COCHRAX V. ZIMMERMAN.
ment of such pecuniary damages as may accrue to the defensehy rcason thereof, if it shall appear finally that this court has been ousted of jurisdiction by the necessary effect of the lapse of the Spanish pat·
COCHRAN et aI. v. ZIMMERMAN. (Circuit Court, N. D. OWo, E. D. July 14, 1892.) No. 4,840.
PATENTS FOB lNVENTIONS-REISSUES-VALIDITy-FUBNACE FUEL FEEDER.
Letters patent No. 368,813, issued August 23, 1887, to Cochran & Lindsay, covered a furnace fuel feeder, consisting of a discharge pipe through which, by an air blast, dust and shavings were carried from the woodworking room into a collector. The collector was a chamber having an opening through the top to permit the air to escape, while the dust and shavings fell down through a discharge pipe into a conductor pipe, wWch was divided into two branches,-one leading to the receiving room, and the other directly into the furnace. A small pipe, F, was connected with the discharge pipe just before it entered the collector, and was carried down, and introduced into the conductor pipe near its mouth; thus applying a. part of the air blast to the shavings and dust just before they entered the furnace. TWs pipe was controlled by a cock wWch regulated the amount of (he blast. 'I'he patentee claimed, as part of his combination, "the air pipe, F, provided with regulating cock, f, connected with said conductor, D," and wIth means for forcing air into the conductor for discharging the shavings ivtc> the furnace, etc. Upon tWs patent, reissue No. 10,942 was granted July 10, 1888, and it was stated in the specifications thereof that the pipe, F, aithough preferable, was not essential, and any other means for introducing a blast into the condllCtor pipe would answer; and from the claim the words above quoted were omitted. Held, that these changes enlarged the scope of the invention, and, in the absence of mistake or inadvertence, the reissue was invalidated thereby. The reissue was also void because of anticipation by the Emlaw patent, and by the patent of August 28, 1888, (No. 388,468,) to A. Warne, for wWch the application was tiled February 7, 1887.
In Equity. Suit by Loyal Y. Cochran and William I. Lindsay against Frederick Zimmerman for infringement of a patent. Bill dismissed. M. D. & L. L. Legget, for complainants. Offield & Towle, for defendant. Before TAFT, Circuit Judge, and RICKS, District Judge. TAFT, Circuit Judge. This is a bill in equity to restrain defendant from the manufacture of a furnace fuel feeder alleged to be an infringement of a patent owned by the complainants. The patent relied on in this bill is a reissue, No. 10,942, dated July 10, 1888. The original patent was No. 368,813, dated August 23, 1887. Application for it was filed June 6. 1887. The 'defenses are-First, that the reissue was void; second, that the combination claimed as the invention was not novel; third, that it did not involve patentable invention; and, fourth, that defendant's feeders do not infringe. The furnace fuel feeder described in complainants' original speciv.53,F.no.8-51
ficittion oo¥st¥of a an air lrottHit'fUB,'dtlst 'CAmed from the, wood-workmg room.' into l!' collector. . Thecollectori was a box or chamber So constructed as to permit the air blast to escape through the top, and the dust and shavings, by force of gravity, to fall down through a discharge pipe into a conductor pipe. The conductor pipe was divided into two branches,-.:..one: opening and emptying. into a receiving the collector, and theo;ther room situateq..directJy by a curved, downward course, through the brick wall of the recehing room into the furnace room, and thence into the furnace. At the a gate or valve capable of adjustment so that the dust or ,lilhavings might be directed into.either the receiving room or theful"riac(;l. or be divided between them. A small pipe was placed i,n the m:a,w. .air blastpip¢, just b¥0i'e it entered the collector, and was down by'. the side.. of the collectoJ,', into the recei \'ing room, where it was introduced into the conductor pipe, and at a point very neat'the furnace mouth of the latter. This small pipe was so placedi,Ij ,tlle blast· and the' CQnductor as to carry and apply a par:tof the.air.blast to the dust and. shavings j.ust before they entered the furnace.· The pipe had a cock to regulate the amount of the blast. The claim under the paoont was as follows:
"In ruelfeeders for comblnatitll1 wIth the collector, A, discharge pipe, E, of cond;nctor pipe,D, having branch, H, and regulating valve, I,and connecting thecollootor wIth the furnace, and the all' pipe, F, Pl'o,:,"Ided withreg'ulating <lock, f, connected wIth said condu.ctor, D, and with means for forcing all' Into the conductor for discharging the shavings Into the furnace, SlibstantIally as llJ1d for the
