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angles and held in place by bolts or rods extending diagonally from the corner into the mass of the concrete. Coignet, it is true, proposed to form the artificial stones in which the corner was protected in molds, from which the stones would be taken and carried to the place where they were to be used. Mr. Wainwright, on the other hand, builds up the stones in the very place and position in which they are used, so that they do not require to be moved, but remain where they set and harden. But the present litigation is not concerned with this aspect of the two inventions. The only matter now under consideration is the feature of the two patents which relates to the protection of the edges of artificial stone with a metal shield or guard of some shape. Clearly Coignet was the first to conceive the general idea of this invention. The only difference between his metal protector and that of Wainwright was that Coignet's metal protector was squareedged, and held in place by bolts or rods with expanded ends, and running diagonally from the corner into the concrete, while Wainwright's metal protector was convex, and was held in place by a continuous tongue extending into the concrete in the same direction as the bolts. Mr. Wainwright's first patent in 1890 shows, but does not claim any invention for, the convex surface of the corner metal protector. This feature of the bar was, therefore, not patentable in the second patent, that of 1898. Besides, the Landis patent, No. 431,898, issued July 8, 1890, shows a metallic edge-protecting bar, having a convex surface at the edge. The use of a galvanized iron bar, instead of a plain iron bar, was certainly not patentable. The use of a continuous expanding tongue to hold the metallic edge protector in place while the concrete is hardening, and to help hold it in place after the concrete has set, is shown in a patent issued to R. S. Griffin on April 16, 1872, for holding a corner head of wood on the edge of a body of plaster. In any case it does not seem to me that the substitution of a continuous tongue in place of the bolts and stays shown in Coignet's patent presents patentable novelty.

(3) Patent No. 727,233, issued May 5, 1903. Application filed March 8, 1900.

In this patent Mr. Wainwright claimed invention for the form of the corner bar and tongue. The only difference between the corner bar and tongue described in this patent and the corner bar and tongue described in the patent of 1898 is that the tongue in the 1903 patent is spread out or enlarged at the inner end. I can see no invention in this change of the form of the tongue. The function of the tongue being to help hold the corner bar tight to the curb, it was so obvious that this function would be better performed if the end of the tongue were enlarged that it would occur to any mechanic of the most ordinary capacity and skill to enlarge it. Nor would any mechanic, so enlarging the tongue, dream that he had thereby invented anything worth patenting

So far as concerns the metal protecting corner bar, all three of the patents taken out by Mr. Wainwright seem to me to be merely slight modifications of Coignet's construction. The only features in the Wainwright construction of the corner bar for which patentability could ever have been claimed-and the claim for them would have been of very doubtful validity—were the substitution of the convex corner bar for the square edged corner bar and the continuous tongue for the bolts and stays of the Coignet bar. But these features appeared for many years in Wainwright's patents before he attempted in the 1903 patent to patent them. It was then too late. They had become common property. In Coignet's patent the drawings exhibit the bolts enlarged at the end to hold them more firmly in the concrete. It was inevitable almost to adopt the same construction, when a continuous tongue was substituted for the separate bolts. The imbedded end of the tongue would be enlarged to make it more difficult to draw the tongue out of the concrete, just as the imbedded end of the bolt had been enlarged for precisely the same purpose. As regards the corner bar, my conclusion therefore is that none of the patents issued to Mr. Wainwright show invention or novelty, and that they are all void.

This conclusion necessarily results in the rejection of plaintiff's demand. I was strongly inclined to hold that the defendants were estopped from contesting the validity of the plaintiff's patents by reason of the fact that the defendants set up a patent which is nothing more than a copy, with immaterial variations, of the 1903 Wainwright patent. This patent of defendants is that issued to Soniat Du Fossat on November 22, 1904, under application filed on November 13, 1903. The Du Fossat patent was applied for more than six months after the issuance of Mr. Wainwright's last patent. Du Fossat's construction is so obviously copied from the last Wainwright patent that its nullity is beyond question. But can the defendants deny patentability in the Wainwright patent, when they claim patentability for an illegal imitation of that patent? I am strongly inclined to hold that they cannot. I would so hold if there were authority for thus deciding this controversy as between plaintiffs and defendant. On reflection, however, I have concluded that the evidence does not necessarily implicate the•defendant in fraud. They took advice of reputable patent lawyers as to their rights and seem to have acted in good faith. Mr. Mioton, who was instrumental in procuring the Du Fossat patent, says he never examined the Wainwright corner bar until he had filed application for the Du Fossat patent.

