FEDERAL REPORTER.

PEENEY

et al.t1.

CITY· OF LAKlj)V'IEW.

(Oircuit Oourt. No

n. lllinoi8.

June 30,1888.)

1.

PATENTS FOR INVENTIONS-ANTICIPATION-ApPARATUS FOR FREEUlO WATER MAINS OF OBSTRUOTIONS.

Patent No. 312,158, granted February 10, 188li, to Samuel B. Peeney. which is for an arrangement of pipes and valves to free suction mains and strainers of sand, leaves, etc., and other obstructions. consisting of a plan for reversing the current of water in the suction mains without stopping the pumping machinery, by means of a series of by-pass pipes and valves, is not anticipated by a method of flushing the mains and reversing the current by gravitation, simply allowing the water to !low back to the source of supply. To defeat a patent by two years' prior use of the invention it is not sufficient thatthe plan had been formed by the inventor, and a model made for that period, where no'working apparatus was actually made and used two years before the application for the patent was made.

2.

SAME-PRIOR USE.

In Equity. Bill to enjoin infringement of patents. O. Linthicwm, for complainants. H. H. AnderBOn, for defendant.

a.

BLODGETT, J. This is a bill in equity seeking an injunction and accounting for the alleged infringement of patent No. 312,158, granted February 10, 1885, to Samuel B.Peeney, assignor of one-half to Jones Patrick, for an "improvement in mains for water distribution." The invention is described in the specifications as relating to"Improved arrangement of pipes and valves to be used in freeing sllction mains and strainers of obstructions, such as sand, silt, and gravel in the said sQction mains. and leaves, weeds, and other like suspended matter, and ground or.anchor ice on the said strainers. Heretofore there has been no adequate ·apparatus for flushing the suction malUS and strainers located in the bed of a lake or P9nd without stopping the pumps, and it therefore often becomes necessary to stop the water supply of towns and villages which draw their supply from lakes and ponds. when it is pumped directly into the supply mains, and where occasional high winds in winter cause a stoppage. or greatly diminish Iheregular supply, by reason of a collection of ground or anchor ice ,upon the strainer, and at other seasons of the year by reason of the collection ofleaves, weeds, and other like obstructions upon said strainers. The object of my invention is to prOVide means of reversing the,current of water in the suction mains for the purpose of forcing out the obstructions without stopping the pumping machinery, and Without materially interfering with the distribution of the water in the town or village." The inventor then proceeds to describe his device by showing a series (If what he calls by-pass pipes and valves, by means of which the force of the pump can be used to drive a column of water outwardly through the suction pipes, thereby expelling obstructions which may have gathered in the pipes, or upon the strainers. The patent contains but one claim, which is: "In a system of water distribution, the crib, pump. and suction and delivery pipes, combined, substantially as set forth, with an independent flushing pipe. connecting the suction and delivery pipes and valves located in said in-

PEENll:Y .V·. CITY. OF LAKEYIEW.

