of Twitchell is the idea of momentarily and quickly applying it to the tire valve and establishing fluid conditions; the particular kind of gauging mechanism selected among the many alternative or equivalent forms is immaterial. [6] In my opinion the claims of the patent in suit sued upon are valid, and the patent in suit is a pioneer patent entitled to a wide range of equivalents. This opinion is supported by the decisions of the courts in former actions in each of which the patent has been sustained. In Twitchell v. Northam Auto Pressure Gauge Co. (no opinion filed), the defendant claimed that the gauge in question in that suit, known as the Sandham gauge, had a housing which was not open at one end, or, if it was, did not have at such end a seat for fitting against the air valve, or an anvil for unseating it. These parts are turned at a right angle in between the ends of the Sandham gauge. The court, after a trial, held all four claims of the patent in suit valid and infringed. In Twitchell v. Rudolph & West Co. (Supreme Court, District of Columbia), the defendant showed that the housing of the gauge was closed at its inner end, with the exception of a small passage. The press-on foot with valve opener were at right angles to the gauge, and opposite to them was a pump; the gasket used in the press-on foot being capable of holding the gauge while pumping is going on. The court, after a trial, held claims 1, 2, and 3 of the patent in suit valid and infringed. In A. Schrader's Son, Inc., v. E. Edelmann & Co. the defendant claimed that this gauge avoided the patent because it had no "spring-held gauge bar" as set forth in the claim. For the first time in any action on the patent in suit we find in the Edelmann gauge the added improvement of a "holdup" indicator, which was not the invention of Edelmann. The court granted a motion for a preliminary injunction, and thereafter a decree was entered on consent. In A. Schrader's Son, Inc., v. Protex Manufacturing Co., 254 F. 438, the defendant elaimed that it did not have a gauge bar at all but had a gauge sleeve; that the gauge sleeve was not spring-held; that there was no opening in the outer end of the casing; and that, even if there was an opening, the gauge sleeve did not extend through it. The court granted a preliminary injunction, and on the trial held the patent valid and infringed. In A. Schrader's Son, Inc., v. Protex Tire Gauge Co. (no opinion filed), the defendant, after the preliminary injunction had issued in said action of A. Schrader's Son, Inc., v. Protex Manufacturing Co., 254 F. 438, put out a new gauge known as the Rex gauge, and claimed it had no gauge bar at all. The court granted a motion for preliminary injunction. Not only have the courts uniformly upheld the patent in suit, but there has also been evidenced general acquiescence in its validity, first by the plaintiff in this suit, who when, action was brought against it for infringement purchased the patent, and also by Prest-O-Lite Company and others who have consented to decrees.' The commercial success of the patent in suit has been very great, and the small number of infringers shows that its validity has been very generally recognized. Twitchell sold 175,000 of the gauges without any hold-up feature, his sales in all were 200,000 in about two years, from which it appears that there must have been a great need for such a gauge in order for a new article to meet with such success within that time, considering the much smaller number of automobiles then in use. As I have hereinbefore held the patent in suit to be valid and a pioneer patent, and therefore entitled to a wide range of equivalents, I will now consider the question of infringement. Claim 2 of the patent in suit comprises the following elements: (1) A housing open at one end; (2) a seat at such end for fitting against the air valve casing of a pneumatic tire; (3) means also at such end for unseating such air valve; (4) a spring-held gauge bar within said housing projecting through an opening in the outer end thereof; (5) & piston head at the inner end of the gauge bar. The only apparent material differences between the said claims are as follows: Claim 1 provides for a housing adapted to fit over and inclose the casing of an air valve. Claim 2 provides for a seat to fit against the air valve casing. Claim 3 provides for a seat with a central opening and a fixed part extending through said opening. The defendant's structure is shown in the drawing which is Plaintiff's Exhibit 27, and the numbers of the several elements shown on said drawing will be used in describing the same. The housing 1 is open at its upper end and the gauge registers by passing out through the open end of the housing, it also has an opening in the lower end through a round rubber cushion 2, and projecting down through said cushion a valve pusher or open 8 F.(2d) 999 er 3 which opens the check valve in the tire. The flexible rubber tube 10, called by defendant a capsule, reaches up through the spring. The periphery of the rubber tube 11 is clamped at the bottom between the washer 8 and the rubber cushion 2. In the defendant's structure the spring is a tension spring not a compression spring, but the two forms of springs are commonplace alternatives one for the other. The upper end of the rubber tube 10 rests against part 6, and over that part 6, which is a cylindrical form, and secured to the upper end of the spring, is placed the gauge bar. The gauge bar in the defendant's structure is cylindrical instead of flat, and, instead of going down between the turns of the spring, that is, passing down through the center of the spring, as in the patent in suit, it passes down into the housing outside of the spring where the gauge bar and the spring and the housing overlap to give a compact short construction. The defendant's