In the reissued patent the specifications and drawings are just the same, except that this clause iSa.d.ded in the speeifications: "The pipe, F, although preferable, is not essential, as any other means :01 introducing a blast into pipe, D, would answer the purpose;" and in the claim a change is made from the original by omitting the words, "and the air pipe, F, provided with regulating cock, f, said conductor, D." . ' ·. It is conceded that. every element 'Of .the original patent is old, with the exception, 'perhaps, of the application of the air blast both to the carriage of the shavings to the collector, and to the forcing of them into the furnace from the· Conductor. The patent claimed is not, either in the original or in the reissue, for any single element or device, but for the. cOD;l.bination of old elements to .produce a new result. We are of the opinion that the reissued patent is void, because the new . and the oIllission of the clause in the claim, ope:ratedto enlarge the scope of the invention beyond what was 'intended to be claimed in the original. The feature of the original patent3J.ffect,ed by the change is theb9nveyance of part of the air blast into the furnace m9uth,.of the conductor. A reading of the that, in the mind of the in." ventol'S, it was a valuable part of the combination that the samfo blastwhicrr carriedthf'l shavings t9the. conductor could be utilized by means of pipe; F, .fOr the purpose of forcing the shavings through the lower end of the'conductor into the furnace. The claim is rather
803 bunglingly worded,itistl'ile; hut, taking'thedescrip-· tion and specifications with the olaim, the only construction which can be given to the w()rds o:fthe claim, "arid' the a..irpipe, F, proVided with regulating cock, f,connected with said conductor, D, and ·with means for forcing air into the conductor for discharging the shaving'B into the furnace. substantially as and for the purpose to render them as if they read, "and air pipe, F, provided with regulating cock, f, connected with said conductor, D, as a· means for forcing air into the conductor for discharging the shavings into the furnace, substantially. as and for the pu.l-pose specified."'rhe claim on the reissued patent covers the application of air or steam at the mouth of the conductor by anymeans,-whether from the main air blast used to carry the shavings to the conductor, or from an independent source. This isadistinct enlargement of the claim. 'fhe original specification and claim .were entirely operative· and practicable. There was no defect in the description, and no omission from. the claim of any element which waS palpable on an examination of the patent. No mistake or inadvertence on the part of the inventor or solicitor in the specifications or claim. is attempted to be shown: Under these circumstances the deciSions of'the supreme court leave no doubt of the invalidity of the reissued patent. Gage v. Herrmg, 107 U. S. 640, 2 Sup. Ct. Rep. 819; Miller v. Brass Co., 104 U. S. 350; Leggett v. Avery, 101 U. S.256; Gill v.Wells, 22 Wall. 1; Russell v: Dodge, 93 U. S. 460. In the last ca,se the patent was for an improv& ment in the treatment of leather by use of fat liquor. The original patent was for a process for treating skins with a compound of Which heated fat liquor was an essential ingredient. The reissued patent covered the use of fat liquor in any condition, hot or cold, and when used alone or in a compound. Mr. Justice Field, in delivering the opinion of the court, said:
"'['he original patent was not inoperlLtive nor invalid from any defective or insufficient specification. The description given of the process claimed was, as stated by the patentee, full, clear, and exact, and the clalm covered the specification. The one correspondeq witll the other. The change made in the old specification, by eliminating the necessity of using the fat liquor in a heated condition, and making, in the new specification, its use in that condition a mere matter of convenience, and the insertion of an independent claim for the use of fat liquor in the treatment of leather. generally, operated to enlarge the character and scope of the invention. The evident object of the patentee in seeking a reissue was, not to correct any defects in specification or claim, but to change both, and thus obtain, in fact, a patent for a different invention. This result the law, as we have seen, does not permit."