On the whole, I have concluded that the only judgment I can render is one based on the invalidity of the Wainwright patents. There must, then, be a decree in favor of defendants, rejecting plaintiff's demands.

BLAKE & KNOWLES STEAM PUMP WORKS v. WARREN STEAM

PUMP CO.

(Circuit Court, D. Massachusetts. August 2, 1907.)

No. 167.

1. PATENTS-INVENTION-NEW COMBINATION OF OLD ELEMENTS.

Where a patented structure, although a combination of old elements, is new, and capable of a use which is new and of special utility, and in such use constitutes an important advance in the art, it cannot be denied "The structure to which the subject-matter of these claims purports to appertain constitutes a vertical twin steam pump wherein buckets are contained in the pump cylinders, but are to subserve any of the uses of which they are capable. "This

patentability because other uses are also claimed for it, in which it is not a substantial advance on the prior art.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 38, Patents, $ 49.] 2. SAME-INFRINGEMENT-PUMPING ENGINE.

The Whiting & Wheeler patent, No. 526,913, for a pumping engine intended for use as an air pump for withdrawing the water and air from the condenser of a steam engine, was not anticipated and discloses patentable novelty and invention. The Hall & Gage patent, No. 522,938, for a combination which includes a special valve movement for use in connection with such pump, also held valid, and both patents held infringed.

In Equity.
Philipp, Sawyer, Rice & Kennedy, for complainant.
George L. Roberts & Bro., for defendant.

BROWN, District Judge. The bill charges infringement of two letters patent; the earlier in date of application being No. 526,913, granted October 2, 1894, for the invention of Whiting & Wheeler, and No. 522,938, granted July 10, 1894, for the invention of Hall & Gage. Both patents relate to pumping engines. It clearly appears from the specification of each patent that the devices claimed were intended for use as "air pumps” for withdrawing the water and air from the steam engine condenser, to maintain a partial vacuum in the condenser and exhaust piping of the engine. The efficiency of the complainant's pump for this purpose is well proved, and is not denied. The defense is based largely upon the fact that the pumps were also intended for use as water pumps, or as combined air and water pumps. I agree with the complainant's criticism of the defense, that it is based on a false position and incorrect interpretation of the patents in suit.

The defendant is obliged to concede that the exact combinations claimed in these patents are not anticipated in the prior art. Furthermore, it has not been able to deny complainant's proof that the pump embodying these features produces a novel and useful result, namely, the production of a higher vacuum than was produced by any of the prior combinations or devices.

The efficiency of complainant's pumps is shown by most convincing testimony, and by their adoption as air pumps on the United States vessels Minneapolis, Columbia, Indiana, Massachusetts, New York, and Brooklyn, and on the steamships Kaiser Wilhelm der Grosse, Hamburg, Princess Irene, Koenig Albert, Deutschland, New York, Philadelphia, etc., and in many electric lighting and traction plants.

The defense is most elaborate, but is so thoroughly permeated by a fallacious interpretation of the patents that the case may be most conveniently considered by disposing of this fundamental question at the outset. The defendant's brief states:

* is manifest from the language of the specification of the Whiting & Wheeler patent, which explicitly declares (page 1, lines 22–32; page 2, lines 17-28) that the two bucket pumps of the structure therein described and shown may be used either both for pumping air (meaning the mingled air and water coming from the steam condenser), or both for pumping water,

or one for pumping water and the other for pumping air; so that the subject-matter of neither of the claims of this patent, at least, can be characterized by any function which is not common to all these three modes of use."

A consideration of the logical and legal validity of this contention may obviate the necessity for considering in detail much of the defendant's argument. The defendant's brief concedes that what is claimed is a structure. It is also conceded that the same group of features has not been contained in previous devices. The exact structure is new, and, when used as an air pump, is so great an improvement on the air pumps of the prior art that it has largely displaced them and has gone into extensive use. The defendant, nevertheless, argues that the device of each patent is not novel in the sense of the patent law, nor in a substantial sense, because, considered as a water pump, or as pumping water in one pump cylinder and air in another pump cylinder, it is in substance anticipated by combinations using, instead of buckets, plungers or pistons. It is thoroughly proved that, for air pump use, buckets have great advantages, which cannot be secured by pistons or plungers, and that these are not equivalents for buckets in air pump use, though they may be for other purposes.

