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7 F.(2d) 72

the flame has passed the U-bend near the bottom of the furnace. Obviously, where pulverized fuel is introduced at the top by a blast of air which supplements gravitation and accelerates the initial movement of the fuel downward, and where the fuel is to be combusted while in suspension, the furnace must be of large capacity to accommodate the extended movement of the fuel and evolved gases and to permit of the required combustion.

But the conception or construction of great capacity does not constitute invention. A furnace must correspond in size to the amount of fuel that is to be burned at a given time, and, as already noted, long before Ritts, the demands for larger ratings were met by enlarging the furnace capacity; the engineers ever keeping in mind, in fixing the space for burning, the obvious fact that complete combustion (the ever-present desideration) depended upon the amount of fuel and air that could be brought into ignition relation.

Furthermore, in appellees' structure there is no downward flow of cooled gases, deflected outwardly into gases moving up from the fuel bed, to be regenerated by the hotter gases. As noted, in appellees' structure the fuel is shot into the furnace at the top by a blast of air, ignition and partial combustion results, and the fuel falls downward, and the expansion of gases during this move ment causes their rapid movement on the U-bend, a radically different movement from the "natural upward movement" indicated in the Ritts patent. Again, the upward move ment in appellees' structure takes place in the rear of the furnace, not in the front as described in the Ritts patent.

In our judgment, the appellees' furnace does not respond structurally or functionally to Ritts' patent. The claims call for a "combustion chamber formed in part by the fire box." The Walker installation has no such element. While we recognize that in a broad sense a fire box and a combustion chamber may be considered as one and the same, yet in the Ritts patent these two things, which may be separate and have different functions, were purposely combined and inserted for the first time in the third set of claims, by amendment after the appeal was taken from the third rejection of the claims. Reading together the original and substituted specifications and the amendment referred to, we are compelled to conclude that Ritts did not treat them as one and the same, but that he was purposely ty

ing together these two things capable of having different functions into one element. True, the line of demarcation between the two is not defined, but, taking the whole specifications into consideration, we think that the part which contains the stationary bed of fuel was meant by him to be the "fire box," while the space above the fuel bed where combustion of the evolved gases naturally takes place, was his "combustion chamber."

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The Walker installation, being a pulverized fuel-burning furnace, as already noted, has no grate, and needs no specific means to support a fuel bed. The burning fuel is not intended to rest on anything, but always to be in suspension. The term "fire box," as a specific thing, is inapt when applied to such a furnace, but perfectly apt when lump fuel, necessarily stationary during ignition, is to be burned, and from which there is to be a "natural upward movement of the gases" as described by Ritts.

The claims also call for separate means "for introducing fuel into the fire box" and "for introducing air to promote combustion." The Walker installation, as noted, has but a single element designed to accomplish both of these functions. The air that brings the fuel into the furnace also promotes combustion. True, in addition to the element last referred to, this installation has a series of ports for the introduction of air. These are openings into an air space between the outer and inner walls of the furnace. Some of these are near the top, others near the bottom, and still others between 5 to 6 feet from the latter. However, these ports are not designed as aids for combustion, but to protect the inner fire brick walls of the furnace, and to maintain a lower temperature at the bottom of the furnace to prevent the fusing of the ash which accumulates there. Such functions are radically different from those which aid combustion, and which openings or ports from the evidence are more likely to be detrimental than beneficial in the matter of combustion.

[2] It is well-settled law that there is no infringement if one of the elements described by the patentee as essential is omitted without the substitution of an equivalent. Imperial Bottle Cap & Machinery Co. v. Crown Cork & Seal Co. (C. C. A. 4; July 7, 1905) 139 F. 312, 323, 71 C. C. A. 442; Levy v. Harris (C. C. Pa.; June 3, 1903) 124 F. 69, affirmed (C. C. A. 3; June 8, 1904) 130 F. 711, 65 C. C. A. 113; Evans v. Hall Printing Press Co. (C. C. A. 2;

