CONSOLIDATED BUNGING APPARATUS CO. ". WOERLE.
ant's devices infringe upon either the first claim of patent 104,318, or the first and second claims of patent No. 151,703. Certainly, the defendant's lantern does not have the annular chamber. .The'devicesby to effect the de,sired e,nd are mechanically and entirely distinct from complaii1ants'patents. Hence, as complamartts' right of action depends upon th'e·infringement by the defenda.ntof their llatenteddevices, it becbmeg necessary to ascertain whether the defend.. ant's devices are mechllnical 'equivalents of the complainants'. Thera may be many modes of effecting" a desired result, and each patent, like these, must rest on their mechanical devices therefor.. The two ends to be songbtwere the nori-extingufshment of the flame through the globe while the lantern was oscillated) and at the same time furnish a full air supply for the flame. As already indicated, Irwin received patents for devices to effect those ends. The defendant, however, uses none 'of those devices; it effects the desired result by other and different methodS from those indicated in the complainants' respectivepatent8. Hence th. cause is dismissed. .
CoNSOLIDATED BUNGING ApPARATUS
(Oircuit Court,N. D. rUin0i8. January 4, 1887.)
1·. PATB'NTS FOR INVENTIONs-J"ODlT INVENTION-,.EVIDENOB.
The were fact that two or more persons unite in .an application for a patent, as the product of their joint inventive efforts, creates a very strong presUII1ptionthat the device sOught, to be patented is the result of their united ingenuity, and to overthrow this presumption the evidence should be clear and unequivocal; citing Gptifried v. Phillip Best Br6'/JJing Co., 5 Ban. &A. 9.
The defense that two persons to whom a patent has been issued were not in fact joint'inventors, is so purely formal that it Cl\nnot be regarded with favor, unless itbe shown.that the action of the patentees in that regard was disingenuous, or calculated to JP,islead the defendants; citing Butler v. Bainbridge; 29 'Fed. Rep. 1 4 2 . ' . 8.' ARE JOINT INvlllNTO:R8. . If one conceives the entire invention, and another makes a suggestion of practical value which the first one failed to think of, but Which is needed to !!lake the conception a success, this will be sufficient to constitute thllmjoint Inventors. . 4. SAME-PRIOR USE-PATENT RELATES BAOK. Where the defendant atteJRPts to defeat a patent by showing that the pat. entee was not the dIscoverer of the thing claimed. the patent will, for the purpose of meeting of proof, be considered as relating hack to the date of the original discovery; citmg DiiMn v. M01/er, 4 Washb. C. C. 68, and other cases. 5. SUIE-WHAT CONSTITUTES. An old device will not be considered sufficient to defeat a patent, when its construction is such that radical changes and additions'WIollld be required be.fore it could be made to perform the work of the patented device satisfactorily. 6. SAME-'"'-TlIE ZWIETUSCH AND HEITMAN PATENT. The distinguishing feature of the Zwietusch and Heitman patent of December 23, 1879, for automatic pressure relief apparatus for beer vessels, stated to be its water chamber or chambers, and such patent held to be ,valid, and to .be infringed by the Woerle bungs. .
In Banning <to Banning, for complainant. West <to Bond, for defendant.
BLODGETT,J. The bill in this case oharges infringement of patent No. 222,975, granted December 28, 1879,,1;0 OttoZwietusch.and Edward Heitman, (Zweituschbeingaasignee·of Heitman,) for an "improvement in automatic pressure relief appa;ra.tus for beer vessele.» The object and scope of the invention, asset out in the specifications, is said to be "to pro-vide an automatic pressure reUefvalve, adapted to be used on fermenting casks containing beer and like material, which will I).ot foul, and whereby the automatic action of the valve is made more certain; and our invention consists-Jiirst, in a apparatus provided with a mechanical fit valve, surrounded by It body of water; and, secondly, in a pressure: relief apparatus having' a body of water interposed between the pressure and ,s mechanical fit valve in the line of the escaping gas, and through which it passes. * * * In the overflow from beer barrels under fermentation is a material called 'hop tar,' which seriously interferes with the operations of any ordinary valve mechanism to which it has access. Our device is particularly adapted to obviate thisdifficnlty, for we surround the valve with a liquid medium, preferably water, whereby the hop tar is diluted, so as not to stick the valves. * * * We makeno claim broadly, in this application, to holding beer, during the process of brewing, under an automatically controlled pressure, for any purpose,for such is not our invention." Briefly described, the appara,fusoovered by the patent is an arrangement of pipes and wat.er chambers, so that the gas from the fermenting beerwill pass through a body of water on its way to the valve, and into and through another body of water, as itescapes through the valve, by which, as is claimed, the hop tar is so diluted as to prevent it from adhering to the valve and valve-seat, and thus obstructing that delicate and nice operation required t6 properly regulate the fermenting pressure. Infringement is only insisted upon as to the first claim. of the patent, , , ' which is: pressure relief apparatus, a ,mechanical tit valve, in combination with a surrounding chamber, K, for containing water to prevent the valve fouling, for the purpose set forth." :rhe defenses interposed are (1) that the: patentees were not joint inventors; (2) two years prior.' publicusej (3) that the first claim is void for want of novelty. As to the first defense, the proof shows that Heitman conceived the idea of a device to accomplish the object of the apparatus. and had some experimental valves made which embodied the general features of the appara.tus, btlt they did not work satisfactorily; the main difficulty being in getting the valve so seated, that it would not leak. when weighted only to resist the comparatively slight pressure of the gas in a fermenting cask. To aid in overcoming the practical difficulties he h8d encountered, Heitman called in the assistanceofZwietusch, who suggested
CO. tI. WOERLE.