structure has the same characteristics of adaptability for temporary reading of the pressure as that of the patent in suit. It is nonattachable, and is put in place and a tight joint made by hand pressure. It is compact, of rugged construction, easily carried in the operator's pocket, and, if put in a tool chest, will stand the rough usage it will there receive. Defendant contends that the rubber capsule 10 and spring employed in the defendant's article are not and cannot be said to be in any sense the mechanical equivalent of the piston designated as 6 in the patent in suit, and, further, that the defendant's device differs from the patent in suit in that the defendant's indicator element is not attached to anything that could be characterized as a piston, and when it is forced out of its casing by frictional means it is retained in a definite position to indicate the degree of pressure which has been exerted upon the capsule, and when the air pressure is relieved the spring operates to collapse the capsule, and does not operate to restore the indicator bar to its primary position. As I understand it, the defense on lack of infringement is that the defendant's device, the Wein gauge, has no spring-held gauge bar and no piston head at the inner end of the gauge bar. The existence of a spring-held gauge bar in the defendant's structure, the Wein gauge, seems to be beyond question and not to be denied in the face of the Protex and Edelmann decisions, supra, because in both of them, as well as in the Rex, the gauge bar has been determined to be spring-held in the sense covered by the patent, and this without regard to whether it was flat or tubular. The defendant contends that the gauge bar is the calibrated portion in both the patent in suit and defendant's device, and that it is not spring-held in the defendant's device and plaintiff's commercial structure, because when the pressure of the air is relieved the calibrated portion does not fall to its zero position but remains up. This contention is erroneous, for the reason that during the operation the indicator cannot move until the tension of the spring is overcome, and defendant's real or primary gauge bar, as distinguished from its indicator, is literally spring-held in the same way as in plaintiff's patent in suit, and when relieved of the pressure of the air falls to zero. The causing of the extension to remain up is an added improvement but not the invention of the defendant, and, even if it was, the invention of a mere improvement would not relieve from infringement, when, as in the suit at bar, the improvement would be uesless without the patent in suit. It therefore seems clear to me that the defendant's device has a spring-held gauge bar, and therefore the defense of noninfringement is reduced to the claim of the defendant that its device, the Wein gauge, has no piston head at the inner end of the gauge bar. That the defendant's structure has a piston seems to be clearly shown by reference to United States patents No. 8,361 to Faber, No. 16,428 to Allen, and No. 599,682 to Burdick, cited by the defendant as part of the prior art, and the testimony of the experts, as the expert for the defendant said that he found a piston in the patent No. 599,682 to Burdick. Other forms of pistons are shown in the prior art cited by the defendant, but they do not require detailed consideration; it being sufficient to call attention to the forms shown in United States patents No. 39,114 to Brevoor and No. 190,790 to Snyder. The elastic piston and the sliding piston have both been known as pistons for many years, and have been used interchangeably, and effect the same result in substantially the same way. I can find no functional difference between the Burdick piston and the piston in defendant's structure, and Burdick in his patent calls the part 16 a piston and the part 15 a cap or head. The only structural difference is that the defendant's rubber tube is closed at the top to avoid leakage where the tube contacts with the piston. All of the claims 1, 2, and 3 of the patent in suit call for "a piston head at its inner end"; nowhere in said claims is there any mention of a sliding piston head. Of course the fluid exerts a lateral pressure which in the patent in suit is confined against movement by the cylinder wall, and in the defendant's structure by the sides of the rubber sleeve, but this pressure is negligible compared to the longitudinal pressure which is the effective pressure and moves the only thing which can be moved; that is, the piston head or pressure head. In the defendant's structure the piston head is the same as in Burdick, and is at the inner end of the gauge bar, and this is not altered by the fact that the gauge bar in the defendant's structure is extended so that its length is much greater than Burdick's. Quaker Shoe Company, bankrupt. On certificate of review of order of referee. Dismissed. Reber, Granger & Montgomery and J. Howard Reber, all of Philadelphia, Pa., for trustee. Furth, Singer & Bortin and David Bortin, all of Philadelphia, Pa., for bankrupt. THOMPSON, District Judge. The order of the referee certified for review was brought before the court upon a certificate of the referee. It appears by the record certified that the bankrupt did not file with the referee a petition for review in accordance with General Order XXVII. As the General Order is mandatory in requiring a petition of the party desiring a review, this court, in the absence of such a petition, has no authority to review the action of the referee. In re Russell (D. C.) 105 F. 501; In re Home Discount Co. (D. C.) 147 F. 538, 17 Am. Bankr. Rep. 168. The application for review of the order of the referee will therefore be dismissed. In my opinion the patent in suit reads literally on the defendant's structure, and there is no