April 13, 1915) 223 F. 539, 542, 139 C. C. A. 129; Underwood Typewriter Co. v. Royal Typewriter Co. (C. C. A. 2; May 12, 1915) 224 F. 477-479, 140 C. C. A. 163; McCas key Register Co. v. Mantz (C. C. A. 2; May 12, 1915) 224 F. 495, 496, 140 C. C. A. 203; Firestone Tire & Rubber Co. v. Seiberling (C. C. A. 6; Dec. 13, 1918) 257 F. 74, 78, 168 C. C A. 286; Russell Grader Mfg. Co. v. Zeig Mfg. Co. (C. C. A. 6; June 3, 1919) 259 F. 575-577, 171 C. C. A. 33.

As noted, the alleged infringing furnace does not possess "a combustion chamber formed in part by the fire box" nor separate "means for introducing air to promote combustion." The absence of the latter element alone, under the authorities, avoids infringement, as appellees' means, which perform the double function of introducing both fuel and air, cannot be held to be an equivalent to which Ritts is entitled.

The learned District Judge held that "the Bell patent, No. 1,184,302, issued May 23, 1916, on application filed August 4, 1911, is more like the structure of the defendants than the defendants' is like the structure of Ritts' patent." It is noted that the application for the Bell patent was pending in the Patent Office at the time Ritts claimed to have made his invention.

The Bell invention was for an improvement in steam generators in which pulverized coal was to be used as the fuel. The furnace is of equal cross-dimension from top to bottom, and the combustion chamber is of a height equal to the tubes. A curtain or ribbon of fine fuel, extending entirely across the furnace, is fed into the top of the furnace at a point remote from the boiler surfaces. The fuel is burned in suspension, and first moves downward; at or near the bottom it makes a U-bend and moves upwardly to the top of the combustion chamber and passes out. The tubes at the left of figure 1 are tubes which face into the furnace, with a baffle immediately back of them which seemingly satisfies the structural require ments of the Ritts patent, and the fuel is fed at a point remote from these tubes. One of the advantages claimed by Bell for his invention was the doing away with grates by burning the powdered fuel in suspension.

[3] As the bell patent was not issued until after Ritts filed his application for the patent in issue, the Bell patent was not in the

prior art (Johns-Pratt Co. v. E. H. Freeman Electric Co. [C. C. A. 3] 204 F. 288, affirming [D. C.] 201 F. 356, and cases cited by Judge Cross in that case at page 360); but, while this is true, and while the Bell patent cannot be used as an anticipation, it is pertinent evidence on the questions of priority of invention and infringement. A comparison of the Bell furnace with the Ritts claims suggests that the elements comprising the Bell structuré read literally on Ritts' claim 1 and equivalently on such of the elements of claim 3 as cannot be read literally thereon. However, as already stated, we do not think it necessary to determine the question of invention.

Functionally considered, the Bell patent deals directly with the method of burning powdered fuel for steam-making purposes. Ritts does not teach anything on this kind of burning. Bell teaches the burning of fuel in suspension, in a grateless furnace; the introduction of fuel at a point remote from the boiler surfaces; the feeding of fuel and air by a single means; the ignition and initial combustion of the fuel on the downward movement; the U-bend at or near the bottom, permitting of an upward movement of the gases-all while the fuel and gases are in the combustion chamber.

Structurally and functionally, the appellees' furnace follows Bell and not Ritts. The Bell patent could have been made the basis for interference proceedings with Ritts, if the primary examiner had futher considered Ritts' application, as he undoubtedly had the right to do, after the amendment offered by Ritts at the hearing of the appeal had been allowed. However, no such proceedings were had, probably because of the recommendation of the board of examiners-in-chief that Ritts' amendments offered on. appeal be allowed and the patent granted.

[4] What would have been the effect on the Ritts application if such proceedings had been instituted, or if the primary examiner had made further investigation after the amendments were allowed by the board of examiners-in-chief, of course, is purely speculative. However, it suffices to say that, on the record before us, we find that the Walker structure does not infringe Ritts' patent, and on that ground the judgment of the District Court is affirmed, with costs.

