LANYON ZINC CO. et al. v. BROWN et al.

(Circuit Court of Appeals, Eighth Circuit. November 10, 1902.)

No. 1,786.

1. PATENTS-CONSTRUCTION OF CLAIMS-ORE ROASTING FURNACE.

The Brown patent, No. 471,264, for an ore-roasting furnace, claim 1, which covers a furnace in which the mechanism for operating the rabbles for stirring and advancing the ore is placed in a supplemental chamber for the purpose of protecting it from the action of the heat, dust, and fumes, was not anticipated, nor is it limited, by the Stanley patent, No. 61,577.

Appeal from the Circuit Court of the United States for the District of Kansas.

Albert H. Walker and John H. Atwood, for appellants.

Philip C. Dyrenforth, for appellees.

Before CALDWELL and THAYER, Circuit Judges, and HALLETT, District Judge.

HALLETT, District Judge. This case was before the court at the last term on appeal from an order made in the circuit court granting an injunction pendente lite. The history and character of the case and its dependence upon Metallic Extraction Co. v. Brown, 104 Fed. 345, 43 C. C. A. 568, is fully stated in the review of the case at that time. (Č. C. A.) 115 Fed. 150. At that hearing appellants assigned error upon the ruling of this court in the Metallic Extraction Company Case sustaining claim 1 of the Brown patent, No. 471,264, and put before the court a patent issued to William C. Munroe, No. 227,818, in support of that assignment. The Munroe patent was considered at length, and found to be very different from the Brown invention. Afterwards the case was carried to final decree in the circuit court, which sustained claim 1 of the Brown patent, No. 471,264, and declared that respondents, in constructing a Ropp furnace under patent No. 532,013, had infringed upon the Brown patent. The decree was entered July 3, 1902, and this appeal was taken from it.

At this hearing, error is again assigned upon the ruling of the court upon claim I of the Brown patent in the Metallic Extraction Company Case. Another patent, not heretofore considered by the court, is now put before the court to show that the former ruling was not correct. This patent, No. 61,577, was issued to I. N. Stanley, January 29, 1867. Figures 1 and 2, shown upon the opposite page, exhibit the form and structure of this device. The Stanley furnace is round, and it is described with reference to Fig. I on the opposite page in claim I of the patent as follows:

"An oven B, revolving arms F. F, and upright shaft K, operated by means of gears G, G, and horizontal shaft H, or their equivalents, substantially as described."

The inventor describes the manner of putting ore into the top of the furnace through the hopper L. in the figure in words following:

"The ore pulverized is placed into a hopper near the center of the furnace, and is conveyed through a tube of fire clay or other material of a refractory

nature, near the center of the oven B, and is from thence conveyed in a circular manner from the center to the circumference, where it passes through an opening, J, into a receiver for amalgamation or other treatment."

The plows or rabbles of the Brown patent, by which the ore is stirred, are in the Stanley patent called carriers, and the ore is delivered into the furnace through them. Claim 2 of the Stanley patent reads as follows:

"2. I claim the conveying the ores or other material, while being operated upon, from the central part of oven B to the circumference, and there discharging them, or from the circumference to the center as may be desired, by means of conveyers A, A, connected to arms F, F, as shown on Fig. 5, substantially as described."

How the ores would be conveyed from the center to the circumference, or in the opposite direction, is not explained in the patent, but it may be assumed that this result might be obtained through some inclination of the hearth. Provision was made for reversing the rotary movement of the rabble carrying arms so as to protract the period of

roasting, and thus prevent the discharge of the ores from the furnace. prematurely. A considerable part of the patent is devoted to the subject of introducing air through the shaft K and the rabble bearing arms for the purpose of keeping them cool and supplying oxygen to the furnace. Another subject of considerable importance in the mind of the inventor is a condenser located near the furnace, into which the gases of the furnace could be driven, and thence conveyed to furnaces marked T, in Fig. 2, to be used as fuel for heating the furnace. Nowhere in the patent is any claim asserted in respect to the power for driving the rabbles. On the contrary, the inventor uses this language in respect to the driving apparatus:

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and in applying the power for the operation of shaft and conveyer arms, I do not confine myself to the arrangement of shaft below, as shown by Fig. 1, as it may be more convenient in some cases to apply the power from above; nor do I confine myself to the use of gears G, G, as it may be desirable to substitute a worm and gear instead."

No further description can be necessary to show the radical difference between the Stanley and the Brown patents in respect to the subject under consideration. In the Brown patent the problem to be solved was that of withdrawing from the furnace the rabble driving apparatus to a place without the furnace in which it would be less exposed to the heat of the furnace. In the Stanley furnace no such problem occurred or could possibly arise. The scheme and plan of that furnace embraced no more than the rotary movement of the rabbles and the arms supporting them within the furnace. For this purpose the inventor resorted to the simple device of beveled gears, used from the earliest times for converting horizontal into upright movement. The shaft through which, the power was applied must necessarily be in the center of the furnace, and whether the means for turning the shaft should be applied from above or below, and in one way or another way, was a matter of convenience only. And so it seems to us that the chamber under the hearth of the Stanley furnace was not an essential part of that invention, and its location under the hearth or elsewhere is a matter of no significance whatever.

When we look to the nature and quality of the Brown and Stanley furnaces, the contrast between them widens as we proceed, until it becomes apparent that no feature of either of them has any bearing upon the other. The experts who testified at the hearing were unable to say that the Stanley furnace was ever used in a practical way, or that it could be made useful as its author intended. However that may be, it is plain that, under the rotary motion of the plows or rabbles, there was no forward movement of the ore on the hearth in the course of the furnace, as in the case of the Brown device.

