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fication consisted of a discharge pipe through which, by an air blast from a fan, dust and shavings were carried from the wood-working room into a collector. The collector was a box or chamber so constructed as to permit the air blast to escape through the top, and the dust and shavings, by force of gravity, to fall down through a discharge pipe into a conductor pipe. The conductor pipe was divided into two branches,-one opening and emptying into a receiving room situated directly beneath the collector, and the other leading, by a curved, downward course, through the brick wall of the receiving room into the furnace room, and thence into the furnace. At the point of branching was a gate or valve capable of adjustment so that the dust or shavings might be directed into either the receiving room or the furnace, or be divided between them. A small pipe was placed in the main air blast pipe, just before it entered the collector, and was carried down by the side of the collector into the receiving room, where it was introduced into the conductor pipe, and at a point very near the furnace mouth of the latter. This small pipe was so placed in the blast pipe and the conductor as to carry and apply a part of the air blast to the dust and shavings just before they entered the furnace. The pipe had a cock to regulate the amount of the blast. The claim under the patent was as follows:
"In fuel fecders for furnaces, the combination with the collector, A, having discharge pipe, E, of conductor pipe, D, having branch, H, and regulating valve, I, and connecting the collector with the furnace, and the air pipe, F, provided with regulating cock, f, connected with said conductor, D, and with means for forcing air into the conductor for discharging the shavings into the furnace, substantially as and for the purpose specified."
In the reissued patent the specifications and drawings are just the same, except that this clause is added in the specifications: “The pipe, F, although preferable, is not essential, as any other means i introducing a blast into pipe, D, would answer the purpose;" and in the claim a change is made from the original by omitting the words, "and the air pipe, F, provided with regulating cock, f, said conductor, D."
It is conceded that every element of the original patent is old, with the exception, perhaps, of the application of the air blast both to the carriage of the shavings to the collector, and to the forcing of them into the furnace from the conductor. The patent claimed is not, either in the original or in the reissue, for any single element or device, but for the combination of old elements to produce a new result.
We are of the opinion that the reissued patent is void, because the new language in the specification, and the omission of the clause in the claim, operated to enlarge the scope of the invention beyond what was intended to be claimed in the original. The feature of the original patent affected by the change is the conveyance of part of the air blast into the furnace mouth of the conductor. A reading of the original specification leaves no doubt that, in the mind of the inventors, it was a valuable part of the combination that the same blast which carried the shavings to the conductor could be utilized by means of pipe, F, for the purpose of forcing the shavings through the lower end of the conductor into the furnace. The claim is rather
bunglingly worded, it is true, in this regard, but, taking the description and specifications with the claim, the only construction which can be given to the words of the claim, "and the air pipe, F, provided with regulating cock, f, connected with said conductor, D, and with means for forcing air into the conductor for discharging the shavings into the furnace, substantially as and for the purpose specified,” is to render them as if they read, "and the air pipe, F, provided with regulating cock, f, connected with said conductor, D, as a means for forcing air into the conductor for discharging the shavings into the furnace, substantially as and for the purpose specified.” The claim on the reissued patent covers the application of air or steam at the mouth of the conductor by any means,—whether from the main air blast used to carry the shavings to the conductor, or from an independent source. This is a distinct enlargement of the claim. The original specification and claim were entirely operative and practicable. There was no defect in the description, and no omission from the claim of any element which was palpable on an examination of the patent. No mistake or inadvertence on the part of the inventor or solicitor in the specifications or claim is attempted to be shown. Under these circumstances the decisions of the supreme court leave no doubt of the invalidity of the reissued patent. Gage v. Herring, 107 U. S. 610, 2 Sup. Ct. Rep. 819; Miller v. Brass Co., 104 U. S. 350; Leggett v. Avery, 101 U. S. 256; Gill v. Wells, 22 Wall. 1; Russell v. Dodge, 93 U. S. 460. In the last case the patent was for an improvement in the treatment of leather by use of fat liquor. The original patent was for a process for treating skins with a compound of which heated fat liquor was an essential ingredient. The reissued patent covered the use of fat liquor in any condition, hot or cold, and when used alone or in a compound. Mr. Justice Field, in delivering the opinion of the court, said:
“The original patent was not inoperative nor invalid from any defective or insufficient specification. The description given of the process claimed was, as stated by the patentee, full, clear, and exact, and the claim covered the specification. The one corresponded with the other. The change made in the old specification, by eliminating the necessity of using the fat liquor in a heated! condition, and making, in the new specification, its use in that condition a mere matter of convenience, and the insertion of an independent claim for the use of fat liquor in the treatment of leather generally, operated to enlarge the character and scope of the invention. The evident object of the patentee in seeking a reissue was, not to correct any defects in specification or claim, but to change both, and thus obtain, in fact, a patent for a different invention. This result the law, as we have seen, does not permit.”
