In all of these a chimney is used, which takes the place of the outer tube. Hence such structures would not literally fall within the claims. But it is asserted that, if the chimney used with these lamp burners, thereby producing a luminous flame, be exchanged for the outer perforated tube, a blue flame burner will be evolved. Exhibits are produced to demonstrate this, and it is urged that there is no invention in putting a perforated tube in place of a chimney. The defendant's statement is that a perforated tube in the place of a chimney produces a blue flame burner, and that the function of an inner tube like that of Ruppel in the lamp is the same as if the lamp's chimney were exchanged for an outer perforated tube. The experiment in court with the Bohner burner, assuming that the exhibit followed the Bohner patent, did show a luminous white or yellow flame when the chimney was used and a blue flame when the outer perforated tube was used. The complainant's brief states that lamps with chimneys "burn vapor direct and feed air through flame spreaders to the flame. The invention in controversy does not have this mode of operation. Quite to the contrary, the invention in question is a gas-producing device, which first converts the vapor into a carbon monoxide gas in the combustion chamber, and then burns it as it issues therefrom. In these lamp patents the air is not fed to the vapor to convert it into a gas, but is fed to support an external combustion of the vapor direct." But it seems from complainant's own witness Smith that both in the lamp proper and blue flame burner the fuel is converted from hydrocarbon liquid to a vapor, then supplied with oxygen, and finally converted into carbon dioxide, or carbonic acid gas. But the absence of the outer tube causes the fuel thus converted to be burned in the chimney rather than above the combustion chamber. In the case of the blue flame burner the gas is made and is burned in the open air. In the case of the lamp, as Mr. Smith says, the "products of dissociation of hydro-carbon vapor, possibly containing free carbon, are heated to incandescence by the surface combustion, and thus impart the luminous qualities to such flame." Yet it seems by Mr. Smith's evidence already mentioned the hydro-carbon does at some stage of its consumption in the lamp become carbon dioxide. What, then, does the air entering the combustion chamber from the inner tube effect in the case of the lamp that it does not effect in the case of a burner? The outside tube admitting a large body of air seems to cause whatever difference there is, and that difference relates to the place where the converted fuel is consumed. It appears from the file wrapper that the question arose in the Patent Office, where three claims, which the inventor wished to add, were rejected by reference to the Jauch patent, No. 412,958. The examiner after such rejection,

wrote:

"Perhaps, however, the applicant may show that the patent to Jauch is not anticipatory in character, for the reason that the air-checking diaphragms are in each case merged into a different genus, and have, therefore, unlike functions. What such functions are should be clearly indicated."

Nevertheless, the Patent Office, after the interference proceedings disclosed, allowed the present claims. But it is unnecessary to decide the question, for it is thought that the lamp burners do not anticipate.

The defendant's reference to the patents issued to Hoerle, Rhind, 1888, and Bohner, illustrate the prior art. In each case the chimney takes the place of an outer perforated tube. In Hoerle, shown below, there are two flanges, something like diaphragms, which differentiate it from the Ruppel in suit.

A truncated cone is used in the inner tube, and the specification states: "Not only is the air steadied by reason of this inner cone preventing the air from rushing directly through the perforations of the outer cone, but a still-air-chamber is provided between the cones F and G, and within this chamber the air is heated and expanded, and then supplied steadily to the flame throughout the whole lateral surface of the outer cone or thimble."

This structure neither resembles the Ruppel burner nor does it answer to the claims, for very much the same reasons given above for differentiating the Lannert & Jeavons, 1891, patent from the Ruppel in suit. The Bohner lamp is shown by Figure 1:

FIG.1
9.

It shows a check plate of lesser diameter than that of the inner tube, to form a contracted annular passage to the upper portion of the distributor. The specification states that the disk acts as a "check to the upward draft of air, causing the same to be deflected outward at and near the base of the flame to cause a more perfect combustion at such point; the remainder of the air passing up around the check disk 7, and out through the perforations in the upper part of the skirt, to mix with the upper portion of the flame to complete the combustion." But the following sentence is significant:

"It is preferable, however, to discharge a large part of such air out in a radial horizontal direction through slits or passages left between the outwardly-flaring top of the skirt, 6 (inner tube), and the overhanging spreader plate or cap, 8, of the same."