The defendant makes the remarkable contention that the evidence of the utilities of the patented structure as an air pump is wholly immaterial, because these utilities do not also appertain to it as a water pump, or as a combined air pump and water-circulating pump. This is to say that if the structure is new, and capable of three uses, one of which is of special utility and constitutes an important advance in the art, and two of which are of no substantial advance on the prior art, the invention is to be judged by leaving out the inventor's novel contribution to the art, merely because he says that his new machine will also do what old machines have done as well. This proposition is reiterated by the defendant in various forms:

“All the evidence, therefore, which the complainant has adduced to show the alleged merits and utilities of the twin air pumps manufactured by it under the patents in suit, is wholly immaterial and wide of the mark. It is not equivalent to showing what merits or utilities, if any, the structures described, shown and claimed in the patents sued upon, have by virtue of what is common to all their modes of use in comparison with other prior pumping engines. Neither the question of their utility nor the question of their novelty can be settled by consideration only of one of their modes of use. The inquiry in each case is concerned solely with what is characteristic of the structure when put to all the uses of which it is capable.”

It is a distinctive characteristic of the patented structure that, when used to pump air, it will create a high vacuum, and, in my opinion, there is no practical reason, and no reason in law or logic, which will permit a court to disregard this fact or to deprive an inventor of the benefit of this fact through any language used in the specification. The defendant offers no authority and no argument to support such a rule of construction, but throughout its brief assumes that the correctness of its position is self-evident. To all of the prior devices presented to show noninvention, the complainant replies that they are not capable of the results which the device of the patents in suit attains, and the sole reply to this is that it is immaterial. The defendant treats the claims of the Whiting & Wheeler

HH

patent as if they were for an abstraction of that which is common to all the uses of the claimed structure, instead of for a claimed structure which is capable of three uses, one of which is proved to be of special value. It is a remarkable argument to say that, although Whiting & Wheeler show a structure and claim a structure which unquestionably is designed and intended to be operated as an air pump, they are not entitled to show the advantages from such operation, because they do not exist when the structure is used for a water pump, or do not wholly exist when one of the buckets is used for a circulating pump. The proposition that no novelty is to be attributed to Whiting & Wheeler which is not contained in all the uses of their device is clearly contrary to the decisions in this circuit. Forsyth v. Garlock, 142 Fed. 461, 173 C. C. A. 577; Watson v. Stevens, 51 Fed. 1757, 2 C. C. A. 200; Davey Pegging Machine Co. v. Isaac Prouty & Co., 107 Fed. 505, 509, 46 C. C. A. 439; Consolidated Car Heating Co. v. American Electric Heating Corporation (C. C.) 82 Fed. 993, affirmed on appeal 85 Fed. 662, 29 C. C. A. 386.

A second question arises as to the construction of the Whiting & Wheeler patent. The general structure claimed in this patent may be understood from the following claims:

"1. The combination with the two vertical pump cylinders and their lifting buckets and valves, of direct acting steam cylinders and pistons with their piston rods in line and connected to the rods of the buckets, a frame and columns connecting with the pump cylinders and on which frame the steam cylinders are directly connected, a walking-beam between the pump and the engine and a pivot for the same upon a bearing extending down from the frame, and link connections at the respective ends of the walking-beam to the cross-heads of the piston rods for unifying the action of the engine directly upon the lifting buckets, substantially as set forth.

"2. In a direct acting pumping engine, the combination with a pair of pump cylinders having lifting buckets and valves and valves in the lower part of the pump cylinders, of steam cylinders and piston rods connecting the buckets of the pump and the pistons of the engine, a walking-beam between the pump cylinders and the steam cylinders, links connecting the ends of the walkingbeam with the piston rods, and a frame extending up from the pumps and to which the steam cylinders are directly connected and which frame also supports the pivots of the walking-beam, substantially as set forth.

“3. The combination in a pumping engine of two vertical pumping cylinders, buckets and rods for the same, a frame upon the pump cylinders, and steam cylinders directly connected to and supported by the frame, the piston rods of the engine being in line with and directly connected to the rods of the pumps, a walking-beam between the pump and the engine and links connecting the walking-beam and the cross-heads of the piston rods, the parts being arranged so that the links are in the same plane or nearly so as the piston rods at the termination of the respective strokes, substantially as set forth."

The complainant says that this patent is on the general combination of the pump proper with the direct acting steam engine by which it is actuated, and the structure of the whole pump, and that the Hall & Gage patent is on the combination of the Whiting & Wheeler air pump with a special steam valve movement, by which important results are secured in certainty and efficiency of action. The general character of the Hall & Gage patent may be gathered from claims 1 and 2:

"1. The combination of two pump cylinders, two steam cylinders arranged in line respectively with said pump cylinders, buckets in said pump cylinders, pistons in said steam cylinders, and piston-rods connecting said pistons and

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