587

dependent flushing and suction pipes, whereby the current normally drawn through the crib may be ·.andthe crib and suction pipes cleaNd of obstructions, as specified." The main defense interposed is-Firm, that of two years' prior 11se before the patent was applied for; and, second, want of novelty. The public use insisted upon is substantially this: That Peeney was the engineer in charge of the water-works at the city of Evanston, in the state of Illinois, and while so in charge he devised and put in operation the apparatus now covered by his patent; and it is claimed that this flushing apparatus was put in by Peeney at the Evanston water-works as early as 1881. There is some contradiction in the testimony upon this question, but it mainly, I think, grows out of the cross-examination of Peeney himself, where he became confused as to the time when he made his model or small illustrative apparatus, and the time when the actual working apparatus was put in. I have no doubt from the proof that as early as 1881 Peency had made a drawing, and substantially made a small model-not a working apparatus-of his device; but the preponderance of the testimony, to my mind, clearly establishes the fact that the working apparatus was not put into the Evanston works until about the first of May, 1884, so that there was no public use until after that time, and, as the patent was applied for February 28, 1885, there had not then been two years' public use of the device. That Peeney had his device substantially idealized, and, to a certain extent, illustrated, by his model, may be true; and that his testimony is somewhat confusing as to the time when he put it in operation is also apparent; but the other evidence from the contractor who putin these extra pipes, and from other sources, satisfies me that really there was but a very short use of this device prior to the time when the patent was applied for. The prior use set up at the water-works in Hyde Park and the town of Lake, also, was not a use of this apparatus, as I understand the testimony, but was an arrangement for flushing the inlet pipes by allowing the water to flow back to the lake by the force of its own gravity. The proof shows several instances where water-pipes have been flushed for the purpose of clearing them from obstructions by reversing the current by the gravity of the water; in other words, to allow the water to flow out backward to the source of supply, instead of driving it by the force of the pumps. In this case, however, the claim covers the combination of pumps with the other elements as· an essential part of the device, and it is clear that works where gravity only has been relied upon as the means for securing the flushing force of the return water or outflow of the water, are not covered or claimed by this patent. As the proof shows that the defendant's works use the device covered by the complainants' patent, the force pump is applied to expel the water through the suction-pipes so as to clear them of obstructions, there is a manifest infringement of the claim of this patent; and as the only proof tending to defeat the patent is. that of this two yej1rs' use, which I do not consider established, I must hold that the deft:ndant infringes, and the complainants are entitled to an accounting. .

588

FEDERAL REPORTER.

KIDn

v.

RANSOM

et al.

(Oircuit Oourt, No D. Illinoia. June 30,1888.)
1.

PATENTS FOR INVENTIONS-DECISION AS TO VALIDITY-STARE DECISIS.

Letters patent No. 333,862, granted .Januflry 5,1886, to Joshua Kidd, for a "carbureting attachment for gas fixtures, " having been held void for want of novelty, by a circuit court in another circuit, this court considers itself bound by its decision. .

2.

.

SAME-GAS MACHINE-INFRINGEMENT.

The claim in letters patent No. 247.925. granted October 4, 1881, to Joshua Kidd, for an "apparatus for enriching gas," of "the combination of a gasheating chamber provided with a series of channels or corrugations and a acirculation of gas through the heater" for the - disk or partition for purpose of thoroughly heatmg the gas so that it will readily vaporize a partionof the hydro-carbon in the carbureter, is not infringed by a similar shell· shaped device through which the gas is made to pass on its way to the cal'· bureter, but which disk contains no corrugations or series of channels.

In Equity. On bill for injunction. Offield & Towle, for complainant. Merrian & Whipple, for defendants.
BWDGETT, J. The bill in this case charges infringement of two patents, as follows: Paten.t No. 247,925, granted October 4, 1881, to Joshua Kidd, for "an improvement in apparatus for enriching gas;" and patent No. 333,862, granted January 5, 1886, to Joshua Kidd, for a attachment for gas fixtures," and seeks an injunction and an accounting by reason of said alleged infringements. No question is made as to complainant's title to these patents. Since this suit was comthe case of Kidd v. Horry, 33 Fed. Rep. 712, involving these two patents,h;as been decided in the United States circuit court for the Eastern district of Pennsylvania, and patent No. 333,862 was there held "bid for want of novelty; and this court, in obedience to what it considers the true policy .of the UJ;lited States·courts in reference to patent cases, considers itself bound by this decision, and no further attention will therefore be given to said patent. "Patent No. 247,925 is stated in the specifications to be for improvetrterits· upon the invention covered by the prior patents of Joshua Kidd arid James Livesey for an apparatus for gas. In regard to the patell(now in <:J.uestion the inventor says in his specifications: .':Pd?l" to my)nve.ntion. gas has. been enriched by mingling

thereWIth the heated vapor of naphthal me or other hyjIro-c<tl'bolls; and a variety of apparatus have beert devised for this purpose. such apparatus consist.. irig usually Of'&iCarbureting vessel, the hydro-carbon in which has been heated by: the directheaHrom non-carbureted gas flames, and by conducted heat from the vessel. ' In.a!lof these methods of carbl)l-' the w.hole Ulass of hydro-carbon in the vessel must be melted or degree of heat of the gas takes pliiCEi. . Tti1Ei.o'r,ject'of my invention' is to lessen the time required tien l'ly,oo,u-sing a current of hot gas: to impiIige dfrectly upon the sudaceS' of' the placed- in th:ewessel, 1Jhe, or. t

KIDD t1. RANSOM.