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1. Bankruptcy ~217 (2) Bankruptcy court is without jurisdiction to enjoin institution in state court of action of conversion against trustee.

Under Rev. St. § 720 (Comp. St. § 1242), the bankruptcy court is without jurisdiction to enjoin the institution in a state court of an action of conversion against the trustee in bankruptcy; jurisdiction of bankruptcy court under Bankruptcy Act, § 2, cl. 15 (Comp. St. § 9586), to protect itself in the possession of assets of bankrupt, in its actual custody and constructive possession, being limited to such cases as those in which it may be authorized by any law relating to proceedings in bankruptcy.

2. Pleading 287-Disclaimer made in open court could not be assailed as ineffectual merely because signed by counsel. Disclaimer made in open court could not be assailed as ineffectual, merely because signed by counsel of party disclaiming.

3. Bankruptcy 305-Fact of defendant's filing of disclaimer of right to possession, or of title to funds of goods, asserted to have been fraudulently transferred to her, precluded entry of decree as against her.

In bill by receiver of bankrupt estate in which plaintiff was subsequently substituted as trustee, instituted solely to determine defendant's title to and right of possession of goods attached, or of the funds derived from their sale, the allegation being that such goods were fraudulently transferred by bankrupt to defendant, fact that defendant disclaimed purpose to assert or claim either possession or title to the goods or of the funds precluded entry of decree against her, so that as to her the bill was correctly dismissed, but retained, for pur

pose of decree, that receiver turn over the funds in his possession as such to himself as trustee in bankruptcy, and for purpose of allowing receiver to settle his account.

Petition to Revise and Appeal from the District Court of the United States for the District of Massachusetts; James M. Morton, Judge.

In connection with the bankruptcy proceedings of Bertha Hablow, alleged bankrupt, two causes arose the first being a petition by petitioning creditors for a restraining order against Harry Schwartz and others, which was granted; and the second be ing a bill by Harry W. Meehan, receiver of bankrupt estate in which he was later substituted as trustee, against Esther Goldman Schwartz. From a decree rendered in the latter suit, plaintiff appeals, and in the first cause Harry Schwartz and others bring a petition to revise. Order in first cause re

In Case 1782:

George R. Farnum, of Boston, Mass., for petitioners.

Joseph B. Jacobs, of Boston, Mass. (Jacobs & Jacobs, of Boston, Mass., on the brief), for respondents.

In Case 1850:

Joseph B. Jacobs, of Boston, Mass. (Jacobs & Jacobs, of Boston, Mass., on the brief), for appellant.

George R. Farnum, of Boston, Mass., for appellee.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

JOHNSON, Circuit Judge. These two cases were argued together, and, as they grow out of the same bankruptcy case, may be considered together. The following statement of facts found by the referee, to whom a petition to have Bertha Hablow, doing business under the name of E. Goldman, adjudicated a bankrupt, was referred, will serve to make clear the issues raised in each:

Bertha Hablow, the bankrupt, was married about 22 years ago to one Goldman, who was a tinsmith, but after marriage he and his wife opened a provision store in Malden, Mass. There was a daughter by this marriage named Esther Goldman, who became of age on May 15, 1924. After the death of Goldman, his widow married a man named Hablow, who deserted her soon after marriage. Mrs. Hablow and her daughter, Esther Goldman, continued the provision

business which she and her first husband had previously conducted. In 1921 the mother sold this business and a house in Malden owned by her, and with the proceeds started mother and daughter worked together in the a dry goods store in Dorchester, Mass. The store; the business was run under the name of E. Goldman; credit was established with several dry goods houses in Boston under this name; a bank account was opened under it and checks drawn over the signature of E. Goldman.

The mother held herself out as the proprietor of this business, and salesmen and credit men knew her only in connection with the purchase and sale of goods, and extended credits to her. Up to the fall of 1923 she paid her bills with reasonable promptness and established a fairly good credit.

