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Clarence D. Kerr, of New York City, for features already shown, which is scarcely an plaintiffs.

invention. Eugene A. Thompson, of Syracuse, N. Y. So it can be only because Surrell's furfor defendant.

nace is to be closed at the bottom that claim

1 can be valid over Shoemaker. Surrell at LEARNED HAND, District Judge. [1] several places in his disclosure speaks of his I take up first the validity of Surrell's pat

furnace as “down-draft”; but there was ent, 14,002. The first reference is Shoe- nothing new in that. It was, of course

, maker, 938,022, a part of the prior art be known from ancient times that, in order to fore Surrell's earliest date. This contains get a draft in one direction, you must close a boiler with pipes through it acting as a

those openings which will suck in air from back flue, a combustion chamber, a fire box, other directions; that is, if you would have two water drums, and water legs connecting

a down draft, you must close the openings the drums to the boiler proper. The com

at the bottom. Every one who tends a furbustion chamber is formed between the water

nace knows that. It is absurd to lay claim legs, the boiler, the two drums, and the

to an invention based upon any such feature. grate. The fire box is formed between the Surrell in his specifications assumed as much, side of the furnace, the water legs, a water

because he said nothing specific about the drum, and the grate. There are two feed closure of his ash pit door, E'. It is mendoors, two clinker doors, and two ash pit tioned only twice. First on page 2, lines doors, all at the end of the furnace.

45-48, he speaks of it as "normally excludI can see no distinction between this pat- ing air therefrom"; i. e., from the ash pit. ent and the disclosure of Surrell's 14,002, Again, on page 4, lines 99–103, he says that except the following: What I have called the door “should be closed to prevent a draft the water drums, one on each side, are called counter to the down draft.” By a late addiin the patent "headers,” and there is a sec

tion to some of his claims, he included an ond one at the upper end of the water legs. "air-tight” door; but obviously this is a The water legs do not lead directly into the relative phrase. Such doors are not literally boiler, but the headers forming an upper air-tight, and cannot be made so. There is water drum are tapped by a single connec

no conceivable need of more than a substantion (20 of Fig. 1). It was on this distinc- tial shutting off of counter drafts; the question that Surrell got his patent as against tion is necessarily one of degree. Shoemaker. The feed doors are not ranged

That being so, Shoemaker's furnace bealong the side of the fire box, as in Surrell's comes Surrell's as soon as the ash pit doors, boiler, and the coal must be trimmed with a 24, are closed. It makes not the least difpoker from the front.

ference that Shoemaker did not intend his Taking up claim 1 of Surrell, the only furnace to be so used, but to leave open the distinctions either in structure or in func- ash pit doors as well as the feed doors (page tion are the direct connection of the water 2, lines 42–47). Surrell cannot support his legs to the boiler already mentioned, and the patent upon one method of using Shoemaker. phrase "said furnace being closed at the bot- Even supposing that Shoemaker's ash pit tom, whereby a down draft through said fuel doors were not air-tight, in the sense, whatchamber is created.” The feed doors of ever it was, of Surrell's claims, it would Shoemaker are equally well suitable "for make no difference. If you were to close controlling the admission of air at the top of them and open the feed doors, you would said fuel combustion chamber" as are Sur- have every element of Surrell, except that rell's, though they do not allow separate the down draft might not be perfect. It parts of the coal bed to be damped as sug- seems to me beyond any just argument to gested (page 1, lines 89-95; page 3, lines urge that it would be an invention to perfect 4-13). I cannot agree with the Examiner the draft so created. The Examiner was that it is a patentable distinction to connect certainly right in citing Shoemaker as an anthe water legs directly with the boiler; it ticipation, though I cannot go along with was a mere detail of design. Suppose, for him in accepting the directness of the conexample, that instead of one connection, as nection as the basis of an invention. Thereshown in Fig. 1, Shoemaker had put in a fore I find claim 1 anticipated. pipe at the end of each of the upper head- The other claims in suit fall with this. ers; that would have been a direct connec- Claim 10 is the same, except for the shape tion for each, carrying each to the boiler, of the fire box, which is also shown in Shoeand yet it would be no more than to multiply maker's patent. Claim 21 reads pari passu

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