589

heating it, begins to vaporiie, and mixes' with the heated gas long before the entire mass is heated or liquefied." . . The patentee then proceeds to describe the apparatus covered by his patent, showing a broad metal disk located directly over two or more burners, so that the heat from such burners will impinge upon the disk, and cause it to be heated. The gas to be carbureted passes into this disk, and through a series of devious and connected passages, so that by the time it has' passed through the disk and into the pipe which leads into the carburetodthas become heated to suchan extent as to readily vaporize a portion of the hydro-carbon in the carburetor, and from the carburetor the gas is then conducted to the illuminating burners. Infringement is charged only as to the secoud claim of this patent, which is: "(2) The combination with the pipes, D, H,of the gas·heating chamber, E, arranged above the burners, and provided with a series of channels or corrugations and a disk or partition, L, for causing a circulation of gas through the beater, substantial1y as described." The defenses setup are-First, want of novelty; and, second, that felluant does not infringe. The defendant uses a disk located, like the complainant's, over the burners,through which the gas is made to pass on its way to the car" buretor; but the defendant's disk contains no corrugations or series of channels such as are described in the complainant's specifications, and it is insisted on the .part.of the defendant that there is no infringement of this second claim, by reason of the absence of these special channels or corrugations which are set forth in the complainant's specifications and second claim. In Kidd v. Harry, just referred to, 33 Fed. Rep. 712, that court, after quoting the claim, said: "This language is plain; nothing whatever is left for The claim is for the combination of the several parts of tbe peculiar heatt»: described. Of course it covers equivalents, but to say thata heater which does not combine 'the essential elements of this device is ari equivalent, simply because it communicates suflicient heat to fuse the hydro-carbon, is a mistake. The essential parts of the device are the ·chamber, provided with a series of corrugations, and a disk or partition, for causing a circulation of gas through' tbe chamber." This judicial construction of the complainant's patent makes rugations or channels in the disk or heating chamber an essential ele..! ment of the combination covered by the second claim; and I fully concur in this construction, because the patentee says; indescl'ibillghis vice: ' "The gas from the pipe passes over an extended surface before passing to the carbureting vessel, and, as a lDeans of prOViding suchextel1ded heating surface, I arrange above the burners a heater, E, consisting of a metal shell, that can be composed of two Il, e, ElRch having a. cllutl'al opening, F, formed through the same, and each being provided upon its inner face with a number of corrugations that form passages so arranged that the gas will flow through the same in order to be thoroughly heated. * * * '.rhe opening through the heater, which is formed by these openings, F, in the disks or halves of the heater, is divided into two parts Ly a thin metal iJlate or disk that also lies between the two halves of the shell, in order that

