element of the process of Zimmerman's first patent was old. In making glue for coating and sizing paper, and for sticking the coloring material to paper, it was common practice to soak the glue in water until it jellied, and then to melt the jelly by the direct application of steam thereto while contained in the soaking vessel. In making glue for the manufacture of printers' rollers Bingham, by patent No. 412,720, had, in 1889 (21 years before Zimmerman) disclosed a process by which the glue, suspended in open-work trays of wire cloth. or perforated metal, or other like construction, and contained within. an enclosing cylinder, was subjected, through the open-work of the top, bottom and sides of each of the trays, to the direct action of steam, which permeated the mass of glue and melted it, the melted glue passing through the openings in the trays into a funnel-shaped bottom, from which it was conducted into an appropriate receiver—the water of condensation being prevented from mixing with the glue, and collected and conducted away by a drain pipe.

Rowe, by patent No. 631,327, had, in 1899 (more than 10 years before Zimmerman) disclosed a process for melting glue, also for manufacturing printers' rollers, differing from Bingham's process in that the glue was exposed to the direct action of the steam while contained in a revolving, perforated cylinder enclosed in a casing. The molten glue dripped from the revolving cylinder upon inclined plates. There was an outlet pipe for the melted glue, as well as troughs for collecting and a pipe for discharging the water from condensed steam. Bingham in actual practice, although not disclosed by his patent, soaked the glue in water before putting it into his open-work trays for subjection to the steam action; he testified that the soaking process was not referred to in the patent because "that was the only method of melting glue that I knew of"; that he had never heard of glue being melted in a dry state. "All the glue melting I ever knew of in our business, was that of glue that had previously been soaked in water, and it was to melt the glue thus prepared, that this machine was to be used." The record contains nothing to discredit this statement, and it must be accepted as true. In converting raw glue material into liquid glue, to be formed into the dry commercial product, it was common practice to subject the raw material, after first soaking it in water, to the direct action of steam.

[2] The question is not whether the patents in suit are directly anticipated by either of the prior patents mentioned, but whether in view of the prior art the patents involve invention. This question of the presence or absence of invention is one of fact, to be answered in the light of all pertinent considerations. Herman v. Youngstown Car Mfg. Co. (C. C. A. 6th Cir.) 191 Fed. 579, 112 C. C. A. 185; Ferro Concrete Co. v. Concrete Steel Co. (C. C. A. 6th Cir.) 206 Fed. 666, 668, 124 C. C. A. 466; Loose Leaf Co. v. Loose Leaf Binder Co., 230 Fed. 120, 144 C. C. A. 418 (decided by this court December 15, 1915). Referring to the first patent: As already shown, the prior art of melting glue embraced every feature of the process disclosed. True, the fact alone that each feature of a process is old is not enough to invalidate a patent therefor, the order in which the steps of the process are taken is necessary to complete identity (Expanded Metal

Co. v. Bradford, 214 U. S. 366, 29 Sup. Ct. 652, 53 L. Ed. 1034), and the process as a whole is to be considered in determining invention. But all prior patents and all elements of the prior art have a bearing upon the question of fact whether there is invention in the process under consideration. The general considerations applicable to combination claims are pertinent. For the rule relating to such claims see Keene v. New Idea Spreader Co., 231 Fed. 701, 145 C. C. A. 587, decided by this court March 17, 1916. And so it is not necessary to a finding of lack of invention that every element of the process be found in one embodiment of the prior art. Bingham, however (assuming that his glue was jellified), disclosed the complete process of Zimmerman's first patent, for Bingham's open-work trays are plainly the equivalent of the perforated drum bottoms of Zimmerman's patent; and the same result is true of the Rowe patent, provided Rowe also soaked his glue before melting, as Bingham said was the universal practice. True, Bingham's soaked glue was of much heavier consistency than the jelly used in the wood-joining art to which Zimmerman's patent is specially applicable (and presumably the same is true of Rowe's glue), because if used in the manufacture of printers' rollers the glue was necessarily thicker than adaptable generally to wood-joining. It is also true that the glue used for coating, sizing and coloring paper was thinner than required for wood-joining; but the art of melting glue for manufacturing printers' rollers and for making coatings, sizings and colorings for paper is not so remote from that of melting glue for the wood-joining art as to make it irrelevant to the question of invention. And there seems no reasonable doubt that Bingham's apparatus at least would convert glue suitable for the wood-joining industry, if the same kind of jelly were used as employed by Zim

merman.