In the first claim of the Brown patent, the furnace to which the invention is to be applied is described as a "furnace having means for stirring and advancing the ore." Brown did not invent the means here referred to, but he utilized such means by preserving the movement of the plows or rabbles in the course of the furnace which carried the ore forward to its destination. No such result is accomplished under the Stanley patent. Counsel for appellants says in his brief:

"The appellants do not contend that the Stanley patent negatives the validity of claim 1 of the Brown patent; but they do contend that it limits

that claim to an ore-roasting furnace, having its supplemental chamber at the lateral side of the main roasting chamber."

In our judgment the Stanley patent, though senior in point of time, has no effect whatever upon the Brown invention. The argument of counsel, often renewed in this court, that the first claim of the Brown patent was too broadly construed in the Extraction Co. Case, must be passed without consideration. As between the Brown and Ropp furnaces in controversy in this suit, which were also in controversy in the Extraction Co. Case, the question of the proper construction of claim I of the Brown patent is not open to debate in this court. The decree of the circuit court is affirmed.

AUSTRALIAN KNITTING CO. v. WRIGHT'S HEALTH UNDERWEAR CO. (Circuit Court of Appeals, Second Circuit. December 2, 1902.)

No. 58.

1. PATENTS-INFRINGEMENT-KNITTING MACHINES.

The Kinsey patent, No. 424,314, for a burr wheel for knitting machines, held not anticipated, valid, and infringed.

Appeal from the Circuit Court of the United States for the Southern District of New York.

For opinion below, see 115 Fed. 527.

George A. Mosher, for appellant.
W. P. Preble, Jr., for appellee.

Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.

PER CURIAM. We are convinced that the proof fails to show prior use beyond reasonable doubt. The defense of laches has not been clearly established. It depends largely for its support upon inference and conjecture. The facts are capable of a construction consistent with due diligence on the part of the appellee. The stipulation entered into by counsel for appellant, in connection with the other evidence in the case, clearly establishes infringement. The only question which we regard as at all serious arises upon the Condé patent, but, after careful consideration, we are satisfied with the interpretation of the patent by the judge of the circuit court. Figs. 4 and 5 of the drawings, considered alone, may fairly be said to show the enlargement or cam attached to the blade. But there is nothing in the description to support such an interpretation. In fact, the language there used would seem to indicate that the enlargements used were the well-known filling blocks of the prior art. The claim, too, is in accord with this interpretation, as it speaks of the blocks as separate and distinct structures, namely, the "filling-blocks, c, arranged between the said two series of wings." Nothing further need be added to the opinion of the circuit court.

The decree is affirmed.

1. PATENTS

GENERAL ELECTRIC CO. v. WISE.

(Circuit Court, N. D. New York. January 17, 1903.)

INJUNCTION AGAINST INFRINgement-DefENSES.

That a defendant is able to respond in damages is no defense to an application for an injunction against infringement of a patent. If the patent is valid, the owner has the absolute right to be protected in the exclusive use of the invention which the law secures to him during the term of the patent.

2. SAME VIOLATION OF ANTI-TRUST LAW.

That a complainant is a member of a combination in violation of the anti-trust law of July 2, 1890 [U. S. Comp. St. 1901, p. 3200], does not give third persons the right to infringe a patent of which complainant is owner, nor preclude complainant from maintaining a suit in equity to enjoin such infringement.

8. SAME-ANTICIPATION-PRIOR UNSUCCESSFUL DEVICES.

A patent for an invention which successfully accomplishes a useful result is not void, for anticipation or prior use, because of a prior device, however similar in combination or close in resemblance to that of the patent, where such prior device was not operative, and failed to produce the result sought, and which is produced by the device of the patent. 4. SAME-INFRINGEMENT-INCANDESCENT LAMP SOCKET.

The device of the Tournier patent, No. 559,232, for an incandescent lamp socket, was not anticipated by either the Weston socket or the Westinghouse push button socket, both of which failed to accomplish the result sought, and attained by the device of the patent. Claims 1, 2, 3, and 4 construed, and held valid and infringed, on a motion for a preliminary injunction.

In Equity. This is a motion in the above-entitled cause for a preliminary injunction restraining the defendant, his agents and servants, from manufacturing and selling certain electrical apparatus (sockets for incandescent lamps) alleged to be an infringement of the Tournier patent (letters patent No. 559,232), particularly claims 1, 2, 3, and 4 thereof, a structure or invention alleged to be indispensable in the art of electric lighting.

Samuel Owen Edmonds, for complainant.

Alfred Wilkinson (William Kernan, of counsel), for defendant.

RAY, District Judge. The complainant's claim is: That prior to April 28, 1896, Julius C. Tournier, a citizen of the state of New York, residing at Schenectady, was the original, first, and sole inventor of certain new and useful improvements in sockets for incandescent lamps, fully described in the letters patent, No. 559,232, and which had not been used by others in this country before his invention or discovery thereof, and which had not been abandoned or patented or described in any printed publication in this or any foreign country before his invention or discovery thereof, or more than two years prior to his application for said letters patent, and which were not, prior to his said application, in public use or on sale in this or any other country for more than two years. That all lawful conditions having been complied with, on the 28th day of April, 1896, letters patent, in due form, were duly issued therefor to the said Tournier;

11. See Patents, vol. 38, Cent. Dig. § 495.