The facts and the language used make the case exactly applicable to the one under consideration. On another gTound, also, the complainants must fail. The COmbination of elements they rely on in their reissued patent is a combination of old clements to accomplish an old result. In Emlaw's patent, dated October 17, 1871, (No. 120,052,) and described as an improvement for sawdust to boiler furnaces, substantially all the clements claimed by complainants in their reissued patent are present. There the sawdust is carried, by any suitable carrier, to a feed corresponds with the collector of complainant, and. like it, is placed above the boiler furnace. There the sawdust is
distl'ibuted;by means of an endless chain, to se\Tel'al conductors, lead· ing into (ij:fferent furnaces.· . each conductor is a valye, by opening whieh the sawdust can be diverted from the furnace on to the floor of the furnace room. This corresponds to the branch pipe of complainants, leading into the so-called "receiving room." By means of a pipe running from a fan to the furnace months of the conductors, an air blast is applied to the sawdust just before it enters the furnace. This corresponds with the claim of complainants, in their reissued patent, for any means of applying force to the sawdust and shavings Il.earthe furnace mouth of theconductol' pipe. We have in the Em· law patent, then, (1) the (2) the conductor, through which the d1J,$t drops by force of gravity; (3) the valve for diverting shav· ings from furnace, and (4) the reinforcement of gravity by air blast at the mouth of the substantially as they are claimed by oomplainants. They make their entire combination, and produce the result. Thefumace fuel feeder of A. Warne, patented 28, 1888, (No. 388,468,) for which application was filed Feb· 1887, five months before complainants filed their application original patent, anticipate,s in every particular the combinar tion of complainants, as specified and claimed in the reissued patent. It has the main air .blast discharged into a collector, and escaping from its top ; the falling of the dust into a conductor, the diversion, by branch pipes and a valve, of the dust from or to.the furnace, and to or; from the receiving chamber; and the application of a steam blast t4e furnace mouth of the conductor. There are other fe/ttures of this invention not contained in complainants' patent, but every element which is in theirs. is in Warne's, to produce the same result In:t1leview we have taken of the validity of the reissue, and its novelty, it is unnecessary to consider. the other defenses. Bill dismjssed.
BRUSH ELECTRIC CO. et lil. v. ACCillIDLATbR CO. (Cireuit Court;n. New Jersey. January 19,1893.)
PATENT FOR INVENTIONS-INFRINGEMENT-INJUNCTION-CONTEMPT.
An injunction having issued restraining defendant from making,any secondary or storage batteries embodying the invention covered by letters patent Nos. 266,090 and 337,299, issued,respectively, October 17, 1882, and March 2, 1886, to Charles F. Brush, defendant subsequently, after a full hearing, procured, upon certain conditions, a modification thereof, allow· ing it to supply to Ii certain street-railway company, with' whom it had a contract, certain batteries required by that company in renewal of batteries already furnished, which were ofa size and form that complainants could not supply. In procuring this order, defendant produced in court its contract with the said railway company, which proYided that defendant should for three years superYise the operation of the electrical equipment supplied by it, and for this purpose should furnish and pay the salary of a supervising electrician, W];I.0 should have general charge of the operation of the storage batteries in the company's cars. Held that, although the order of modification merely permitted defendant to "supply" such batteries, it must be construed to also permit defendant to supervise their operation according to the contract, and defendant was not guilty of contempt in so doing.