the wolInd-up spring sWl.·ng 91'.:...'. . . ·.' it rea. ciy to ,its and (2) lD ordertQprQVJ,de means to strike the blow, a coiled sprmg is used,whicbd.s in construction and .operation the same as the spring in the Buudy If the alleged difference e:Xists; iUs not materlalu,'Pon'thttquestiQh of infringement. In tb.e patent the previolllillystored' up in the clockwork impels 'the platen to strike a blow, while in'themachine as made the clockwork throwsthe platen back }1\'to< position to ,strike its blOW., The substantial difference found ':b:V the'Circuit court still exists, which is that in the Bundy force of the .check alone moves the platen, whereas in the Englisbmnchine the previollslystbred up force in' the clockwork brings into position to strike the blow. The decree of the is affirmed, with costs..
l,'PA.TENil'$--:INFJtiNGEN:ENT-:-"OHANGE OF ;FUNCTION BY NATURAL BREAKAGE. It'Ufno'ground :of"!i for bifringement that tbe glass chimneys iln: 'stovebeoome broken, and that such stove, 'if used withpll,t,j$e cOlllplMnanrs patent, where. the evidence that 1wfendant ..er sold a .stove a chimney, and broken. and there is no evidence that''tJ1e stove lI"aseverused withou,t a chImney. ."
; "r r
CARRlNGTON v. SILVER & CO. (Clrol'llt.Oourt,. Si b. New York; December 6, 1894.)
'Cal'l'illgl:on's patents,.Nos. 419,827,420,255, for improvements in gas· principle of which Is, the free radiation of heat at all ppiqts, .and particularly at the. lower portion. of the ·. and the aVOidance upward drl),fts and chimney-like effect above the burner, ito be infringed by a stove: markedly similar in appearance, but ,ill. faQt,jJeslgned,by the use of a glass chimney, to create an upward draft.
Is the owner of two letters patent,granted to James H. Carrington;· for hnprovements In gas stoves. The first of these, No. 419,827,wnl;i'grlihted January 21, 1890. The application was filed November 1, 1889. The ,patentee says: "My invention consists of a stove the body of which Iscpmposed of perforated metal, designed fOJ; burning to the best f;)rnonilluminatiug g;as. By. my invention I obviate all.centrallzation or drafts or currents of air or 'heat, and the heat is given treeoutwAt'd radiation at all points, so that thllre' are no jets of air drawn In, at the base and no chimney-like effect above the burner, which resultsfrQrnl f)O.J;lfining the ·lj.elited. air, as w.ith. common s.tQves of this class. The topo.t1he I3to-r.e is by preference closed or imI1erforate to deflect the He says t'urther that .the body of the stove is of per'may be from one foot to three or more feeib The. perforations are by pr.eference small and close together. , . .prqIH",one hunqred, to thrE¥l' !:lundred perforations to the square inch TlJ.e toP of. the stove. is ·without apertures. and servef'fOiintercept the Jrtsing currents of heated,a,lr and causes them dow'nward'atidoutward.'!Tbe 'burnet may be of any approved type lIu'-<1.1$ located a,t the base ofilie; stove. The bottom of the stove pillte,: no draft Into tlle stove consists .lilf.1t. except through this bottom plate. For nigh stoves a centrally located per-
in equity. This was'a suit by Anna A.. Carrington' &: Co., a corporation, for infringement of letters patent.
SILVER &; cO.