Taking into account the entire prior art, together with the fact that even for wood-joining glue was invariably made into jelly before melting, and Bingham's testimony that "all glue soaked in water is to a certain extent jellified, but the jelly is harder or softer according to the strength of the glue," we are unable to escape the conviction that applying Bingham's process (used on his stiff, water-treated glue mass) to the thin glue jelly required for the wood-joining art was not invention, whether or not invention might be found but for the disclosures of Bingham and Rowe. In reaching the conclusion that Zimmerman's first patent did not involve invention, we have not overlooked the consideration that it occurred to no one previous to Zimmerman to apply the processes of Bingham and Rowe to melting glue in the wood-joining art. This fact has a bearing upon the question of invention, as has also the fact of the favorable reception of Zimmerman's patent by manufacturers. But neither consideration is decisive; they are merely aids in determining the ultimate question of invention. We may add that it seems not unlikely that a part, at least, of the favor with which Zimmerman's process has been received is due to the apparatus rather than the process. Plaintiff has a patent upon the apparatus, but that patent is not included in this suit. Whether the feature of storing the melted glue in the converter is or is not valuable is immaterial, for it is included in none of the claims.

As to the second patent: We think we should regard its process as differing from the first patent only in the respect that it calls for "as much water as the glue can take up in passing into jelly form❞ instead of "a predetermined quantity of cold water." The claim presents no other feature of difference, and plaintiff's counsel claims no other. Zimmerman admits that it was old, prior to the invention of his first patent to soak glue in as much water as it would take up, and that he intended that under the process of his first patent such course should be taken, provided it would give the correct consistency when melted. The change effected by the second patent was not invention over the first patent. Laumann v. Urschel White Lime Co. (C. C. A. 6th Cir.) 136 Fed. 190, 69 C. C. A. 206; Hyde v. Minerals Separation (C. C. A. 9th Cir.) 214 Fed. 100, 130 C. C. A. 576. Moreover, the process of softening glue (before melting) by making it absorb as much water as it will take up had been disclosed in printed publications several years before Zimmerman's second patent. Were we to consider the fact that the process of the second patent contemplated the soaking of the dry glue in the converting vessel, the patent would be equally invalid.

The decree of the District Court is accordingly affirmed, with costs.

(232 Fed. 871)

FT. PITT SUPPLY CO. et al. v. IRELAND & MATTHEWS MFG. CO. (Circuit Court of Appeals, Sixth Circuit. May 2, 1916.)

1. PATENTS

No. 2776.

328-INVENTION-FLUSHING VALVE MECHANISM.

The Young & Robertshaw patent, No. 925,550, for mechanism for operating flushing valves of water-closet tanks, is for a device operating the same as those of the prior art, the only novelty claimed being in the unitary nature of the mechanism, requiring only a single means of attachment to the tank, and but one hole in the tank wall; and while such device has merit and usefulness, it involves the exercise of only mechanical skill, and is void for lack of invention.

2. PATENTS 34 "INVENTION"-PRIOR ART.

All elements of the prior art have a bearing upon the question whether there is "invention" in the device of a patent, and it is not necessary to a finding of lack of invention that every element be found in one embodiment of the prior art.

[Ed. Note. For other cases, see Patents, Cent. Dig. § 38; Dec. Dig. 34.

For other definitions, see Words and Phrases, First and Second Series, Invention.]

3. PATENTS

~26(1)—INVENTION-COMBINATION OF OLD ELEMENTS.

It is not invention merely to combine into one unitary structure mechanism formerly made in separate pieces, so long as each element operates in the same way to produce the same result.

[Ed. Note. For other cases, see Patents, Cent. Dig. §§ 27-30; Dec. Dig. 26(1).]

4. PATENTS 36-INVENTION-QUESTION OF FACT.

The question of invention is at the last one of fact.

[Ed. Note.-For other cases, see Patents, Cent. Dig. § 40; Dec. Dig. ~36.]

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 147 C.C.A.-5

Appeal from the District Court of the United States for the Eastern District of Michigan; Arthur J. Tuttle, Judge.

Suit in equity by the Ft. Pitt Supply Company and another against the Ireland & Matthews Manufacturing Company. Decree for defendant, and complainants appeal. Affirmed.

F. W. Winter, of Pittsburgh, Pa., and A. H. Graves, of Chicago, Ill., for appellants.

Wm. M. Swan, of Detroit, Mich., for appellee.

Before KNAPPEN and DENISON, Circuit Judges, and EVANS, District Judge.

KNAPPEN, Circuit Judge. Suit for infringement of United States patent No. 925,550, June 22, 1909, issued to plaintiff Ft. Pitt Supply Company as assignee of Young & Robertshaw. Plaintiff Frost Manufacturing Company is licensee under the patent. The defenses are invalidity and lack of infringement. On hearing upon pleadings and proofs the district judge held the patent not infringed, and entered decree dismissing the bill. The appeal is from this decree.

[1] The patent relates to mechanism for operating the familiar type of water-closet flush valve, which is closed by a vertically operable plunger, and opened by the lifting of the plunger through the raising of a horizontal arm connected with the lift rod. We reproduce the patent drawings, reduced in size:

The mechanism, so far as necessary to be stated, is seen to be this: A plate 3 on the inner side of the tank wall has mounted thereon a valve-operating lever 9 fulcrumed at 8, and having cam faces 20 and 21; from the opposite side of the plate 3 a sleeve 4, integral

with the plate, extends through the tank wall 2, the outer end of the sleeve being threaded to receive a cap nut 5, which serves to secure the plate to the tank and to give finish on the outside of the tank; a projection 6 on the plate 3 enters a suitable hole in the tank wall and prevents the plate from turning; within the sleeve 4 is carried from the outside the lever 13 (operated by the handle 14) which actuates a sleeve 15 fitted upon the squared inner end of the actuating lever 13; the turning of the handle 14 actuating the lever 13 causes the roller 19 on the sleeve 15 to contact with the cam faces 20 and 21 of the lever 9, so tripping the lever and thereby raising the rod 10 which lifts the plunger.

The claims in suit are 1, 2, 4, 5, 6, 7, and 9. Claim 4, which is the broadest, is as follows:

"4. Mechanism for operating flushing valves, comprising a plate provided with a threaded sleeve projecting therefrom and arranged to extend through the wall of the tank and with a lever fulcrum center at the side of said sleeve, a lever fulcrumed on said center, a rotatable actuating shaft projecting through the sleeve and operatively connected to said lever, and a finishing nut on the outer end of the sleeve serving to secure the fitting to the tank and conceal the opening."

The main question is whether the patent involves invention. The art is old and crowded. No novelty is claimed in the flushing mechanism itself. Not only was the plunger valve old, but there was nothing novel in actuating the plunger through the tilting of a fulcrumed horizontal bar within the tank connecting with a vertical plunger rod; nor in rocking the bar by means of a handle on the outside of the tank, swinging in both directions-a method specially adapted to tanks of the low-down type. Indeed, Tilden (No. 821,002) had in 1906 shown substantially the complete flushing valve operating mechanism of the patent in suit, save only the unitary feature hereafter discussed. While Tilden did not employ a cap nut for securing the fitting to the outside of the tank, there was no invention in its use; it was common in the arts generally, and is found specifically in the patent to Malcolm, No. 468,725, which, however, was for a tilting tank, and had no flush valve. Nor was there invention in the use of the threaded sleeve extending through the tank-wall and carrying the operating lever. That is an ordinary mechanical expedient. It is found in fact in Malcolm's flushing tank device. There was likewise no invention in employing the device for preventing the movement of the operating shaft too far in either direction. In fact, invention is not claimed with respect to either or all of the features mentioned.

The feature relied upon as differentiating the patent in suit from the prior art, and as constituting invention, is the unitary nature of the mechanism, in that it has only a single means of attachment to the tank, which means of attachment carries both elements of the operating mechanism, including the integral sleeve. As stated in the patent specification, "both the center of the operating shaft. 13 and also the center on which the valve operating lever 9 is fulcrumed are carried on" one fitting, viz. the plate 3 on the inner side of the tank-wall; whereas, as also said in the specification, "with