porting standards curved parts projected inwardly and formed a top, and the two met and made a chamber substantially the length of the human body. Curtains were then drawn at the end of each chamber and the electricity turned on. There was no suggestion in the patent of the use of Gohlin's apparatus, other than to inclose the entire body; nor were the parts of the structure such that the size or shape of the chamber could be changed. What he states in his specification, and what his figures disclose, is a large, cumbersome apparatus of unchangeable proportions, designed to treat the human body as a whole. Such remained the state of the art, and presumably the use of chambered electricity, for some 22 years thereafter, when the patent in suit was applied for. It is quite manifest that when this patent was applied for, and its specification drawn, the applicant was unaware of what Gohlin had done, or of his patent, and when that patent was cited against his application he realized his entire specification described the art in an inadequate way, and that the broad first claim which he made would have covered Gohlin's device. When thus apprised, he at once withdrew his application, erased a number of his figures, and filed a new application and new claims, which properly described what he brought into the art.

An examination of this new application shows that what the patentee really did was to devise a simple, easily movable, readily adjustable apparatus, without standards or support. It was adapted to take such different forms that it could be used on any limb or part of the body, and thus create a chamber which could in size and shape bring its walls into closer relation to the member to be affected by its radiated heat and light. He dispensed with standards, by suspending his simple apparatus by ceiling cords. This allowed it to be swung about, and to be placed in any position desired, and dispensed with standards. Second. He made the structure a unitary movable one, which could be picked up by a handle. Third. He made it a unitary structure, by disclosing for the first time the use of a hinge, which allowed the sides to be adjusted, so as to conform to the limb or the part that is being treated, or, in other words, to be, so to speak, wrapped about the heated part. Fourth. He disclosed elements that were not shown in Gohlin's structure, which was two-part, mounted on standards, had a chamber of one fixed size, and adapted for application to the whole body.

As to those elements which alone embodied the present plaintiff's invention, and contrasting them with Gohlin's invention, we see that the only thing in common between him and Gohlin was an electric chamber. But as to those things which were new, and which are referred to above, there was nothing in Gohlin's patent which required the patentee in any way to limit or modify his claims, so long as he restricted them to the elements of novelty which he disclosed in his specification.

Bearing this in mind, we see that Gohlin's patent had no other significance or effect in the proceedings in the Patent Office than to restrict the patentee to those elements of novelty which he showed; but in so far as those elements of novelty were themselves concerned, and

his right to have claims commensurate with those disclosures, his application stood unaffected by Gohlin's patent. It was a red flag, which warned the applicant to keep off the path which Gohlin had pre-empted, but which in no way restricted his right to the new path which he himself had disclosed.

What, then, was the apparatus which the present patentee disclosed, and what claims were allowed him? His apparatus consisted of a simple structure suitable for limb treatment. His new idea of adjustment of the sides of his chamber, which adjustment could not have taken place in Gohlin's structure, but which enabled him to closely chamber a limb of the body, was provided for by a hinge at the upper end of the chamber sides, and this was embodied in his claim, to wit:

"The improved surgical baker, comprising the opposite side sections hinged together at the upper ends thereof, and adjustable toward and from each other, to vary the distance between them, and provided with means of holding the same in their position of adjustment."

It is quite evident that the particular form in which those opposite side sections were commercially built, whether they took the form of the side of a Gothic arch, as he appeared to have worked out in practice, or the quadrant of a circle, as he showed in Figure 2, with an arch flattened at the top, were matters of functional indifference. The point was that, whatever form they took, the two sides of the chamber were to be adjustable to and from each other, and this adjustability was to be secured by a hinge at the upper ends of the chamber sides, and when the desired position was obtained the hinge was controlled by a set screw. His second idea of ceiling suspensory support was embodied in his second claim by adding to it the element of an "overhead suspensory support." His third element was for the hinge novelty of his first claim, with the addition of electrical equipment.

