting chamber, said combustion chamber having in its base a gas chamber D with gas exists in the top of same and also having air ports adjacent to said gas exits, substantially as set forth.'

"(5) In an ore roasting or calcining furnace, the combination of the rectangular stack, the rectangular ore roasting chamber communicating therewith, and the rectangular combustion chamber communicating with said ore roasting chamber, said ore roasting chamber being located between said combustion chamber and stack, and said combustion chamber having in its base a gas chamber D with gas exits in the top of same and also air inlet opening into it adjacent to said gas exits and air inlets opening into it at various points, substantially as set forth.'

"The same references as before are brought forward to invalidate these claims, but with no better success. It is true that in the Kleeman furnace, air inlets are shown on either side of the gas flue leading up into the combustion chamber from the gas chamber below; and there are openings in the outer wall of the combustion chamber similarly located to those of the Greer. So far as these particular features of the combination are concerned this might affect the novelty of the fourth and fifth claims of the second patent which are in general terms; but in the third and fourth claims of the first, which are narrower, one of the air inlets into the combustion chamber being specifically located between the gas exit and the ore chamber insuring the presence of a suitable supply of oxygen at this point. But it is not material to insist on any such saving distinction. It is to be remembered that in each of these claims we are dealing with a combination from which it does not in the least detract,

that certain of its features are not new; we are not concerned therefore. whether the air inlets in juxtaposition to the gas flue in the Kleeman furnace are duplicated in the claims of the second Greer or not. Novelty is to be predicated upon the combination found in each as a whole, and this includes the three co-ordinate, combustion, ore, and stack chambers, as to which in correlation, the prior art, as we have seen, has nothing to suggest.

"As to the infringement of these claims it seems to me there can be no serious question. So far, in either, as there is a reference by letter to the accompanying diagrams they are, of course, confined to the specific combination thus shown; but even on that basis the defendants' structure offends. A gas chamber at the base of the combustion chamber is employed, opening up from which into the combustion chamber is a set of exits and adjacent to them, that is to say between them and the ore chamber, is a corresponding set of air inlets. Leading in also through the outer wall of the combustion chamber, on the opposite of the gas exits are passages which have the same relative position as the second air inlet specified in the claims of the first Greer; while similar inlets or passages open into it at various points in tiers up to the top of the furnace. It is said that these inlets are merely dust holes for cleaning out the furnace, and that the gas from the combustion chamber forces its way out through them to such an extent as to require that they shall be kept permanently closed. But in one of the Wehrum patents--according to which the defendants' structure is supposed to be built-they are described as affording communication with the outer air, and in the other are said to furnish means for inspecting the ores in process of roasting, and while their use for cleaning purposes is also declared, this additional function does not do away with the others mentioned, which are the same as specified in the patents in suit. It is true that these openings in the defendants' roaster are closed with doors; but this is specified in the fourth claim of the first Greer as to the so-called 'peep holes'; and is shown as to the second air inlet in the other. But the variance, if any, is not material. The openings are none the less ports or inlets within the terms of the patents because means are provided for opening and closing them. Nor in judging of their equivalency is the particular use which may be made of them to govern. Structure, as has been observed, is what we are especially to look to and while the function to which a particular part is devoted is not to be altogether lost sight of, where the form is practically the same as in the case before us, the possible rather than the accidental use must decide.

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"As the result of the views so expressed the bill must be sustained as to the third and fourth claims of the first Greer and the third, fourth, fifth and eighth claims of the second."