forated is1used to deflect the heat and throw it· out more at the base of the stove and intercept upward drafts. This construction allows a full supply of air and produces thorough combustion and a full lateral radiation of heat at all parts of the body of the stove. The claims are as follo,vs: "(1) As a new article of manufacture, a gas stove consisting of a base, a hollow body portion mounted on the base and having smaIl interstices or perforations extending substantially to its lower end, and a burner within the body portion and. near the lower end thereof. substantially as set forth. (2) As a new article of manufacture, a gas stove ,consisting of a base, a burner, a hollow body portion inclosing the burner mounted on the base, and having small interstices or perforations extending below the normal level of the flame of the burner, substantially as set forth. (3) As a new article of manufacture, a gas stove consisting of a base, a hollow body mounted on the base and having small perforations or interstices extending substantially to its upper and lower ends, a burner within the body portion near the lower end thereof, and a cap the upper end of the body, substantially as set forth. (4) As a new article of manufacture, a gas stove consisting of a hollow body closely perforated or intersticed throughout its length, a supporting base, a perforated or intersticed bottom for the body, a burner within the body adjacent to the -upper side of said bottom, and a cap closing the upper end of the body, substantially as set forth. (5) As a new article .of manufacture, a gas stove consisting of a base, a hollow body portion mounted on the base and having small perforations 01' interstices extending SUbstantially to its lower end, a burner within the body portion near the lower end thereof, and a transverse deflector within the body above the burner, substantially as set forth." The second patent, No. 42<J,225, was granted January 28, 1890. The application was filed November 16, 1889. The patentee says: "1iy invention relates to certain improvements in gas heating stoves; and it has for its object to provide an illuminated gas stove, or stove in Which the reflection from the flame is made to light up and give a pleasing effect to an illuminated transparent shell placed within the foraminated or woven-wire casing forming the body of the stove. It has been common to employ a bright metal reflector in gas stoves; but these become tarnished, and besides do not produce an effect visible from all sides of the stove. My invention consists of a shell made in the shape of a cone or dome and formed of transparent material, preferably of differ-ent colors, so as to form a pleasing and mellow glow from the reflected light received from below, and which is visible through the foramina ted casing from all sides of the stove, as hereinafter fully described." He says further that within the cylindrical casing is an lldjustably supported transparent shell open at its top and bottom. This shell is preferably shaped like a dome or a truncated cone and is made of mica, porcelain or colored glass. The light from the burner strikes the inner wall this shell and the illumination thus produced is clearly visible through the perforations of the cylinder. This produces a pleasing effect upon the eye. The shell, like the deflecting plate of the previous patent, also serves to check the upward passage of heated all' and forces it out through the perforations below the shell and near the floor. The remaining portions of .hot all' pass through the opening at the top of the shell and are deflected through the upper perforations. "In this way the stove is made to heat uniformly from bottom to top, an excessive heat at the top is avoided, and the heat Is kept down in the lower portion of the room, where it does the most good." The claims are as follows: "(1) In a gas stove, the combination, with the foraminated or woven-wire casing and a subjacent burner, of an illuminated shell placed above the burner within the circumference of the casing, substantially as shown and described. (2) A gas stove having above its burner an illuminated shell surrounded by an outer casing of foraminated sheet metal or .woven wire, substantially as shown and described. (3) In a gas stove, the combination, with the foramillated or woven-wire casing and a subjacent burner, of a cone-shaped or converging shell having its larger end at the bottom and sustained upon the outer casing at or near its middle, substantially as shown and described."
diagram wDl serve to Illustrate the stove ot both patents.
The defenses to both patents are lack ot patentability and nonlnfringement.
H. A. West, for comp1l;Hnllnt. J. E. :M. l3owen, for defendants.
COXE, District Judge (after stating the facts). The fundamental principle upon which the Carrington stove operates is the free radiation of heat at all points and particularly at the lower portion of the stove. To produce thisresu:It the casing is perforated from top to bottom with small holes close together and is closed at the top with an impl'rforate cap. In high stoves a deflecting plate is suspended centrally in the drum to intercept the heat and throw jt ou.t at. the base of the stove. What the patentee wished to gain was free lateral radiation at all points-at the bottom as well as the top of the stove. What. he wished to avoid was upward drafts and chimney-like effects above the burner. ;In this distinction lies whatever merit there is in the Carrington stove. Its novelty consists in departing from the old method of utilizing upward drafts by the substitution of mechanism, the principal object of whIch is to destroy such drafts and substitute horizontal radiation therefor. This is. very clearly stated in complainant's. brief as follows:
"The rapid circulation of air lillocaIized at the bottom of the room by numberless forced jets, like so many 'horizontal cl!.imneys, each jet havlIll
CARRINGTON tI. SILVER & CO.
a lateral impetus causing mainly a horizontal circulation of air Instead of a vertical circulation as in other gas stoves; that is to say, instead of a chimneylike vertical column of air ascending to the ceiling as with common stoves, a horizontal projection of currents is produced by the Carrington stove."