This little structure appears to have met a need in the art. The proofs showed that, from 4 used in 1903, there was a gradual increase to 97 in 1913, at which time the merit of the device seemed to have been recognized by the medical profession, for in 1914 the sales sprang to 207, and have increased from that time to the hearing before the court. When the further fact is considered that this apparatus is not for individual use, but obviously intended for general use in hospitals, that it has been sold in Canada, Australia, and gone abroad, it is quite evident that it has up to this time met a public need, and that in all probability the remaining 2 years of the patent's life will be the period of its greatest value. During all these years there is no proof that any one challenged the patent or trespassed upon its commercial monopoly, until the defendant manufacturing company has lately put the alleged infringement upon the market. That its functional purpose is to do exactly what this patentee saw, and has for 14 years been doing, is quite clear. It shows a small, compact structure, adapted to suspension, capable of adjustment to limbs, unitary, and of such size as to be readily portable. Functionally, and in its adaptability, it does everything in the same way and for the same purpose that this plaintiff patent disclosed 14 years before.

That it may be a slight improvement over the plaintiff's structure may be admitted, but the question still remains: Did it infringe the claim by which the original patentee's disclosure was protected? That it has side walls, and that those side walls are adjustable by hinge movement from the top, is the fact. It seeks to escape infringement by reading into the plaintiff's claim a limitation to a single hinge, which physically and alone connects the plaintiff's two chamber sides, and by superimposing a third member at the top of its own chamber, which has a hinge at each end, connecting with the upper ends of its side structure, it would avoid infringement. But functionally the defendant's two hinges are the mechanical equivalent of the plaintiff's one hinge, in that the hinge mobility of both mechanisms alike effects the chamber side adaptability which this patent brought into the art. It is manifest the defendant does not use his two hinges to eliminate the function of chamber side adaptability, but solely to mask infringe

ment.

It is clear to us that the plaintiff's claim must be read in a way to give the hinged connection, which he brought into the art, the functional breadth which would cover any hinge arrangement which, while escaping the mere form of the plaintiff's structure, embodied and secured all its hinge-functional purpose. The art has respected the monopoly of the plaintiff for 14 years, and it is quite evident to us that the value and success of this little structure have tempted this defendant manufacturing company to appropriate its substance by the substitution of what is a mere mechanical expedient, which, while it respects the literalism of the claim, filches the soul and substance of the disclosure which the claim was given him to protect.

This case must be reversed, and infringement decreed.

RAUCHBACH-GOLDSMITH CO. v. SEWARD TRUNK & BAG CO. (Circuit Court of Appeals, Third Circuit. November 20, 1918.)

No. 2417.

PATENTS 328-VALIDITY—ANTICIPATION.

The Seward patent, No. 1,135,404, for a wardrobe trunk, having in combination a gate hanger pivotally within the cover portion, brackets extending laterally from the gate hanger and garment hangers, etc., held valid and not anticipated.

Appeal from the District Court of the United States for the District of New Jersey; Thomas G. Haight, Judge.

Bill by the Seward Trunk & Bag Company against the RauchbachGoldsmith Company. From a decree for complainant, defendant appeals. Affirmed.

Alan D. Kenyon, of New York City, for appellant.

Charles E. Brock, of Cleveland, Ohio, for appellee.

Before BUFFINGTON, MCPHERSON, and WOOLLEY, Circuit Judges.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

BUFFINGTON, Circuit Judge. The present case in effect involves a review of our decision in Seward v. Osterweil, reported in 252 Fed. 136, —— C. C. A. —, wherein we sustained the validity of Seward's patent, No. 1,135,404, for a wardrobe trunk. In the present case we have had the benefit of the views of a third member of this court who took no part in that case, and also the further light thrown on the art by a patent not before us in the former case, to wit, No. 1,024,366, granted April 23, 1912, to Paul Schiefer, for a clothing cabinet. Reference to our former decision saves a restatement of the facts.

The validity of Seward's patent generally, and also as affected by Schiefer's patent, has had our careful consideration, but we see no reason to question our previous conclusion. Seward was the first to produce a wardrobe trunk which had in combination the three elements of (a) "a gate hanger pivotally mounted within the cover portion;" (b) "brackets extending laterally from said gate hanger;" and (c) "garment hangers having a two-pointed suspension mounted upon said bracket." As soon as Seward disclosed it, his trunk went into such wide use that his combination of elements at once attracted the covetous eyes of infringers. In the whole working art of the trunk maker, as well as in the disclosures of the Patent Office, these infringers found nothing but Seward's combination which met their commercial needs; but they now urge that in the literary archives of the Patent Office there exist, not Seward's workable combination, but isolated elements of that combination, which should have suggested to him his successful combination.