The facts and the language used make the case exactly applicable to the one under consideration.
On another ground, also, the complainants must fail. The combination of elements they rely on in their reissued patent is a combination of old elements to accomplish an old result. In Emlaw's patent, dated October 17, 1871, (No. 120,052,) and described as an improvement for feeding sawdust to boiler furnaces, substantially all the elements claimed by complainants in their reissued patent are present. There the sawdust is carried, by any suitable carrier, to a feed box, which corresponds with the collector of complainant, and, like it, is placed above the boiler furnace. There the sawdust is
ENTibitel. by means of an endless chain, to several conduetors, leadng in Eferent furnaces. In each conductor is a valve, by opening rich the gawdust can be diverted from the furnace on to the floor of rile furnace room. This corresponds to the branch pipe of complainan. Icasting into the so-called "receiving room." By means of a PCR minning from a fan to the furnace mouths of the conductors, an air blast is applied to the sawdust just before it enters the furnace. This eorresponds with the claim of complainants, in their reissued parent. for any means of applying force to the sawdust and shavings near the furnace mouth of the conductor pipe. We have in the Em. law patent, then, (1) the collector; (2) the conductor, through which the dust drop by fore of gravity; 3) the valve for diverting shavings from furnace, and the reinforcement of gravity by air blast at the month of the conductor.—all substantially as they are claimed by complainants. They make their entire combination, and produce the same reelt. The furnace fuel feeder of A. Warne, patented Annust 28, 1888, No. 388.168.) for which application was filed Febmary 7, 1887, five months before complainants filed their application for their original patent, anticipates in every particular the combination of complainants, as specified and claimed in the reissued patent. It has the main air blast discharged into a collector, and escaping from its top; the falling of the dust into a conductor, the diversion, by branch pipes and a valve, of the dust from or to the furnace, and to or from the receiving chamber; and the application of a steam blast near the furnace mouth of the conductor. There are other fratores of this invention not contained in complainants' patent, but Every clement which is in theirs is in Warne's, to produce the same retult.
In the view we have taken of the validity of the reissue, and its novelty, it is unnecessary to consider the other defenses. Bill dismissed.
BRUSH ELECTRIC CO. et al. v. ACCUMLATOR CO.
(Circuit Court, D. New Jersey. January 19, 1893.) 1. PATEST FOR INVENTIONS-INFRINGEMENT-ISJONCTION-CONTEMPT.
An injunction having issued restraining defendant from making any secondary or storage batteries embodying the invention covered by letters patent Nos. 266,030 and 337.299, issued, respectively, October 17, 1882, and March 2, 1986, to Charles F. Brush, defendant subsequently, after a full hearing, procured, upon certain conditions, a modification thereof, allowing it to supply to a certain street-railway company, with whom it had a contract, certain batteries required by that company in renewal of batterios already furnished, which were of a size and form that complainants could not supply. In procuring this order, defendant produced in court its contract with the said railway company, which provided that defendant should for three years supervise the operation of the electrical equipment supplied by it, and for this purpose should furnish and pay the salary of a supervising electrician, who should have general charge of the operation of the storage batteries in the company's cars. Held that, although the order of modification merely permitted defendant to "supply” such batteries, it must be construed to also permit defendant to supervise their operation according to the contract, and defendant was not guilty of contempt in so doing.
The injury to complainants arising from the order of modification sprang from the permission to furnish the storage batteries, and no additional pecuniary damage was caused by simply allowing it to supervise the operation thereof, after having installed them under permission of the court; and hence complainants had no special ground of complaint in that respect.
In Equity. Bill by the Brush Electric Company and others against the Accumulator Company for infringement of a patent. An injunction pendente lite was heretofore granted on the arilliority of the decision of Judge Coxe in the circuit court for the suuthern district of New York, in Brush Electric Co. v. Electrical Accumulator Co., 47 Fed. Rep. 48. The cause is now heard on motiun to attach defendant as for a contempt in violating the injunction. Denied.