In view of the conclusion reached upon the question of infringement it is unnecessary to discuss the prior art further than to say that at the date of Carrington's application gas stoves were old. They had been known for years, and, in appearance, were similar to the stove of the patent. Perforated bottom plates and drums and burners located near the bottom plates were well known. So were drums filled with small perforations, in similar structures. A broad con· struction of the claims is, therefore, inadmissible. The similarity in appearance between the defendant's stove and the Carrington stove is so marked that there is danger of being misled upon the question of infringement. An examination of the two structures will, however, demonstrate the fact that they operate upon radically different principles. Indeed, the defendant has taken pains to reo tain the very features which Carrington denounced as defects and endeavored . to eliminate by every means in his power. The defendant's stove is constructed with an interior glass cylinder, just inside the sheet-metal casing, extending about three·fourths of the distance from the base to the cap. Below this glass cylinder the casing is perforated as in the Carrington stove, but above it the openings are comparatively very large, leaving an almost unobstructed for the heated air at the top of the stove, after first being superheated by a cast-iron radiator located at that point. The glass cylinder acts as a chimney to carry the heated air directly to the top of the stove and effectually prevents any passage of air through the small perforations. The perforations are there to add beauty to the stove and protect the glass; not to perform any heating function. The stove would operate in precisely the same wltv if the lower casing were removed and the upper casing with the large perforations made to rest directly on the glass chimney. So, too, the operation would be the same if the chimney were omitted altogether and the drum made without perforations, except the large ones at the top. This is clearly proved by the defendant, ana, subsequently, admitted by the principal witness for the complainant who says: "The inside glass chimney is carried up to such a height that it partially destroys the desired result, that of having the cold currents of air passing over the flame." In short, Carrington's purpose was to get heat from the bottom of the stove, that of the defendant to get heat from the top only. The defendant may have copied Carrington's design but not his mechanical arrangement-not his principle of heating. It is argued that the glass chimneys become broken and that, if used without the chimney, the defendant's stove infringe. The answer is that the evidence is uncontradicted that the defendant never sold a stove without a chimney and that it has replaced a great many broken chimneys. There is no evidence that defend· ant's stove was ever used without a chimney, certainly none that defendant was privy to such use. As the defendant's drum, for all purposes except ornamentation, is without the small perforationa,
FBDEItAt .REPORTElt,' vol. 64.
:to close .'them- for all .does not infctpge,th'e daims of No. 41:9,827. ., . : '. " 12.2..5. . . ... SR.I ,.C,l.,.ill. ..s.jl.f :m . . 420 e:. :0,. i.o,f1'.in.g.ed. The burner. Th-: for is not not a<lJustable, and It IS notsupported sense of the patent. Its is the direct opp(lsite of that attributed to the Neither] be .· that the radiators are equiva}ent,s'be,cause red.hot. The .object 6f the OaJ,'rillgton shell IS of, heat ,at the top of ill,material, sp.aJleap.d tp.e radiatpl'S are 'totallY different t4e shell of the. .. It .follows that the bill ,must be dismisse4i . , ': !' ,
BONSICk MACH. ; , . 'I, . . ., ,"
TEM:PT.,·l;;. . .
=======;:= CO. v. NATIONAL CIGARETTE co. ' ,
(O.t'Cuit Court,Sk D.New
October 2, 1894.)
INFRINGEMENT-MoTION TOPUNrSH FOR CON" .... , .
qpe"t!Q" whether de(endant il1fringes by making a .machine differing insoll)e respects f/:OIU one previo\lsly held by the court to be an infringement cltnnot be on amotfon to punish for contempt, when the new machine is' made tinder a· patent Issued after the injunction was granted.
by the Bonsack ::Machine Company against the Company for the of certain letters patent for machines. An injunction was heretofore granted (63 Fed., 'and.a motion is now made to punish for contempt for alleged .mlation thi:!roof. . Duncan&' Page, for coo:npillinant. Cowen, Dickerson & Brown, for defendant. This WIlS
I LAOOUBE,Circuit Jrudge. This is a motion to punish for contempt. .When the suit :was originally brouglit, defendants were using amachine:whichthe court has, after argument, held to be an infringement of complaimints' patents. The defendants are now u$ing a machine whichln some respects differs from the infringing machine alieady" passed Upon, and it appears that it is made under a patent'issued subsequent to the decree. The weight of authority is clearly against the proposition that in such a case the question of infringement is to be settled on amotion to punish for contempt. ·The new machine is broughtinto court with prima facie proof that, in the opinion of the patent office, it is patentablydifferentfrom the m.a<lhine of complainants. Whether it is an infringement or not should be settled by -appliCation for injunction, not for commitment for contempt.. Buprk v.:,llilhaeuser,2 Ran.' & A. 460, Fed. Oas. No. 2,107;;Onderdonk v. Falining, 2 Fed. 5flS; Wirt v. Brown, 30 Fed. 187; Truax v. DetweUnr;46li'ed.l1:'L Motion denied.