Granting that the learned judge was mistaken, when discussing the structure of the Knox and Osborn patents, in saying that it was "conceded" that "it does not anticipate the particular claims under discussion, which require the combustion and the stack chamber to be of equal height with the ore chamber," it is clear to us, that though not conceded by the appellant, the learned judge was right in his opinion, that claims 3 and 8 of the second Greer patent, require all the chambers to be substantially coextensive. They expressly require that the ore chamber shall communicate "on one side at different points in its height with said stack, and on its opposite side at different points in its height with the combustion chamber." Substantial similarity between the extent of communication on the one side and on the other, is essential to this requirement. The drawings of the patents show the three chambers to be coextensive, and the expert testimony draws the inference of coextensiveness from the claims and specifications, the claims 3 and 8 closing with the words, "substantially as set forth," and "substantially as described," respectively. This language brings into the claim the par

ticular description of the structure contained in the specifications, and the drawings to which they refer, and that description, as we read it, is of a structure containing a combustion chamber and an ore chamber of equal height, and a stack or draught producing chamber, coextensive therewith.

The decree of the court below is affirmed.


(Circuit Court of Appeals, Seventh Circuit. April 12, 1904.)

No. 976.


The Fisk patent, No. 521,461, for a telephone switch board, in which the fallen annunciator or drop is restored to its latched position automatically by the insertion of the connecting plug into the jack, was not anticipated in the prior art, and discloses invention. Also held infringed by the device of the Overshiner patents, Nos. 617,691 and 617,692.

Appeal from the Circuit Court of the United States for the Northern Division of the Northern District of Illinois.

Appellant, owner of letters patent No. 521,461, June 14, 1894, to Fisk, for a combined annunciator and spring jack for use in telephone switch boards, failed in its suit to hold appellees as infringers. In the earlier form of switch boards a bank of annunciators or drops, serially numbered, was placed above a bank of spring jacks, similarly numbered, so that any drop was distant, say, two feet from the correspondingly numbered jack. When a subscriber called, the operator's attention was attracted by the falling of the drop. The operator thereupon established communication with the calling subscriber by inserting a connecting plug in the jack that bore the same number as the fallen drop. At the same time the operator manually restored the drop.

Figure 1 of the Fisk patent and the description and claims are as follows:

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"My invention relates to switch boards for telephone exchanges and will be fully described hereinafter.

"In the drawings Figure 1 is a side elevation of a portion of a switch board embodying my invention. Fig. 2 is a top view of the same. Fig. 3 is a broken perspective, and Fig. 4 a detail. Figs. 5, 6, and 7, respectively, are side, top, and perspective views of a modification, and Figs. 8 and 9, respectively, side and top views of still another modification.

"A is the bottom of a compartment containing the spring jack B, which latter is hollow and notched as at a, to receive the bent end of a superimposed spring, C, the rivets, C', securing the spring, C, to the jack passing down to

* Rehearing denied May 27, 1904.

the compartment and securing a strip, D, to it, while at the same time making a metallic connection between the spring and the strip. The spring is also formed with an arm or offset, c, that normally rests upon a pin, b, which passing through the bottom, A, connects strip D' to it. A spool, E, is secured to the bottom at the rear of the jack, and from the head of the spool are projected lugs, d, d, to which one edge of an armature, F, is pivoted, and from the upper portion of the opposite edge of this armature an arm, G, projects forward and at an acute angle to the width of the armature, and the outer end of this arm is formed with a lip, g, for engagement at the proper time with the bent flange, h, of a drop, H, to hold the drop up when the core of the spool is de-energized.

"The operation is as follows: When a call is made, the current from line goes through strip D, spring C, pin b, strip D', into the spool, and thence to the battery, thus energizing the core and causing the armature to be attracted and to pull the support from under the drop. The plug, K, is then inserted by the operator, and connection between spring C and strip D' broken, and the party called connected with the party calling through spring C, strip D, and plug. As the drop is released by the spool operating on the armature, it is lifted by the plug as it is inserted in the jack, for the drop hangs directly in front of the mouth of the jack, and is caught in its raised position and held up until another call is made, and the operator accomplishes in one motion what has hitherto required two motions.

"Having thus described my invention, what I claim as new, and desire to secure by letters patent, is:

"(1) The combination in a switch board of a jack, and a drop adapted to swing in front of it, an electro-magnet located in the rear of a jack, and an armature having a connection for catching and supporting the drop when it is raised by the entrance of the connecting plug as set forth.