a val"ril wiiha .lffiifl?edgebearing, working against a rubber packing in place ofthe Rat or broad-seated bearing used by Heitman, and the proof difficulty was shows that, by the adoption of Zwietusch'ssuggestion, overcome, and the apparatus worked successfully. .When two persons are jointly engaged in the work of invention, it must always be extremely diflicultto determine how much of the successful result is due to each. The mere fact that two or more persons unite in an application for a patent as the product of their joint inventive efforts, certainly creates a very strong presumption that the device is the result of their united ingenuity. It may be that the conception of the entire device is due to but one of them; but the other makt's a suggestion of practical value in working out the idea, and making it operative. But that suggestion may be the very thing the first one failed to think of, and which was needed to make the conception a success. As is most perthlently said by Judge DYER in Gotifried v. Phillip Best Brewing Co., 5 Ban. & A. 9: "To overthrow the presumption of joint invention created by the filing of a joint application upon a joint oath, the evidence should be clear and unequivocal." So in the case of Butler v. Bainbridge, 29 Fed. Rep. 142, lately decided by Judge COXE, it is said: "The defense that two persons to whom a patent has been issued were not in fact joint inventors, IS so purely formal that it cannot be regarded with favor, unless it be shown that the action of the patentees in that regard was disingenuous, or calculated to mislead the defendants." It is urged that Zwietusch invented nothing, because, it is said, he took the mechanical fit valve or the knife-edge bearing valve found in the Slandeman patent of June 11, 1878, which was owned by himself, and put it into the Heitman device; but this seems to me to be enough. It is not claimed that Zwietusch invented the knife.edge bearing valve, and the claim of the patent is for the oomhiMtJion of such a valve with the water chambers which Heitman had invented. Heitman's water chamber alone, or with such a valve as he had .used. was inoperative, although it may be said that the valuable feature of the invention was the water chambers; but it required the knife-edged valve, and the combination of this valve with what Heitman had done, to make the operative device shown in the patent. This seems to me to be clear proof of the joint efforts of the two patentees in the production of the complete machine. The defense of two years' prior use rests on proof tending to show the use of valves operating with a water chamber to regulate the escape of gas from beer casks at Brand's brewery, in or near this city, and the proof only carries such use back to the eleventh of November, 1878, while the complainant's proof shows that the device covered by the patent was completeand in use as early as the twenty-first of September, 1878, and the application for the patent was filed December 7, 1878. This proof brings the case within the rule that, if the defendant attempts to defeat the patent by showing that the patentee was not the original discoveret of the thing patented, the patent will, for the purpose of meeting such proof, be considered as relating back to the original discovery. Dixon
v. MO'JIer, 4 Washb. C. C. 68; Smtifh, v. Goodyear D. V.o,., 98 U.S" 486; Bates v.Oae, 98 U. S. 34. Reeves v.Keystone Bridge 00.,5 Fish. 462; Draper v. Poton18ka M"Uls Cory., 3 Ban. & A. 215. I will also add that this proof of prior use at Brand's brewery is extremely unsatisfactory, resting ,only, in the unassisted recollection of the witness Walther. The valve which is:shown to have been used at Brand's was evidently not organized or intended to be used with water in the pipes; and ifWalthet put water in the pipes of the valves so used at Brand's, as he Swears he did, I ,think it must have been merely for experiment. At the time he says he so used this reliefvah'ewith water, the Zwietusch and Heitman device had become known to brewers, and was in use in Milwaukee, and probably had been shown to brewers in Chicago, and I think the effort was ,to make this old relief valve do the work for which the complainant's valve was intended. As to the last point, that the first claim of the patent is void for want of novelty. The distinguishing feature of this patent, and what gives it utility, is the water chamber or chambers, through which the gas and other overflow of fermentation is passed on its way through the valve, by which the' pressure is regulated, and thereby prevents the valve from sticking, and