In June, 1923, Esther Goldman was married to Harry Schwartz. A short time be

fore her marriage, her mother had decided to open another store to be managed by the daughter and Schwartz and a lease of a store in Fitchburg, Mass., was taken in the name of the daughter. In connection with purchasing goods for this store, the buying was principally done by Schwartz and the daughter; but, by their direction, credit was extended and goods were charged to the E. Goldman account, and all the parties from whom goods were bought were led to believe that these goods were bought for the same party who operated the Dorchester store.

The mother owned a house in Mattapan, Mass., which she sold to provide money for the Fitchburg venture, and went to board in Roxbury or Dorchester. The Fitchburg store was opened for business about the middle of July, 1923, and operated under the name of Fitchburg Dry Goods Shop.

On the day previous to her marriage with Schwartz, Esther Geldman filed a business certificate with the city clerk of Fitchburg, as required by the laws of Massachusetts, which was signed by her, and in which she stated that the business was to be conducted under the name of the Fitchburg Dry Goods Shop. The Dorchester store was looked after by the mother, and the Fitchburg store by her daughter and Schwartz.

In the fall of 1923 the E: Goldman account, with several large creditors, became in arrears, and they pressed for payment. After conferences between the alleged bankrupt and her son-in-law, Schwartz, upon one side, and several creditors from whom goods had been purchased for the Dorchester and Fitchburg stores upon the other, a meeting. of creditors was held in January, 1924, which was attended by the bankrupt and her son-in-law. An arrangement was then made with the creditors looking to a continuation of the business which, according to the inventory then taken, appeared to be solvent. With the consent of a committee of the creditors, the Dorchester store was closed, and the stock of merchandise therein was shipped to the Fitchburg store. In the latter part of February, 1924, a second meeting of creditors was called, and at this meeting an attorney representing the daughter appeared and stated that the business was and had always been operated by her, that she was a minor, and that he had been instructed by her to disaffirm her obligations to her creditors. A suggestion of a composition offer was made by him, which the creditors refused to consider.

found "that the alleged bankrupt, Bertha Hablow, was proprietor of the business, both at the Dorchester and Fitchburg stores; that the merchandise was bought by her, was charged to her account, and that she is the person obligated to pay the bills for such merchandise;" that, on March 20, 1924, the date of filing the involuntary petition against her, the fair value of the assets owned by her was less than the amount of her liabilities; that on or about February 26, 1924, she transferred all of the merchandise owned by her in connection with her dry goods business to her minor daughter, Esther Goldman, and that said transfer was made "for the purpose of concealing the same from her creditors and for the purpose of defrauding them"; that the said Esther Goldman Schwartz, with her husband, Harry Schwartz, had conspired with the bankrupt to assert the false and fictitious claim that the merchandise was the property of the daughter, and that this claim was made for the purpose of hindering, delaying, and defrauding the creditors of the bankrupt.

On June 2, 1924, Bertha Hablow was adjudicated a bankrupt. On February 29, 1924, certain creditors brought suits against the said Bertha Hablow, and attachments were made of the stock of merchandise in the Fitchburg store by Deputy Sheriff Charles H. Kenney. On March 20, 1924, these creditors, together with others who intervened, filed an involuntary petition in bankruptcy against Bertha Hablow, doing business under the name of E. Goldman. On May 28, 1924, several of these creditors received a letter from the attorney of Esther Goldman Schwartz in which suit was threatened "for damages caused to her business by your wrongful acts." The letter did not contain any statement in regard to what these alleged wrongful acts were; but it may be reasonably inferred that they were the attachments of the stock of goods in the Fitchburg store.

On May 29, 1924, a petition for a restraining order, supported by the affidavit of counsel, was filed by the petitioning creditors, in which an injunction was sought to restrain Esther Goldman Schwartz and Harry Schwartz, their attorneys, agents, and proxies "from instituting any suits against the attaching creditors, as well as against" Charles H. Kenney, the deputy sheriff who had made the attachments.

