FEDERAL

v<». 63.

tllerJtUvL fij.Yov. of,Wery it very effectuall.:Y ,qepL'ives tbei¢itiZftnsrof other states ,of. valuable im· citizens enjoy. . '. . . '. ' , I tl;lJ.nk the priaoner must be disoharged. Let an Q:l'll@,Ue that effect.
OONSOLtriATED VAPOR-STOVE CO: v. ELLWOOD GAS';'STOVE & , STAMPI<NGOO. i Court,W... . , : Pennsylvll-nill. September 17, 1894.) D. , ," -...., . . ... . I
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O:F.

No. 8.

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STovEs; .'

'The patent:, No. 235,600, for a gasoline stove, if valid, 'is stiietly;'limited by 'the' terms of its . specifications, and by the prior art, to a'stove having, a bumer plate with the v.aporizing ·cha):Qbel'llpr,ojecting therefrom, and"ponnected by the under side thereof, and is not infringe" by 1\ iStqve'luwliich fhefixing chamber Is located on the under side of the bUl'11er plate. . i,

This' wa., the alleged of a patent. 'GeorgeH. ,Christy and"Royt & Dustin, for complainant. 'John R.' Bennett, Harold Binney, and Lyon, McKee & .Sanderson, for defendant. ' The Consolidated Vapor-Stove; patent), file this bill against the Ellwood Gas-Stove 81; Stamping Company of Ellwood, Pa., for i"frip,gement in the. manufacture of gasoline stoves of letterspateP,tNo. 235,!W,O, issued December 14, 1880, to Charles a;nd Joseph The answer denies patentability and infringement The device described in the Whittingham patent is,in the partlJ needfpl to now consider,describedas follows: From elevated oHJount.a pfpe leads to one of two chambered ears or opposite a burner plate, and connected by a ,conduit ;8,cross the lower side and at one side of the central tube .of said From the second chamber depends a pipe having a sQcket,in which a valve stem is screwed for controlling: a ,Jet orifice, wl;lich is located directly under, and a ejllort the, central tube. SUrlDountip,g,the plate is a burner cap,' pf<?,videdwith two rows of jet holes, the lower one being just fl,pqvetpe uppernsurface of the After the burner is initiall.}"; !started,""Tthe mode .Qf doing whiehis not material to the present inquiry,-':"'its workings are as follows: The upper !mrface of thf\ cqambers being highly. heated by of the dam,es row ci(jet holes and by cop,ductlOn th.f()PS'll the heater plate, the OIl passes to the first or whe,re'it is vapori;zed. This vapor then passes the4;:op,duit, whereit is superheated, and into the second or "hing" chaml;ler, where it 'ts .still further superheated, and becomes "fixed," or a sort' of fixed gas. It then pasl:les through to the jet orifice, and spurts il}to' the ceritral tube, carr;ying with it a supply
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DistrictJudge.

CONSOLIDATED VAPOR-BTOVll: CO: V.EI,LWOOD GAS-STOVE & S. CO.

699

-of airnp to the burner cap, and passes out the rows of holes, where combustion takes place. The flames from the lower row serve the double purpose offurnishing heat for cooking, a vessel being placed above the burner cap, and of vaporizing the oil and fixing the gas by means of the chambered projections and" the connecting conduit. The only claim· in question is the first, which' is for"The circular plate, B, having the chambered ptojections, C;D, and connecting conduit,E, and with the central· tube, F, surmounted by the perforated cap, S, In combination with the vertical tube. A, and angular pipe, G, H, and socket, I, provided with orifice, K, controlled by the .T, as shown and described, and for the purpose specified." .

At the date of the patent the "angular pipe, the vertical feed tube, with its socket, orifice. and controlling valve," were old, and were used in.. connection with a vertical commingling tube. As touch· ingthe chambered projections, the specification says:
"Surmounting the plate, B, is a perforated cap, S. The fiamesfromthe lower row of perforations supply heat to tl:\e upper surfaces of the chambered projecti!>ns, C andD. These two points are where the generation of vapor ,takes place, and is therefore perfect, being' the hottest place, and with· -out detracting. from the heat of the burner for the other uses to which it is designed:" .

And to distinguish it from KelPs patent, to which reference had been made, the patentees added:
"We are aware that a rectangular chamber located between the two jets of flames from the perforated cap has been used, and that said chamber has been conneCted with an induction oil pipe and an eduction vapor pipe; but this has detracted materially from the efficiency of the burner, because of its interference with the flames. 'This objection is entirely overcome by the use of the.chambered projections at the side of the perforated combustion cap, and just below the level of the lower row of flame jets."