"(2) The combination in a switch board of an annunciator drop adapted to hang in front of the jack and be lifted by the operator's plug as it is thrust into the jack, and a trigger or arm for catching it when so raised, and an electro-magnet and its armature and connections whereby the support is drawn from engagement with the drop when the magnet is energized as set forth.

"(3) The combination in a switch board of an electro-magnet, a jack located in front of it, and a drop hung in front of the jack, with a support for the drop when raised, and a connection between the support and armature for drawing the support from engagement with the drop when the magnet is energized as set forth."

Appellees' device is manufactured according to letters patent Nos. 617,691 and 617,692, January 10, 1899, to Overshiner, and is illustrated by the following drawing: 1

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The record contains the following reference patents: 240,182, April 12, 1881, to Rein; 279,946, June 26, 1883, to Hazlet; 339,627, April 13, 1886, to Doolittle; 392,326, November 6, 1888, to Gould; and British 3,930, October 5, 1878, to McClure.

Josiah McRoberts and Charles C. Linthicum, for appellant.
Charles C. Bulkley, for appellees.

Before JENKINS, GROSSCUP, and BAKER, Circuit Judges.

BAKER, Circuit Judge. The main divide in this case, as presented in argument, lies along the line whether, as appellees insist, Fisk in

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tended the operator to use the plug as a tool with which to restore the drop while the operator was moving the plug to the mouth of the jack, or, as appellant contends, he conceived the idea of having the plug automatically and inevitably restore the drop by the plug's insertion into the jack, The expressions in the patent, "the drop lifted by the plug as it is inserted in the jack," "the drop raised by the entrance of the connecting plug [into the jack]," "the drop * to hang in front of the jack and be lifted by the plug as it is thrust into the jack, [and be held by] a trigger or arm when so raised," leave no doubt in our minds that Fisk contemplated automatic restoration of the drop by the action of the plug during its insertion into the jack.

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Did he disclose a practicable means for carrying this idea into effect? "Plug K" of the patent is nowhere specifically described or pictured. This omission and a comparison of the size of the jack opening with the distance through which the drop must be raised to reach the catch as exhibited in Figure 1, have led appellees to assert that the patent shows no way of restoring the drop through the action of the plug except by using the end of the plug to poke (as one might with his finger) the drop into its latched position before inserting the plug into the mouth of the jack. But the drawings are not required to be working plans. They must be read in connection with the description and claims, and any inferences arising from omissions or inconsistencies in the drawings must yield to a legally sufficient specification. "Many material objects and operations," says Robinson (vol. 2, § 491), "are so familiar to the inventor and his readers that their specific description, or even an allusion to them, would be superfluous. The law recognizes these difficulties in the way of an absolutely complete description, and overlooks the defects which they occasion, though it omits appliances, modifications, or processes which persons skilled in the art would know were necessary and would themselves supply. Though it fails to describe implements and materials that are common in use, or methods of construction generally practiced in the arts, it may be complete enough to put before the already trained and informed intelligence of the reader an accurate and entire picture of the invention, from which he can understand it, construct it, and use it as easily as if all these familiar acts and objects were particularly described." The specification calls for a plug of such a form in relation to the form and location of the drop and jack that the mere act of inserting the plug into the jack will restore the drop to its latched position. Plugs with hafts to limit the thrust were common. It seems clear to us that any one who was familiar with existing switch boards and plugs, and who, on reading Fisk's patent, desired to embody the invention in the specific form of Figure 1, would see that the biade of the plug as it was thrust into the jack would not lift the drop into its latched position unless the bent portion of the drop were extended to equal the distance between the latch and the mouth of the jack, and that, if the drop were not so extended, the haft of the plug should be of a form and size to lift the drop into its latched position. That is, it would be purely a matter of the particular builder's choice whether he used the extension on the drop or on the plug or on both.

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