In the affidavit of counsel it was stated that said suits were threatened to be brought The referee has also reported that he "with the intention of harassing said credi

7 F.(2d) 79

tors and the administration of the bankrupt estate, and for the purpose of defeating the bankruptcy proceedings in order that said attaching creditors would release their attachments, and thereby the property be lost to the bankrupt estate." Upon this petition notice was ordered to the said Esther Goldman Schwartz and Harry Schwartz to appear in the bankruptcy court to show cause why the prayer of the petition should not be granted.

A restraining order was ordered to be issued. On June 12, 1924, a motion for the dissolution of this order was filed and after a full hearing was denied July 28, 1924.

[1] No. 1782 is a petition to revise the order of the District Court denying this motion. R. S. § 720 (Comp. St. § 1242), prohibits the granting by any court of the United States of an injunction to stay proceedings in any state court, "except in cases where such injunction may be authorized by any law relating to proceedings in bankruptcy." Under this section it is admitted that the bankruptcy court has jurisdiction to is sue a restraining order to prevent the possession of the assets of the bankrupt being taken from the receiver or trustee in bankruptcy or after filing of a petition being placed beyond their reach, so that an equal distribution of the same among the creditors cannot be had. Actions, therefore, which interfere with the possession of the assets of the bankrupt by the Bankruptcy Court, may be enjoined.

Section 2, cl. 15, of the Bankruptcy Act (Comp. St. § 9586), so far as material, is as follows:

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Under this act the bankruptcy court has jurisdiction to protect itself in the possession of the assets of the bankrupt, not only in its actual custody, but of those in its constructive possession. Orinoco Iron Co. v. Metzel, 230 F. 40, 144 C. C. A. 338. But this jurisdiction is limited to such cases as those in which it "may be authorized by any law relating to proceedings in bankruptcy." It has therefore been held that an action of trover may be maintained in a state court 7 F. (2d)-6

against the trustee in bankruptcy or marshal. In re Russell et al., 101 F. 248, 41 C. C. A. 323; In re Kanter & Cohen, 121 F. 984, 58 C. C. A. 260; In re Spitzer et al., 130 F. 879, 66 C. C. A. 35; In re Mertens & Co., 147 F. 177, 77 C. C. A. 473. See, also, In re Interocean Transportation Co. (D. C.) 232 F. 408; Eyster v. Gaff, 91 U. S. 521, 23 L. Ed. 403; Leroux v. Hudson, 109 U. S. 468, 3 S. Ct. 309, 27 L. Ed. 1000; Herbert v. Crawford, 228 U. S. 204, 210, 33 S. Ct. 484, 57 L. Ed. 800.

The restraining order which was issued in this case did not enjoin the petitioners from bringing any possessory action, but from instituting any suits against the attaching creditors and the deputy sheriff who made the attachments. The suits with which the attaching creditors had been threatened were for damages sustained by one of the petitioners by reason of their wrongful acts, and it is clear that an action for conversion was contemplated. The bankruptcy court is without jurisdiction to enjoin the institution of such a suit in a state court.

No. 1850 is an appeal from a decree of the District Court upon a bill of complaint of Harry W. Meehan, as Trustee in Bankruptcy of the Estate of Bertha Hablow, v. Esther Goldman, Defendant. This bill was filed upon June 10, 1924, and was originally brought by Harry W. Meehan as receiver in bankruptcy for the said Bertha Hablow; but, by order of court, after his appointment as trustee, he was substituted as such in the original bill.

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The bill, after alleging the adjudication of Bertha Hablow as a bankrupt, the plaintiff's appointment as receiver and the conduct of business by the bankrupt at the two stores at Dorchester and Fitchburg, set out in the foregoing statement of facts, in substance, alleged that the said Bertha Hablow transferred the stock of merchandise in both stores to the defendant, at that time a minor; that the transfer was made for the purpose of hindering, delaying, and defrauding the creditors of said Bertha Hablow, of which the defendant had knowledge; that the defendant conspired with the said Bertha Hablow to accomplish this purpose; that the stock of merchandise was then in possession of Deputy Sheriff Charles H. Kenney by virtue of attachment of it made in suits against the said Bertha; that the said attaching creditors and the said Kenney were anxious and desirous of turning the possession of said property over to the court to be sold and the proceeds held

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