The. departure from former methods will thus be seen in so locat.lng the flame which was used for vaporizing and fixing that its efficiency for cooking purposes was not diminished, and this result the patentee secured l.>y placing the chambers where they were im· pinged from above by flames, viz. at the two points "where the generation of vapor takes place, and is therefore perfect, being the hottest place, and without detracting from the heat of the burner for the other uses to which it is designed." That is plainly shown by a detail study of the patent. 'l'he claim specifies "the chambered projections, C, D," "as shown and described," and "for the purpose specified." "As shown and described," in the specifications and drawings, they extend laterally from, and on the plane of, the heater pl,ate. They are described as "hollow ears," or "projections on opposite sides." While the term "projections" may apply indifferently to either a downward or lateral one, the term "hollow ear" is limited to a lateral connection. Webster defines an "ear," in a mechanical sense, as "a projecting part ftom the side of anything." Then, too, the word "projection" is qualified by the limitation, "on opposite sides," and, to further emphasize it, the "ears," or "projections" are described as "connected by a conduit across the under side of said plate," and "across" ,does not mean half or three-quarter
way, but quite over the whole width of the heater plate, all of which is shown in the illustrated drawing. That the location shown and

700

FEDERAL REPORTER,

vol. 63.

was and functional, and not ip.{liffer,ent, f;J,10Dl lithe purpose fspecified." In..this respec1;. the specIficatIOn IS ,'..Thetwo p,oints are claimed to be where "the generation of "the hottest place," perfect," detracting from the, Jleat ?f the burner for. the. uses." 'rhis language Qannot beexplamed away, by saymg It IS a ofthe best mode in w:hich the to apply theil1 pmnciple. ',lit .is more than that; i;t isa description of the essential and ,functional elements necessary to the application of theirptirtciple, and is, rather "a cpmpliance' wiihthe statutory requirement to particularly poiilt out and distinctly. claim the part, improvem4:mt; 'orcorilbination which they claim as their invention or discoVellY. " . .ButWmuch broader construction Of the claitnis'contended for. ,. Complainant's expert testifies.that:
"The M'hole gist of the Whittingham invention, as' set forth in the first claim of!the patent at issue,is thecasti'ng of thed6wnwardlyprojecting chambers,. C, D, and the conduit,'E, integral with the ,heater plate, and so locating and directing them that they can be formed"economicillly without the use, of .coring, and be within· the best, or practically the best, position to get the e:trect of the waste heat of the burner."

It is contended that the chtmibered projections in the claim are downward projections, and ,downward projections only; that they need not project sideways to fulfill the object of the inventor; that the only in these downwaJ.7dly projecting cham· bers, "bufiq the way they are located on the plate, forming the base of the burner cap,so as at the same time they can be economically formedin'tegral with that cap, and at one and the same time, and for this purpose they must necessarily project downwardly, in order that they may be cast without coring;" that by this method of cast· ing theya'l'oid particles of sand sticking to the casting wash out from the flow of gas and clog the jet orifice. Such a reading of the clause is more ingenious than sound. As opposed to the construction now ma,de by the expert, we have the significant silence of the patent on these points. Indeed, if the gist of the invention was what is now alleged, the patentees were signally successful in not discloSing it Nor is such a construction proper in view of the prior art, for to so construe it is to work its destruction. The Whit· tinghamswere not pioneers in the field, nor their invention of a primary character. Numerous patents are cited in anticipation, a large number of, which were urged as such on argument, but for present purposes it suffices us to discuss but two, viz. KelPs, No. 231,674, August 31, 1880, and Prentiss's reissue, No. 7,636, dated Apri1.24, ,1877. The Prentiss .patent shows a vaporizing chamber at the 'side of the heater. Thongh it is claimed to be heated by direct ilnpingement of the flame, we are inclined to the view that it is by conduction. From it a conduit leads along the lower side of the Mater plate to a fixing chamber located on said lower side, and heated by conduction. Both chambers are on the same side of the central tube. The specification states:
"Surmounting the central tube, and beneath the cone [burner top], is a plate, upon which the flame from the lower row of perforations in said

CONSOLIDATED VAPOR-STOVE CO. t1. ELLWOOD GAS-STOVE

&;

8. CO.

701

cone impinges. This plate is denominated a 'heater plate,' and serves to con· duct heat to the generating chamber and surrounding parts of the burner, thereby facll1tating the conversion of the oil or fluid into gas."