need to apply the doctrine of equivalents, but, even if I am in error on that point, the structure of the defendant would clearly be an infringement of the patent in suit because, although part of the gauge bar skirts down below the piston head, that does not detract from the essential and fundamental operation of the defendant's structure, because the courts have interpreted the gauge bar as any movable member, such as a sleeve or indicator, and the elastic pressure SAME v. GLOBE & RUTGERS FIRE INS. head of the defendant's structure is a wellknown and clearly understood alternative or equivalent for the sliding packed piston of the patent in suit. The defendant's structure infringes claims 1, 2, and 3 of the patent in suit. A decree may be entered in favor of the plaintiff as prayed for in the bill of complaint, with the usual order of reference. In re FINKELSTEIN. rev'd ad154.. 10 JACKSONVILLE OIL MILLS v. STUYVESANT INS. CO. et al. CO. et al. (District Court, W. D. Tennessee, W. D. February 23, 1925.) Nos. 2901, 2002. 1. Insurance 500-Policy held to entitle insured to $150 per day during period it was deprived of use and occupancy, regardless of profits which might have been made. Policy insuring against loss of use and occupancy of mill through fire for not exceeding $150 a day during prescribed period held a valued policy, entitling insured to $150 per day for such period as it should be deprived of use and occupancy, regardless of possibility of profits which might have been earned. (District Court, E. D. Pennsylvania. February 2. Insurance 146(3)—Ambiguities in policy Bankruptcy 11, 1925.) No. 7221. 228-District Court will not review order of referee on referee's certificate, in absence of petition by party desiring review. District Court will not review order of referee, on referee's certificate of review, in absence of petition for review by party desiring review, under General Order XXVII, such General Order being mandatory. In Bankruptcy. In the matter of Max Finkelstein, individually and trading as the 3 3 F.(2d) 1006 W. P. Metcalf, of Memphis, Tenn., for business of manufacturing the products of plaintiff. cotton seed and/or peanuts and/or vegetaHughes & Hughes, of Memphis, Tenn., ble seeds, situate at and/or near Jacksonfor defendants. ROSS, District Judge. Suit was brought by plaintiff in each of the above-styled cases against each defendant on an insurance policy issued by the defendants, respectively, commonly called a "use and occupancy" policy. The suits grew out of the destruction by fire of the same property insured by each of the defendants, and the suits were consolidated and heard together. Plaintiff is a corporation located at Jack sonville, Tex. Each defendant is a corporation, but neither was suable in the state of Texas, and inasmuch as each was doing business in the state of Tennessee, and represented by agents in this district, suit was brought in this jurisdiction. [1] Plaintiff was engaged in the business of buying cotton seed, from which it manufactured and sold cotton seed products; the products being cotton seed oil, cotton seed meal, cotton seed hulls, and the lint ginned from the seed, which product is referred to as linters. Each policy insured the plaintiff in the use and occupancy of its property, consisting of houses, machinery necessary to the manufacture of cotton seed products, storage warehouses, etc., for a period beginning with the 1st day of October, 1922, and including the 31st day of March, 1923; that is to say, plaintiff was insured against loss by reason of inability to enjoy the use and occupancy of the property through fire or any of the other causes mentioned in the policies, and the insurance was stated to be at a sum of not more than $150 per working day for such time as plaintiff might be deprived of the use and occupancy of the property within the prescribed period. ville, Texas. Privilege is hereby granted to use gasoline engines, it being understood that gasoline storage and feed to the engine is in accordance with the underwriters' specifications. "It is a condition of this contract that if the above-described buildings and machinery, or either of them, or any part thereof, shall be destroyed or damaged by fire or lightning, occurring during the term of this policy, so that the assured is entirely prevented from operating, this company shall be liable for not exceeding one hundred fifty dollars ($150.00) for each and every working day of any year between and including October 1st to March 31st from the date of said destruction or damage to the date when, with reasonable diligence, said building or buildings can be repaired or rebuilt, and/or the machinery thereof be repaired or replaced therein, as such property existed before the said destruction or damage. But if, as a result of said destruction or damage, the production capacity of the plant be only diminished, then shall the assured's loss per diem be estimated as that proportion of not exceeding $150 in which the assured's daily capacity is diminished for each and every working day of any year between and including the date above mentioned, from the date of said destruction or damage to the date when, with reasonable diligence, said building or buildings can be repaired or rebuilt and/or the machinery thereof be repaired or replaced therein, as such property existed before the said destruction or damage. "It is understood that no claim for loss shall be made under this policy because of cessation of operations of the within described premises between the dates of April 1st and September 30th for any cause what soever. A fire occurred on the 16th day of October, 1922, which virtually totally destroyed the main building and the principal por"It is understood that for the purpose of tion of plaintiff's property, so as to render it unfit for occupation