secures the nice and sensitive operation of the valve which is needed in order to secure the proper fermentation and finish of the beer. NOlle of the devices referred to as anticipatory of this patent show this feature as a part of their construction. The old "relief valve" with which water may have beenused,:as I have befote said, as an experiment after the complainant's device had become known, and the utility of water, or some liquid, to preserve the fluidity of the hop tar had become known, was evidently -not designed or intended for the use of water. That to some extent it approiXimates to the form of complainant's device is obvious, but it is equally obvious that, had the idea of using water in connection with the valve for the purpose designed by this patent been in the mind of the constructor of this old valve, the form and arrangement of some of its' parts have been materially changed. As constructed and used to regulate _ pressure of steam or water in a boiler the or tank, it did not requirea. water chamber; and the suggestion that it hecomes the complainallt's.device by filling the escape-pipes with water is one that only comes after the utility of the complainant's water chamber is shown by this patent. So that this relief valve , as constructed for use on a steam-boiler, -or to relieve a water or steam pressure, does not, in my opinion,anticipate the complainant's device, and would undoubtedly require radical changes and additions before it could perform the . work of the patented device satisfactorily. As has been before said, this first claim is for a mechanical fit valve, in combination with the water chamber, and the record is barren of proof that a water chamber was ever used, ,or arranged to be used, around a valve for the purpose of this device,oT that a water chamber and valve were ever used forthe purposes of this patent, before Heitman began his experiments, which resulted in the Heitman-Zweitusch invention. With the-proof before me, I think there can be only one finding
on this point, and that is that the combination of the valve and water chamber covered by this first claim was the invention of these two patentees. From the tenor of the argument in behalf of the defendant, I conclude that it is, at least, tacitly admitted that the defendant's device is an infringement of complainant's patent. Complainant's proof shows the infringement, and I think it needs but an inspection by even an unskilled person to see that it contains a mechanical fit valve acting in combination with a. water chamber. It is true the defendant's device contains only one water chamber, intq which the gas escapes as it passes the lips of the valve, while the patent describes a device with a water chamber below and above the valve; but I think the change is merely colorable, and the defendant's device is certainly within the first claim of the patent. It'certainly shows a mechanical fit valve in oombination with a surrounding chamber for containing water, and thiil claim seems to me a valid claim under the proof. There will be a decree finding that defendant infringes the complainant's patent as charged, and for an injunction and accounting as prayed.
STEAM-GAUGE & LANTERN Co. and others
(Oircuit Oourt, D. Massachusetts.
ROGERS and others.
December 27. 1886.)
PATl!:N'l'S FOR INvENTIONS-INFRINGEMENT-No.
244,944. Patellt No. 244,944. to Joseph B. StetsoIl, dated July 26, 1881, for device raising glass globes .of lanterns, contains an upper plate above the globe, with:' a central draft-tube that bends over and comes down to the bottom of the lantern, as two tubes. one on each side. Beneath the glass g'lobe is a perforated plate, connected with the upper plate by wires supported laterally by guides on the side draft-tubes, so that, when the upper plate· is raised, the globe is raised with it. The raising and lowering are effected by a wire spring attached to the upper plate, and curved to form a thuJ;Ilb-pieee. Defelldant's lantern, has the side-wires hooked into the perforated plate, instead of wound round or undllr it; and, in place of guides, they are supported laterally by beingbent par'tly round thoside tubes. The spring connecting the upper plate to the globe is som!lwhat different in form; otherwise it is an exact counterpart. Held, an infringement. The patent compared with Ford's, No. 117,899, dated July 25, 1871; Colony'a, No. 200,176, February 12, 1878; Betta', No. 218.917. Aug1,1st 26.1879; Irwin's. No. 89,770, May 4,1869; and Beidler's, No. 187,080. February 6.1877; and held not void· for· want of novelty. .' .
SAME-NoVELTY COMPARED WITH OTHER PATENTS.
