Bleser v. Baldwin

KOHESAAT, Circuit Judge (after stating the facts as above). [1] It was not new in acetylene gas lamps to so adjust the pipe and needle or stem running therethrough as that the latter should move auto-’ matically up and down within the pipe, and thereby clear it from accumulations. This was attained in the Handshy patent, where the pipe moved up and down the stem, being the reverse of the movement of the stem and pipe in suit. it was new to claim the-regulation of water supply by means of gas pressure upon the column of water in the water supply tube. No reason is perceived, however, why the same result could not have been [137] attained in the Handsliy and Hallows and Tucker patents, were these patents not provided with easier means for relief from excessive pressure. It was also new to secure more complete scouring of the inner walls of the water supply tube near its lower end, by bending the needle or stem therewithin, so as to give it stiff resilient bearing against the inner wall of the tube, and at the same time securing steadiness of the valve, in case of jolting or rough handling. None of the patents of the prior art disclose a stem protruding from the bore in the lower end of the water supply pipe. The patent claims for this a better method of distributing or delivering the water to the carbide. Jt sets out that the water should be delivered in small drops or particles and asserts that this result follows the use of a sharp- pointed stem. Inasmuch as the water supply pipe in the first patent in suit delivers the water into what is called a foraminous tube, through the meshes of which the water passes to the carbide, the advantage of this feature does not seem considerable. This patent has many other elements, but the foregoing are deemed sufficient for the purposes of this suit. Taking into consideration the features above mentioned, the somewhat novel arrangement of the parts, and the presumption arising from the grant, we deem the validity of the patent duly established, qualified, however, by the disclosures of the prior art as above set out. It is evident, however, that it covers no wide field of invention and is not entitled to a broad construction with reference to equivalents. The second patent in suit is for alleged improvements upon the first. [21 As above stated, these consist in its means for agitating- the carbide, and the location of the lower end of the water tube and protruding stem within the carbide mass. The former has some merit of a modest kind. It is new and useful, and, in our judgment, entitled to recognition as involving- some inventive thought. The latter is found in Handsliy. As to the tube: even were this arrangement thereof not found in the prior art, it falls short of invention. Without it, the other feature is valueless. It is obviously the only thing to do, where it is sought to stir up the" packed carbide or carbide refuse by the use of a stem projecting from the end of the tube. Some claim is made that appellant’s device discloses a stem, bent near its lower end to operate as appellee’s does. This is strenuously controverted by appellant. An inspection of Exhibit D, being one of appellant’s lamps, alleged to disclose a bent stem, satisfies us that the stem is not bent. The Blcser patent does not call for it, and the proofs do not justify such a finding. Evidently, the tube is imperfect, its wall not being uniform in thickness around its perimeter, thus throwing the needle slightly out of true; but the evidence fails to show that there was any intention to bend it, nor does there appear to have been any advantage in doing so. We do not deem the position of appellee in regard to its being bent well taken. It follows that appellant does not infringe the second patent in suit, and as to that the bill is dismissed for want yff equity. Since appellant’s needle or stem is so constructed as not to bear frictionally against the inner walls of the water supply tube, it is not the stem of claims 2, 3, 4, 5, and 6 of the first patent in suit. [138] Claims 2 and 6 set out that the bent stem will prevent rotation of the valve stem. Claim 4 functions the stem to prevent rotation of the valve itself, while claims 2 and 5 ascribe to the stem the function of keeping the inner walls of the water supply tube clean — all operated by a plug which may be manipulated from .outside the lamp. The subject-matter of claim 10, which seeks to graduate the height of the water column to the requirements of the burner, was anticipated in the Hallows and Tucker patent, so far as need be here considered. There is no evidence that appellant has appropriated it. Therefore none of these claims are deemed to have been infringed'by appellant. Appellant’s needle, which in some respects corresponds to appellee’s bent stem, differs from it in that it does not carry the valve, is not bent, does not operate as a brake, and may be moved up and down, and, as seems apparent, rotated without interfering with the water supply tube or any other element of his combination. The Bleser patent calls for a needle fitting loosely into the tube and 'other hollow parts of which it constitutes the core. Its function is “to clean the tube 4 and remove any obstruction from the end thereof.” It is clearly the stem of claim 1 of the patent in suit, save for the fact that it does not carry the valve member. In other respects its mission is the same as that of the stem of claim 1, which claim calls in part, for “a plug closing and opening into the reservoir, a stern carried by the plug and extending through the reservoir and water tube, and a valve secured to or carried by the stem and controlling the passage from the reservoir into the said tube, as set forth.” With regard to appellant’s lamp, as a complete device, it appears that it has a plug closing and opening into the reservoir by means of a series of ' parts through which the needle extends, a valve secured to or carried by those parts arranged to operate as a tube, which valve controls the passage from the reservoir into the water supply tube, and a needle extending through and beyond the tube, like that of claim 1. Those correlated parts, constituting a tube, as above stated, and carrying the valve, together with the needle, are the equivalent of appellee’s stem considering them as an equivalent, and taking into áccount the identity of functions of appellee’s stem and appellant’s needle from the valve down through and beyond the water supply tube, we have an appropriation of appellee’s device by appellant down to that point, wanting only the pointed stem or needle, which appellee claims enhances the efficiency of his device. As in Handshy, so in the appellant’s device, the lower end of the water supply tube contacts with the carbide mass, therefore the need of the movable needle to agitate the mass, as well as clear the tube. Does the extension of the needle through the water supply tube at the place of contact with the carbide mass alter the case? This feature is shown only in the device of the second patent in suit, but there the needle or stem protrudes from the tube at considerable length, and substantially at a right angle to the tube. This has been held above not to be infringed by appellant. Nor would the extension of the tube and stem of claim 1 to absolute contact with the carbide mass change the character of the device of that claim. To all intents and purposes it is in contact with that mass. [139] The intervention of the foraminous tube N, avoids the need for using the stem to agitate the carbide. If, however, it should become necessary, it is fully adapted to that end. The difference between the two is not deemed important enough to constitute an essential element of the combination of claim 1. This, taken together with the fact that appellant regulates the flow of water by gas pressure, a method not disclosed in the prior art, leads to the conclusion that his device is but an unsuccessful attempt to evade appellee’s conception as shown in claim 1 of the first patent iti suit. This claim presents the minimum of patentable novelty, hut we deem that little entitled to the protection of the statute, and therefore hold it valid and infringed. As to claims 2, 3, 4, 5, 6, and 10, of patent No. 656,874, and claims 1 and 4 of patent No. 821,580, the decree appealed from is reversed and remanded with direction to the Circuit Court to dismiss the hill for want of equity as to said claims. The order appealed from decreeing validity and infringement of said claim 1 of said first-named patent is affirmed.