W. H. Kenyon, for the motion.
GREEN, District Judge. This is a motion on behalf of the complainants, to attach the defendant as for a contempt for the alleged violation of a certain restraining order and a preliminary injunction heretofore granted by this court. The bill of complaint was filed in this cause to restrain the alleged infringement of certain letters patent granted to Charles F. Brush, dated October 17, 1882, and March 2, 1886, and numbered, respectively, 266,090 and 337,299. These letters patent had been adjudged to be valid by the circuit court of the United States for the southern district of New York, (Brush Electric Co. v. Electrical Accumulator Co., 47 Fed. Rep. 48,) and upon presentation to this court of the record in that case, and it appearing that the matters and facts therein set forth were in all things identical with the matters set up in the present bill of complaint, an order was granted by this court upon the defendant, on the 11th day of December, 1891, requiring it to show cause why an injunction pendente lite should not issue, pursuant to the prayer of the bill; and it was also ordered, at the same time, that, until the hearing of that order to show cause, the defendant should be restrained and prohibited from “directly or indirectly making, using, preparing, selling, or disposing of any secondary or storage batteries embodying the inventions alleged to be secured to Mr. Brush by the letters patent in the elements described or claimed in any or either of the above-recited claims of either of said letters patent.”
Upon the hearing of said order to show cause, and after argument by counsel for both parties, it was adjudged that an injunction pendente lite should issue against said defendant, and consequently, on March 19, 1892, a formal writ of injunction was issued, strictly“Commanding and enjoining the said defendant, its officers, associates, clerks, attorneys, solicitors, agents, and servants, and all persons claiming or holding under or through it, to desist and refrain from directly or indirectly making, using, preparing, selling, or disposing of any secondary or storage batteries embodying the inventions, or either of them, covered in or by claims 1, 2, 3, 6, 7, and 12 of letters patent of the United States granted to Charles F. Brush, March 2, 1886, and numbered 337,299, or in or by claims 7 and 14 of letters patent granted to said Brush dated October 17, 1882, and numbered 266,090, or from any construction, sale, or use, in any manner, of any improvement in processes for making secondary batteries and secondary battery
This writ of injunction was duly served on the defendant, as appears by the proofs submitted on this motion, on March 21, 1892. At the time of the making of the order to show cause and the granting of the injunction pendente lite, the defendant company was under contract with certain street-railway companies to furnish to them storage batteries of its manufacture for the operation of their various railway systems. It should be stated that an appeal had been taken by the defendant from the judgment and decree of the United States circuit court for the southern district of New York, sustaining the letters patent of the complainant, to the circuit court of appeals for the second judicial circuit, which appeal, at the time of the filing of the bill of complaint in this court, and at the time of the making of the restraining order and the granting of the preliminary injunction, was still pending and undetermined. It is an admitted fact that the life of a storage battery in constant use is quite limited, and there must be constant renewals, either of the battery itself as a complete structure, or of the elements which enter into its construction, that it may be productive of the best results. The contracting customers of the defendant company were therefore making constant demands upon the defendant to repair the storage batteries which they had originally obtained from it, or to furnish new batteries necessary for the continuance of the motive power upon their respective railways. At that time, also, it is admitted, the storage battery made by the defendant, and which has been adjudged to be an infringement of the complainants' battery, was somewhat different in form and size, so that the elements of the battery of the complainants could not be substituted readily or easily for the elements of the defendant's battery; and it followed, as a consequence, that as the defendant and the complainants were the only corporations in the United States manufacturing storage batteries, if the complainants could not immediately and promptly furnish to the defendants' customers the various elements of a storage battery in such form and shape as to be substituted for and be immediately installed in the place of the storage batteries then being used, the operation of the various companies using the defendant's storage batteries must necessarily cease, for a time at least.
Under these circumstances the defendant applied to this court on December 16, 1891, for a modification of the restraining order referred to, and after argument by the counsel, and in view of these facts, the restraining order theretofore made was modified so as to permit the defendant corporation, until the further order of this court, to supply the customers with whom it had contracts, express or ilplied, with batteries of the character and kind which had been adjudged to be infringements, upon the condition, however, that they should file a bond with the clerk of this court, in the penal sum of $10,000, as security for the payment to the complainants of any prof. its or damages that they should be entitled to recover hereafter by reason of such supply, if the decree of the circuit court should be affirmed by the circuit court of appeals. The principal customers to