This construction is shown in the diagram. This little device can be reshaped, the check plate amplified, the air chamber expanded and conformed to resemble the Ruppel burner, but the diagram and description in the specification do not bear much resemblance to the Ruppel patent.

It is impossible to discuss all of the varied propositions suggested by the defendant's counsel in his useful and lucid brief. They have been considered with care. The prior art, in some instances, both in lamps and blue flame burners, so nearly touches the Ruppel patent as to cause grave hesitation in ascribing to his structure the merit of invention. But carefully weighing all considerations, it is thought that the question should be decided that Ruppel did take a forward step in the art that is valuable and shows invention.

This brings the inquiry to the Jeavons patent. The claims involved, 22 and 23, require a structure containing (1) combustion tubes; (2) a plate between them around whose sides the air passes; (3) imperforated combustion walls above the plate; (4) either no cap or an open web or cap, "which spans over the space between the two_tubes," through which holes alone the air above the plate can pass. The Silver structure shows a diaphragm with notches at the periphery, perforated walls above through which the air above the diaphragm must pass, because the chamber is closed by an imperforated cap. In view of these differences it is concluded that the defendant's structure does not infringe the Jeavons patent.

There should be a decree enjoining the defendant from infringing claims 6, 7, and 8 of the Ruppel letters, and that the defendant's structure does not infringe the Jeavons patent. Costs will be settled upon application.

MERRIMAC MATTRESS MFG. CO. v. FELDMAN.

(Circuit Court, D. Massachusetts. November 3, 1904.)

No. 1,744.

1. PATENTS-ANTICIPATION-CRUDENESS OF ANTICIPATING STRUCTURE.

The fact that a mechanical structure is crude does not prevent it from being an anticipation of one subsequently patented, where the inventive thought embodied is the same in both.

2. SAME-ABANDONMENT.

Where an unpatented mechanical invention was reduced to practice by the construction and use of the device, and its exhibition by the inventor to others, it cannot be abandoned so as to change its effect as an anticipation of a device subsequently patented by another.

3. SAME.

Anticipation is not avoided by the fact that the inventor of the anticipatory device, which he reduced to practice, did not realize its value, and so changed it before applying for a patent that the patented structure was not an anticipation.

4 SAME PRIORITY OF INVENTION-REDUCTION TO PRACTICE.

The first to reduce an invention to practice, as shown by an actual construction produced in court, is usually held to be the inventor, as against another who merely says he had previously conceived the invention. 5. SAME-ANTICIPATION-COUCH-BED.

The Leighton patent, No. 667,916, for an interconvertible couch-bed, is void for anticipation by one Mallet, who conceived the invention and reduced it to practice by the construction of a couch-bed prior to its reduction to practice by the patentee.

In Equity. Suit for infringement of letters patent No. 667,916, for a couch-bed, granted to Eugene R. Leighton February 12, 1901. On final hearing.

Milton E. Robinson and James E. Young, for complainant.
Roberts & Mitchell, for defendant.

The

HALE, District Judge. This suit is for infringement of claims 5, 6, 7, and 8 of letters patent of the United States, No. 667,916, issued February 12, 1901, to the complainant, on the invention of Eugene R. Leighton, for a new and useful improvement in couch-beds. same claims of the patent have already been before this court in Merrimac Mattress Manufacturing Company v. Brown, 122 Fed. 87. In that case there was no argument by the defendant, but the court made a full examination of the matter brought before it in the record, and decided, upon a careful examination of the specification and claims, that there was sufficient in them to constitute invention. Anticipation was the leading defense upon which testimony was offered, but the testimony on this point was vague and unsatisfactory, and was not persuasive to the court. The claims now at issue are as follows:

"(5) An interconvertible couch-bed, comprising two complete interlocking laterally sliding sections, each having all of its parts, including the mattress support, permanently connected, the sections being relatively constructed, and arranged to permit their separation into two independent beds without dismantling either of them.

14. See Patents, vol. 38, Cent. Dig. § 72.