E. S.Je.nTl.ey, for complainant. E. J. O'Brien, for defendant.
NELSON, J. The plaintiff's patent, No. 244,944, granted to Joseph B. Stetson and his assignees, July 26, 1881, is for new and USeful improvements in lanterns, and relates to devices for raising, supporting,
lowering,and securing the glass globe or shade of a lantern; in order to fill, trim,light, or extinguish the lamp. In the language of the specification, the invention "consists in a portable lantern having a globe-sup, porting frame, and provided with wire, or other suitable connections, adapted to raise and lower the globe relatively to the surrounding frame. It also consists in such devices, in combination' with a spring or lock adapted to support the lantern-globe in its raised position, and to secure it in its lowered condition. , It also consists in the further devices, and combinations of devices, set forth in the appended claims." The more important features of the invention, as they are set forth in the specifi.cation and drawings, and appear in the exhibits in the case, are these: The upper concave plate or disk of the lantern, which serves to direct the current of heated air upwards, is attached to the upper part of the globe by a wire spring, and has a vertical movement on the central draft-tube. The upper plate and the lower perforated plate on which the globe rests, are connected together by wires supported laterally by guides on the side draft-tubes, so that when the upper plate is raised the globe is raised with it. The raising and lowering is effected by a wire spring attached to the upper plate, and curved to form a thumb-piece. This spring, and the friction of the parts, serve to hold the globe in position when raised. The globe' is made removable by means of the spring connecting it with the upper plate. The combination of the lifting device the other parts of the lantern is what is secured by the patent. The first and second claims are as follows: (1) In a lantern having a globe-supporting frame, the vertically adjustable plate, C, carrying a spring, E, adapted to hold or release the globe, as desired, in combination with the globe, the perforated plate on which it rests, the connecting rods, F, F... serVing to unite the, top and bottom plates, and suitable guides, adapted to give lateral support to the lower part of the globe, SUbstantially as set forth. (2) The tubular frame, D, D, and the globe, G, in combination with the plates, C, p. the connecting rods, F, and the guides, H, whereby said globe is raised and lowered by a suitable lever, and guided or steadied laterally in its movements, for the purpose set forth. The great utility of the invention is obvious upon inspection. It is also proved by the immense number of the lanterns sold by the plaintiffs, exceeding 65,000 dozen annually, as also by the extensive imitations by other manufacturers. It is not a mere aggregation of parts, as claimed by the defendants, but a patentable combination, in which all the parts co-operate to produce a new and useful result. A single one of the parts being absent, the raising of the globe, and the retaining it in position when raised, which is the result to be obtained, would be impracticable with the others. There is no pretense that the invention is invalid for want of novelty, unless it is showed in one or more of the five. following patents: Ford's, No. 117,399, dated July 25,1871; Colony's, No. 200,176, February 12, 1878; Betts', No. 218,917, August 26,1879; Irwin's, No. 89,770, May 4, 1869; and Beidler'8, No. 187,085, February 6, 1877. So far as r have been able to discover from an examination of the specifications and
ELECTRIC GAB-LIGHTING 00. ft. BOSTON ET,ECTBIC 00.
drawings of these patents, without the help of exhibits embodying the inventions described in them, no one of them contains the Stetson lifting apparatus, or anything resembling it. Some of the parts of the combinatiQn appear in all the patents, but the sliding upper disk, and the side-wires supported on guides, are not to be found in anyone of them. So far as these patents are concerned, the Stetson invention is certainly new. The defendants' lantern differs from the plaintiffs' only in the following particulars: In the former the side-wires are hooked into the lower perforated plate, instead of being wound round or under it; and, in place of guides, they are' supported laterally by being bent partly round the side-tubes. The spring connecting the upper plate to the globe is also somewhat different in form from that showed in the drawings of the patent.' In all other respects it is an exact oounterpart. These differences are evidently variations in form only, and not in substance. They are mechanical equivalents for the corresponding parts in the Stetson lantern, and performtne SRme functions, in substantially the saIDe way. They to save the defendants' lantern from being an infringement of the.first and sooond:,claims ofiha plaintiffs' patent. Decree for the plaintiffs. '.
(OWlYUit OQurt, D. J[(u8ach'UllettB. December 24,1886.)
PATENTS FOR INvENTIONS-REISSUE LIGHTING STREET LA"M1'S.
9,743-.ELECTRICAL APPARATUS FOR
signee, dated January 7, 1881, for electrical apparatus for lighting street lamps, kekl void, because broader than those of the original patent. Electric GaBlighU1l,g 00. V. TillotBon, 21 Fed. Rep. 568, and Sam6 v. smith &: Rhod,88 Eleetrie
Claims 2 and 5 of reissued patent No.9,743, granted to Jacob P. Tirrell, as-
as Fed. Rep. 195, followed.
SAME-1NFRINGEMENT. In ll. suit for infringement
of the above patent the plaintiff cla.imed: "In an apparatus for lighting gaB by electricity, in combinatIon with a circuit-breaker located at the gas burner. a lever adapted and arranged to open and close the stop-eock or valve of the burner, and carrying the circuit-breaker." In defendant's apparatus two armatures operate to open and close the gas valve, but there is no separate lever to open and close the valve and carrying the circuit breaker. Held, no infringement; the construction and mode of operation of the two devices being entirely different.
In Equity. E. P. Payson, for complainant. J. E. Abbott, fOJ; defendant.
CoLT,J. Thisauit is brought on the Tirrell reissue patent, dated June, 7, 1881, and numbered 9,743. In Electrie Gaa-lighi,ing eo. v. 'l'illotson, 21 Fed. Rep. 568, and in Electric Gaa-ltighting Co. v. Smith & Rhodes Elect:ric