We have re-examined this art, and we nowhere find anything that anticipated Seward's threefold combination, or in any way created such a step in the trunk maker's art that Seward's threefold combination was only the mechanical development of the art from that attained step. In our judgment, Seward's was an original conception, every element of which, co-operating in a new working way, was necessary to making and did make Seward's trunk a success. So far as the record shows, these earlier trunks were either failures, or at any rate never made any headway in the art. Indeed, it is clear it is this threefold, original combination of Seward, and this combination alone, that make his dévice a success. No matter whether large or small, Seward's difference from the prior art was the difference between success and failure. Tested from the viewpoint of the patents that preceded Seward's, he gave the public something valued, workable, and novel in its sphere, and the disclosure was inventive in character. The public promptly put its seal of approval on his work, and this court, in sustaining the validity of the patent and staying the hand of an infringer, makes workably practical and commercially valuable the patent awarded him. The decree below is affirmed.

ECONOMY FUSE & MFG. CO. v. BEAVER ENGINEERING CO.

(Circuit Court of Appeals, Third Circuit. January 21, 1919.)

No. 2397.

1. PATENTS 328-INFRINGEMENT.

The Hornsby & Anger patent, No. 882,498, for protective appliance for electric circuits and apparatus, which is a device for mechanically indicating on the outside of the casing when a fuse has blown, held not infringed.

2. PATENTS

328-INFRINGEMENT-FUSE HOLDER.

The Horton patent, No. 901,448, for fuse holder, as limited by the prior art, held not infringed.

Appeal from the District Court of the United States for the District of New Jersey; Thomas G. Haight, Judge.

Suit in equity by the Economy Fuse & Manufacturing Company against the Beaver Engineering Company. Decree for defendant, and complainant and defendant appeal. Affirmed.

The following is the opinion of Haight, District Judge, in the court below:

This is a suit for infringement of claims 5, 6, 7, 9, 10, 13, and 24 of patent No. 882,498, granted to Hornsby & Anger on March 17, 1908, and claims 6, 12, 13, and 14 of patent No. 901,448, granted to B. D. Horton on October 20, 1908. Both patents relate to electric fuses of the inclosed indicating type. The infringement complained of is the sale by the defendant of certain fuses which were manufactured by the Chase-Shawmut Company. They will hereafter be referred to as defendant's fuses or devices. Inclosed indicating fuses are designed to reveal by a mere exterior inspection whether or not the fuse has been blown. They are of two general types. The type first evolved, and apparently, with some modifications, still very extensively used, may be generally referred to as that of the Thalacker patent (No. 502,541, issued on August 1, 1893). In that type, in addition to the main fuse, there is employed an auxiliary fuse or shunt wire, which, when the main fuse blows, carries all of the current, and, being smaller and of greater resistance, is itself immediately blown. In order that an exterior inspection may show whether the fuse has blown, a portion of the auxiliary fuse is brought to the outside of the case inclosing the main fuse, or can be seen through it. The prior art exhibits several different forms of this general type. It is claimed, however, that it is objectionable, in that, as a portion of the auxiliary fuse is exposed on the outside of or through the fuse case, there is danger of fire being communicated to nearby inflammable objects, so that the beneficial effect of inclosing the main fuse is, in a measure, lost by the new danger resulting from the burning of the exposed auxiliary fuse.

It was to overcome this objection, real or supposed, that the second type of indicating fuses, to which those of the patents in suit belong, was evolved. This type may be referred to as mechanical indicators. The prior art likewise exhibits several different forms of such. That of the Hornsby & Anger patent in suit employs the basic idea of Thalacker, in the use of an auxiliary or shunt wire. This latter wire, however, is not exposed in any way on or through the outside of the fuse case. It is attached to, and holds depressed, a coil spring, which, in turn, is attached to a plug inserted at the end of the case. When the main fuse wire blows, all of the current, as in Thalacker, is immediately diverted to and passes over the auxiliary or shunt wire, with the result that the latter is at once blown, and thereby the coil spring released, which in turn ejects the plug at the end of the case, either wholly or through an aperture in a second or outer inclosing case, and thus gives visible

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes