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Syllabus.

BUSSEY & Another v. EXCELSIOR MANUFACTURING

COMPANY.

EXCELSIOR MANUFACTURING COMPANY v. BUS

SEY & Another.

APPEALS FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE

EASTERN DISTRICT OF MISSOURI.

Argued January 8th, 1884.-Decided January 21st, 1884.

Patent.

The first four claims of reissued letters patent No. 3,815, granted to Esek

Bussey and Charles A. McLeod, February 1st, 1870, for a “cooking-stove,” the original patent, No. 56,686, having been granted to said Bussey, as inventor, July 24th, 1866, and reissued to him, as No. 3,649, September 28th, 1869, namely : “1. A diving-flue cooking stove with the exit-flue so constructed as to inclose on the sides and bottom the culinary boiler or hotwater reservoir B ; 2. A diving-flue cooking-stove with the exit-flue constructed across the bottom and up the rear upright side of the culinary boiler or hot-water reservoir B ; 3. A diving-flue cooking-stove constructed with an exit passage, F, below the top of the oven, and an exit-flue, E E', in combination with an uncased reservoir, B, attached to the rear of the stove, and placed just above such exit passage, and so arranged that the gases of combustion, in passing through such exit-flue, will impinge upon or come in direct contact with said reservoir, substantially as and for the purposes bereinbefore specified ; 4. An exit-passage, F, constructed in the rear of a diving-flue cooking stove and below the top of the oven, in combination with an uncased reservoir, B, attached to the rear of the stove, the bottom of which reservoir is also below the top of the oven, and so arranged that the gases of combustion will come in contact with, and heat such reservoir by, a direct draft from the fire-box to the smoke-pipe," are limited to a structure in which the front of the reservoir has no air space in front of it, and in which the exit-flue does not expand into a chamber at the bottom of the reservoir, and in which the vertical part of the exit-flue

does not pass up through the reservoir. Hence, those claims are not infringed by a stove in which, although there are

three flues, and an exit-passage below the top of the oven, and a reservoir the bottom of which is below the top of the oven, no part of the rear-end vertical plate is removed so as to allow the gases of combustion to come into direct contact with the front of the reservoir, nor is any such plate employed as the plate w w of the patent, but there is a dead air-space between the rear plate of the flue and the front of the reservoir, and the exit. flue is not a narrow one, carried across the middle of the bottom of the

Opinion of the Court.

reservoir, as in the patent, but the products of combustion, on leaving the flue space, pass into a chamber beneath the reservoir, the area of which is co-extensive with the entire surface of the bottom of the reservoir, and the vertical passage out of such chamber is not one outside of the rear of the reservoir, but is one in and through the body of the reservoir, and remova.

ble with it. The claim of letters patent No. 142,933, granted to David H. Nation and

Ezekiel C. Little, as inventors, September 16th, 1873, for an “improvement in reservoir cooking-stoves," namely, “1. The combination, with the backplate I of the cooking-stove A, of the reservoir C, arranged on a support about midway between the top and bottom plates of the stove, and the airchamber 6 between the stove back and reservoir front, open at the top, and communicating with the air in the room, substantially as and for the purposes set forth ; 2. The combination, with the stove A and reservoir, C, of the small opening a, the sheet-flue G under the entire bottom of the reser

purposes herein set forth,” are void for want of novelty. The claims of letters patent No. 142,934, granted to said Nation and Little,

September 16th, 1873, for an “ improvement in reservoir cooking-stoves," namely, “1. The detachable base-pan or flue-shell D, attached to the body at a point near the centre of the back plate of the stove, by means of hooks a a cast on the base-pan, and pins b b on the stove body, substan. tially for the purposes herein set forth ; 2. The portable reservoir F, with the flue E in the rear side, in combination with the portable base-pan or flue-shell D, substantially as and for the purposes herein set forth ; 3. The combination, with a three-flue stove having damper H arranged as described, of the portable base-pan or flue shell D and warming closet G, all substantially as and for the purposes herein set forth,” are void for want of

novelty. There was no invention, in claim 1, in using, to attach the base-pan, an old

mode used in attaching other projecting parts of the stove. Claims 2 and 3 are merely for aggregations of parts and not for patentable

combinations.

Mr. Charles J. Hunt for Bussey & Another.
Mr. S. A. Duncan for Excelsior Manufacturing Company.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

This is a suit in equity brought in the Circuit Court of the United States for the Eastern District of Missouri, by Esek Bussey and Charles A. McLeod against the Excelsior Manufacturing Company of St. Louis, a corporation, for the infringe ment of three several letters patent, being (1) reissue No. 3,815, granted to the plaintiffs, February 1st, 1870, for a “cooking

Opinion of the Court.

September 14, granted

reservoir con

stove,” the original patent, No. 56,686, having been granted to said Bussey, as inventor, July 24th, 1866, and reissued to him, as No. 3,649, September 28th, 1869; (2) letters patent No. 142,933, granted to David H. Nation and Ezekiel C. Little, as inventors, September 16th, 1873, for an “improvement in reservoir cooking-stoves ;” (3) letters patent No. 142,934, granted to said Nation and Little, as inventors, September 16th, 1873, for an “improvement in reservoir cooking-stoves.” After an answer and proofs, the Circuit Court made a decree finding no infringement of No. 3,815 and dismissing the bill as to that patent; decreeing that the other two patents were valid and had been infringed as to all their claims; and awarding a perpetual injunction as to those claims and an accounting before a master. The master reported one cent damages. The plaintiffs excepted to the report, claiming $14,972 damages. The court confirmed the report and made a decree accordingly, which also provided that the entire costs to be taxed in the suit should be divided and that the plaintiffs should pay of them and the defendant 4. Both parties appealed to this court.

The specification of No. 3,815 says:

“Figure 1 is a side elevation ; Fig. 2, a rear elevation ; Fig. 3, a plan ; Fig. 4, a vertical section at the line zz; Fig. 5, a front view of a section at the line y y; and Fig. 6, a top view of a partial section at the line x x, all of a cooking-stove embodying my said invention, like parts being marked by the same letters in all the figures, and the arrows therein being indicative of the courses in which the gases of combustion pass through the stove. One part of my invention consists in arranging a culinary boiler or hot-water reservoir in the rear of the oven of a diving-flue cooking stove, with an exit-flue extending down the front, under the bottom and up the rear of the said reservoir, substantially as hereinafter described and specified. It also consists in arranging a culinary boiler or hot-water reservoir in the rear of the oven of a diving-flue cooking-stove, with an exit-fiue leading from some point in the rear of the vertical flue or flues below the top of the said oven, and continuing under the bottom and up the rear side of said reservoir, substantially as hereinafter described and specified. It also con

Opinion of the Court.

sists in the arrangement of a diving-flue cooking-stove, with an exit-passage constructed in the vertical rear flue or flues thereof, and below the top of the oven, in such a manner that the gases of combustion, after passing through such exit-passage, will impinge

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upon or come in contact with the bottom or sides of a reservoir placed in the rear of the stove, and just above said exit-passage, substantially as hereinafter described and specified. It also consists in the employment of a thin plate or sheet of metal between the front plate of the reservoir and the rear-end vertical flues of

Opinion of the Court.

the said stove, substantially as shown and specified. In illustration of my invention, the aforesaid drawings represent a cooking. stove having an oven, A, a culinary boiler or hot-water reservoir, B, arranged opposite to the rear upright side or end d of the oven, and an exit-flue, E E', extended from the central vertical flue K of said stove at a point below the top of the oven, under or across the bottom g of the reservoir, and from thence up along the rear upright side of said boiler or reservoir to the draft-pipe I. For the purpose of allowing the boiler to heat more readily, a portion of the rear-end vertical plate of said stove is removed, so as to uncover the upper portion of the rear-end vertical flues, and the front of the boiler is attached to the rear of said flues, in the manner shown and described in my reissued patent of July 24th, 1866. Between the inner side of the boiler B and the rear-end vertical fues K and L L', a plate may be employed, indicated by dotted line w w. The object of this plate is as follows: It has been ascertained by experience that when, during the use of the oven for baking purposes, a large quantity of cold water is suddenly poured into the reservoir, and there is nothing between the front of the boiler and gases of combustion passing through the rearend vertical flues, the heat of the said gases will be so much absorbed by the reservoir as to sensibly cool the oven and interfere with the process of baking. To obviate this I employ the thin plate w w, placed between the front of the reservoir and the said rear-end vertical flues, and which, while it allows sufficient heat to pass through it to aid in heating the boiler, protects the front thereof from the direct impact of the gases of combustion, and preserves an equable heat in the oven. In case the said plate is dispensed with the inner side J of the said boiler will form a part of the lateral rear casing of the said rear-end vertical flues, and will be heated by direct contact with the gases of combustion as they pass down and up the same. M is the fire-box, and N and R the top and bottom fues of said stove. The operation of my said invention is as follows : A fire being kindled in the fire-box M, and the damper Q at the top of the oven being open, so as to allow of a direct draft, the gases of combustion from the said firebox will pass down the middle vertical flue K, through the exitpassage F and exit-flue E E', to the smoke-pipe I, heating the contents of the reservoir in its passage through the exit-flue, as aforesaid. By this mode of construction I am enabled to obviate what

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