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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. for defendant.

LEARNED HAND, District Judge. [1] I take up first the validity of Surrell's patent, 14,002. The first reference is Shoemaker, 938,022, a part of the prior art before Surrell's earliest date. This contains a boiler with pipes through it acting as a back flue, a combustion chamber, a fire box, two water drums, and water legs connecting the drums to the boiler proper. The combustion chamber is formed between the water legs, the boiler, the two drums, and the grate. The fire box is formed between the side of the furnace, the water legs, a water drum, and the grate. There are two feed doors, two clinker doors, and two ash pit doors, all at the end of the furnace.

I can see no distinction between this patent and the disclosure of Surrell's 14,002, except the following: What I have called the water drums, one on each side, are called in the patent "headers," and there is a second one at the upper end of the water legs. The water legs do not lead directly into the boiler, but the headers forming an upper water drum are tapped by a single connection (20 of Fig. 1). It was on this distinction that Surrell got his patent as against Shoemaker. The feed doors are not ranged along the side of the fire box, as in Surrell's boiler, and the coal must be trimmed with a poker from the front.

Taking up claim 1 of Surrell, the only distinctions either in structure or in function are the direct connection of the water legs to the boiler already mentioned, and the phrase "said furnace being closed at the bottom, whereby a down draft through said fuel chamber is created." The feed doors of Shoemaker are equally well suitable "for controlling the admission of air at the top of said fuel combustion chamber" as are Surrell's, though they do not allow separate parts of the coal bed to be damped as suggested (page 1, lines 89-95; page 3, lines 4-13). I cannot agree with the Examiner that it is a patentable distinction to connect the water legs directly with the boiler; it was a mere detail of design. Suppose, for example, that instead of one connection, as shown in Fig. 1, Shoemaker had put in a pipe at the end of each of the upper headers; that would have been a direct connection for each, carrying each to the boiler, and yet it would be no more than to multiply

So it can be only because Surrell's furnace is to be closed at the bottom that claim 1 can be valid over Shoemaker. Surrell at several places in his disclosure speaks of his furnace as "down-draft"; but there was It was, of course, nothing new in that. known from ancient times that, in order to get a draft in one direction, you must close those openings which will suck in air from other directions; that is, if you would have a down draft, you must close the openings at the bottom. Every one who tends a furnace knows that. It is absurd to lay claim to an invention based upon any such feature. Surrell in his specifications assumed as much, because he said nothing specific about the closure of his ash pit door, E'. It is mentioned only twice. First on page 2, lines 45-48, he speaks of it as "normally excluding air therefrom"; i. e., from the ash pit. Again, on page 4, lines 99-103, he says that the door "should be closed to prevent a draft counter to the down draft." By a late addition to some of his claims, he included an "air-tight" door; but obviously this is a relative phrase. Such doors are not literally air-tight, and cannot be made so.

There is no conceivable need of more than a substantial shutting off of counter drafts; the question is necessarily one of degree.

That being so, Shoemaker's furnace becomes Surrell's as soon as the ash pit doors, 24, are closed. It makes not the least difference that Shoemaker did not intend his

furnace to be so used, but to leave open the ash pit doors as well as the feed doors (page 2, lines 42-47). Surrell cannot support his patent upon one method of using Shoemaker. Even supposing that Shoemaker's ash pit doors were not air-tight, in the sense, whatever it was, of Surrell's claims, it would make no difference. If you were to close them and open the feed doors, you would have every element of Surrell, except that the down draft might not be perfect. It seems to me beyond any just argument to urge that it would be an invention to perfect the draft so created. The Examiner was certainly right in citing Shoemaker as an anticipation, though I cannot go along with him in accepting the directness of the connection as the basis of an invention. Therefore I find claim 1 anticipated.

The other claims in suit fall with this. Claim 10 is the same, except for the shape of the fire box, which is also shown in Shoemaker's patent. Claim 21 reads pari passu

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