While the device differs from the Whittingham patent, the prO" cess of vaporizing and fixing by two chambers is the same. The fixing chamber, located on the lower side of the heater plate, and heated by conduction, is identical with that of the respondent's device, as we shall see, save that it is on the same side of the central tube with the vaporizing chamber. As far as function goes, the loca· tions are substantially identical, and it clearly anticipates the fixing chamber of the Whittingham device, should that patent have the broad construction contended for. In Kell's patent an induction pipe leads to, and an eduction one from, a central gas generator, which is formed by four conduits at right angles with each other. Above and below the generator was a row of burner jets, so located that the flames from the two rows impinged on them respectively from above and beneath for vaporization purposes. Upper'and lower rows were necessary to vaporize the heavier grades of hydrocarbon for which the burner was designed, but it is admitted, if the lighted grades were used, the lower row could be dispensed with, and the device operated by simply enlarging the upper row of jet holes. The chamber and conduit connections of this device may! be cast integral, and coring dispensed with. The prior art being as above, it is clear the advance set forth in the Whittingham patent was not great. Whether it involved patentability we do not feel called upon to decide. It is sufficient for present purposes to pass upon the question of infringement only. The respondent's device has a heating chamber identical with that of the Whittingham patent, but the fixing chamber does not project laterally from the opposite side of the heater plate. It is located on the lower side of that plate, within the periphery of the flamejet row. The connecting conduit does not lead across the heater plate, but part way only. Consequently the flames from the lower jet row do not impinge on it, but it is heated by conduction through the heater plate. Giving the Whittingham claim what we regard as its reasonable and proper construction, it is clear it is not infringed by this device. The bill must therefore be dismissed at complainant's cost. Our attention has been called to the case of the present complain. ant against the National Vapor-Stove & Manufacturing Company, where the present patent was sustained by the circuit court, for the northern district of Ohio, eastern division. 63 Fed. 1000. The facts now before us, and the issues to be passed upon, are wholly different from those in that case, and for that reason the present case must be decided without reference to the conclusion there reached upon different proofs. Let a decree be drawn dismissing the bill, with costs. AOHESON, Oirouit Judge, concurs.

I'EDERALREPoRTER,

tol. 63.

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31" 'f ' patent No. 297,139fl,. for' a pin for holding illsulators support· ctr:l.c light Wires, Whicll.'.C9P.,.SiS. ts ·ofa combination Of tpe .pin proper, .. .. ... of iron ,or steel, With an enlarged head of lead or other sMt metal molded , and firmly secured by'first notching the pin end,' is void for want of c 1hventlon. ' : ',i: '
PINs.

KLEIN". (;ITY OF SEA',rTLE. Court, D. N. D.,

2;

<l.efense of p1-"ior use:sho,uld be pleaded, notice sh'ould be given specifying when, where, and by whom the ,article was made.

USE,

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ThhrwB:s a suit by John M. Klein, against the city: "of Seattle for of a patent. ,.. A.., for, plaintiff. : " A. Steele; for: defendant. Judge (oraUy). This is' an action brought the city to recover damages for, infringepateirt, No. to the plaintiff for an in, .4olding insulators supporting electric wIres. What is claimed:by the and to be considered as .p.mtected 1;lythe is ,3. pin ofJron or steel, of suitable size aJ:ld eJillarged of lead, 0.1,' any soft , uPOll ,it,;wlth a ,fit. the lllinde of glass lllsulatQrs, WhICh with a spiral groove for screwing onto a sC,rew head. , The are cast uP()l1 the ends of pins by running molten lead into ll-J:I1.Qld while thee,nd;ofa, pin is heJd therein. , A .firm ullioll of th,e Jiad 'to the by notching the pin end, or making,),t rough with ,a. These pins are designed. to be in connection witll, glaas insulators in common use. No par'ticular<kin'd of insulatqr h, required, apd the insulat,or is not part cQmbination wMch the plaintiff claims as his invention. The kind of pins most commonly used are wooden pins with a thread on the end to ;hold the ,,illlmlator; but w90den pills, are objectionable because tJ;LeY of sufficient strength without being of a size that unfits them for use in many places. For. instance, they cannot be set intQ upon telegraph and telephone poles 'without requiring either;;veJ;Y .arge arms, or making the arms, in ,common use too 'm all places where tb,e wire makes an angle, a wooden pin must'Qe of considerable thickness to be strong enough tQ'al/.pport the wlre and bear the strain that is necessary. Iron pill$ 'Yere in .use:f9r .such purgoses a long. tiIlle before the plaintiff in this case,cl$ns to ha:ve .conceived the idea of this :invention" .. l:\nd, ,in use th elll in connectioill' with glass insulators, of course some material had to be used to fill the cavity of the insulator, and accordingly a filling of wood, of canvas coated with white lead, diffet.'eutJi:inds of cement were used. Cement in a plastic state was run into the cavity in which the iron pins were set, and exactly the same method of making the iron pins available was in use before this invention, except by