590.
the the:pipe, opening, 1f. in the upper part of the, heater, thence out to and around the of partition,F/, and back the passages in the lower portion of the heater to the pipe, H. These passages in the heater may be Q'series of annular cOfl'ugations with radialcorrngations connecting the same, or each half of the heater can be provided with a spiral corrugation, and numerous, radial passages. It will be observed that the intermediate ml'tal partition pl.tte does not close the outer channel adjacent to the meeting rims of the halves of the shell, so that the current of gas from pipe, D, will impinge upon and be split by the partition plate into divided curl'fmts flOWing outward through the corrugations of the upper half, passing around the periphery of the partition and then back through the corrugations of the lower half to the gas-pipe. H, that connects with the heater, and establishes portions of a pipe connection bet.....een the heater and the carbureting vessel. ': The claim now in question is for the combination with the pipes of the gas.heatingchamber, E, arranged above the burners, and provided with a series of channels or eorrugations,and a disk or partition. It will be thus seen that not only does the patentee lay great stress upon the special form of construction which he has shown in the specifiCDrtions, and which includes these corrugations, but he also claims as one of the elements ofthecombination,this "heating chamber" "provided with a series of channels or corrugations, and a disk or partition." It is probable, in the light of the proof in this record, that the patentee was mistaken as to the amount of heat which should be imparted to the gas before it entered the carbureter, in order to secure a succeseful working of his device; and hence he deemed these corrugations by which the gas would be. as he describes it; splIt by the partition plate into divided flowing outwardLy through corrugations in the upper half, and then passing around the. periphery of the partition, and then back through the corrugations of the lower half to the gas-pipe, essential to the operation of his device,and chose to cover that specific form of construction by his claim. As I have already stated, the defendant uses a shell-shaped device, substantially, so far as the exterior. form is con\lerned, like that d'escribed the complainant's patent, and divided by a thin metal partition into two chambers, so that the gas as it enters upon the upper part of the shell will be compelled to pass over the partition or diaphragm of the shell, and through .small. holes in the periphery, and then<',e along the lower .chamber of the in contact with the heated metal, and thereby,becoD;le heated; but the defendant uses no corrugationll. The Burt,aces of his heating chamber are entirely smooth, and there are no devious channels intended to split up or divide the curof gas .into attl:lnuated streams"and therepyenable it to become more readily heated. And, as the patentee has seen fit to make those \'Jorvugations an ellsentlal element of his C:aim, I am compelled to find that the defendant does not infringe.

SEIBERT CYLINDER OIL CO. t1. WILLIAM POWELL CO.

'591

'SEIBERT CYLINDER OIL CO. t1. WILLIAM POWELL CO.

(Circuit Court, 8. D. Ohio. May 23, 1888.),

P A!rENTS FOR INVENTIONS-ExpIRATION-ENGLISH P
'ST. U. S. § 4887.

REV.

Rev. St. U. S. § 4387, providing that "every patent granted for an invention which has been previously patented in a foreign countrl shall be so limited as to at the samE!, jJme with the foreign patent, does not apply to a patent issued subsequent to the filing of application and provisionalspeciftcation for an English patent on ilie same invention, btlt prior to its issuance. although such patent was, antedated as of the date of application, as the patentee's right therennder did not come into existence until the patent was sealed. '

In Equity. Suit for infringement of patent.' Peck &:' Rector and Edmund Wetmorej for complainant. George J. Murray, for respondent. SA'GE,1'. This suit is for infringement of patent No. 138,243, granted 29th of April, 1-873, to complainant's assignor, John Gates, fOl'an improvement in lubricators fOTsteam-engines. The bill was filed the 22d of November, 1887. The defendant pleads to the jurisdiction of this in equity that the invention described in complainant's patent was patented in 'England by William Burnett, assignee of said Gates, 24th of April, 1873, for the term of 14 years, which grant was determined before the commencement of this suit. From the stipulatioJa of facts on file it appears that Burnett filed his application and provisional specifi.cation 24tij April, 1873; that letters patent were sealed to him 24th of June, 1873,tmd dated April 24, 1873; that his complete specification and drawing were filed 21st October, 1S73; that the invention des()ribed and claimed therein is the same as that covered by the patent sued upon in this cause; and that said letters patent expired before the filing of complainant's bill. Under 15 & 16 Viet. c. 83, § 24, as construed by the court of exchequer in Saxby v. Hennett,L. R; 8 Exch. 210, the patent to Burnett took effect as upon the day of the date it bore; for by section 23 of the act, the old act of Hen. Vr.:, forbidding the antedating of patents, was in repealed; sectia!? 24 enacts that letters patent, where antedated, are to be of the same validity as if seaIed on the day they bore date. The court say, KELLY, C. B. "The lord chancellor is the judge of whether the grant shall'be made, and what d'ate it shall bear; but when once made, this section operates." The application for an English patent is made by filing either a provisional or complete specificalion. the fifth rule of October1, 1852, more than 21 days must intervene between the filingof and the seaI:ng of the patent. The regular course of procedure involves a reference of the application to the law officers, an exalllitiatiQJ;l. by them"a certificate. baCk, and then an advertisement from 10 to 20 days.. T4is is sllcpeede.s!"by a notice to proceed, and advertisement of21 days; then the warrant is is-