and use as a manuthis insurance, all days are to be considered facturing plant for a period extending con- working days excepting Sundays, and that siderably beyond March 31, 1923, as shown this company's liability for loss and payby the undisputed proof in the case. The ment for days between and including the particular clauses in the policies in question dates above mentioned is not limited by the read as follows: expiration of this policy, but that this company is liable, in accordance with the conditions and stipulations above, for total or partial loss of use and occupancy for all working days between and including the dates above mentioned, providing said total or partial loss is caused by destruction or "Jacksonville Oil Mill. "Use and occupancy: Oil mills. "$23,400 on the use and occupancy (including fixed charges) of all of their buildings and machinery used or for use in their damage by fire or lightning occurring within tention that the insurance indemnified the the term of this policy." insured against the loss of earnings or profits: The contention of plaintiff is that it is entitled to recover ratably from the defendants a total amount of $150 per day for each working day from the date of the fire, on October 16, 1922, to the 1st day of April, 1923. The contention of defendant is that, if plaintiff is entitled to recover any amount, it is for only such sum as it can show its reasonable profits would have been for the period intervening between the date of the fire and April 1, 1923, so that the sum should not exceed $150 for each working day; in other words, that plaintiff is entitled to recover only on a profit basis. In Michael v. Prussian Nat. Ins. Co. (Ct. of Appeals of N. Y., April 18, 1902) 171 N. Y. 25, 63 N. E. 810, plaintiff brought suit on an insurance policy covering its clevator property, which policy contains the following provision: "It is a condition of this contract of insurance that if, by fire, during a continuance of this policy, the property, buildings, or machinery therein, or either of them, or any part thereof, shall be destroyed, or so damaged as to prevent the elevating and other handling of grain, this company shall be liable at the rate of $4.77 per day for each working day of such prevention; and in case the building or machinery, or any part thereof, are so damaged as to prevent the elevating or handling of the full daily average of grain, this company is to be liable per day for that proportion of $4.77 which the elevating or handling so prevented bears to the said daily average ability of said elevator one year previous to the fire, which, for the purposes of this insurance, shall be considered the average daily ability of the elevator, not exceeding the amount insured. Loss to be computed from the day of the occurrence of any fire to the time when the building could, with ordinary diligence and dispatch, be repaired or rebuilt and the machinery placed therein, and not to be limited by the day of expiration named in this policy." Defense was made to this policy on different grounds from that urged in the instant case, but in determining the matter the court held that the policy was a "valued" one, and that the total destruction of the property entitled the plaintiff to recover the fixed amount of $4.77 for each working day as to which plaintiff was deprived of the "use and occupancy" of the property. On page 813 of 63 N. E. (171 N. Y. 34) the court said, in considering the con "If the contract was intended as one of indemnity against the loss of earnings [or profits] derivable from the operation of the elevator plant, the words chosen were unfortunate, and in my opinion too vague. 'Use and occupancy,' as terms of insurance, may assume, within their general scope, the expectation of profits and earnings derivable from property; but the terms appear to have a broader significance as to the subject of insurance, and to apply to the status of the property, and to its continued availability to the owner for any purpose he may be able to devote it to. The defendant might have avoided all questions of construction, and have made plain the subject of its insurance, if it was the business of the plaintiff, or its earnings and profits, by the use of appropriate and unmistakable words. But such words occur nowhere. The defendant has chosen to make a contract of insurance which distinguishes its subject as something other than the buildings or machinery, and which can mean the earnings and profits only by resort to reasoning. The terms made use of have not the accepted significance contended for by the appellant, and any doubt or ambiguity should be resolved against it and in favor of the assured. Janneck v. Insurance Co., 162 N. Y. 574, 57 N. E. 182; Matthews v. Insurance Co., 154 N. Y. 456, 48 N. E. 751, 39 L. R. A. 433, 61 Am. St. Rep. 627. Insurance 'on use and occupancy' evidently relates to the business use which the property is capable of in its existing condition. If it is destroyed by fire, and its use becomes impossible, then during the period required for its reinstatement as property capable of use and occupation, the owner is to be compensated according to the terms of the policy. The more reasonable meaning of this contract, in my opinion, appears to be that it is a provision for indemnity to the owner of the elevator plant in the event that it should not continue in the same condition of availability to him, at a valuation agreed upon for every day required to reinstate it. The owner had an interest in its continued status as property capable of being used and occupied, and the defendant received its premium upon the basis of an agreement as to the estimated daily value to the assured of such a status." In Tanenbaum v. Freundlich (Sup. Ct. N. Y. App. Term, Jan. 1903) 39 Mise. Rep. 819, 81 N. Y. S. 292, 115 N. Y. St. |