American Lava Co. v. Steward
| Decision Date | 24 July 1907 |
| Docket Number | 1,642. |
| Citation | 155 F. 731 |
| Parties | AMERICAN LAVA CO. et al. v. STEWARD et al. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Charles Neave, for appellants.
Louis C. Reagener, for appellees.
Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.
This appeal brings before us the questions of the validity and of the infringement of letters patent No. 589,342, granted to E J. Dolan August 31, 1897, for improvements in tips for acetylene gas burners, on an application filed February 18, 1897, which patent the complainants, the appellees here, claim to own by assignment. The claims of the patent here involved are those numbered 1, 2, and 3. There are two others, numbered 4 and 5. The first and second claims are for the process of 'burning acetylene gas.' The third is for the apparatus employed. The defenses were that these claims were invalid because of anticipation of the invention, and that the defendant did not infringe. The court below, while admitting the case to be 'close,' decreed in favor of the complainants. The doubt seems to have been upon the validity of the patent in respect to the claims involved. The appellant rests its contention that the claims are invalid upon several grounds. It will be convenient to consider first the third claim, which is for the burner, and then the other two, which relate to the process. In the specification the patentee, reciting that a difficulty had been experienced in burning acetylene and other gases rich in carbon from the accumulation of deposits at the orifice of the burner whereby the passage was clogged and the flame distorted, proceeds to state that he proposes the use of two independent gas jets, mounted and inclined toward each other so that the jets of gas with the air which has been drawn into the gas tubes through openings in the sides thereof, by the swift upward movement of the gas, shall be made to clash together at the point of combustion, and produce a broad flat flame. The structure of the members of the burner which he proposes to use so mounted and inclined can be best explained by reproducing figure 1, which is a central longitudinal section thereof and figure 2, which is a modification.
(Image Omitted)
A is the body of the 'tip,' or burner, secured to the gaspipe, B. C is a constriction of the passageway for the gas leading from the chamber, D, into the chamber, E, at the upper end of which is the extremity of the tip. This constriction, C, is located at or near the longitudinal center of the burner. The letters, a a, represent inclined air ducts leading from the open into the gas chamber, E. We shall have occasion to refer to some further particulars of the specifications later on. Of this construction he says:
The third claim is this:
The grounds on which it is insisted that the patent is void in respect of this claim are, first, that it was anticipated by prior patents; second, that the description is too indefinite to distinguish it from the prior art; and, third, that the specifications were altered in essential particulars by amendment while the application was pending in the office, so as to bring in entirely new matter which is now relied on, and that the new matter was not verified by the oath of the applicant. We think that these objections are well taken. In respect to the first, the proof makes it clear that for some time prior to Dolan's supposed invention several acetylene gas burners had been invented and patented, some in this country, and some abroad, which contained the substance of all that Dolan described in his patent. By this we do not mean to say that the theory which he puts forward in respect to the mode of operation of the means he suggests had been definitely stated, but that burners had been devised and patented which embodied the means described by him, and that they were adapted to accomplish the same result. The French patent to Bullier of April 20, 1895, and his first and second certificates of addition, dated June 29, 1895, and June 12, 1896, respectively, furnish the most complete anticipation; but, before referring to the invention there disclosed, we will notice some other patents, to find what ideas and forms had been suggested by them for the construction of gas burners. A common and well-known type of such burners was the Bunsen burner, which consisted of a cylindrical chamber into which the gas was pressed through a small aperture at the bottom in a fine jet. Small openings were made in the sides of the cylinder through which air was drawn by the upward rush of the gas through the cylinder to supply the oxygen required for combustion. The theory of this operation was that the gas and air were commingled before reaching the place of combustion at the upper end of the chamber. Duplex burners-- that is, burners in which two streams of gas and air combined are made to impinge upon one another at the place of combustion-- were also old. In a French patent granted to M. Letang in 1896, for a burner of acetylene gas for lighting, the inventor states his purpose to provide means for preventing the heating of the outlet and its clogging by deposits resulting therefrom. One of the means by which he proposed to do this was to cool the gas outlets by means of a current of air introduced through a circular slot in the chamber above the constricted tube from which the gas jet ascends to the upper orifice. Dolan says he does this to 'cool the outside of the flame. ' Letang, with apparently more correctness, says he thereby 'cools the gas outlet opening.' We pause here to note that if the tendency of the circular column of gas when drawing in air upon its surface is to encircle itself in an envelope of air, and that they pass out of the burner in that relation, as is contended in behalf of the Dolan patent, it would seem as though Letang's device was adapted to perform that function. If his chamber was long, the columns of gas and air would not preserve their integrity of shape so well, but it would be a difference in degree only, and could be improved by making the chamber shorter, or locating the air slot nearer the orifice. This is a subject to be referred to later.
A patent to Bullwiller was granted by the United States on April 19, 1898, on an application filed January 25, 1897, for 'improvements in burners for acetylene gas,' which had been patented in Switzerland November 28, 1896. This invention was intended for the same purpose; that is, to obviate the formation of deposits about the orifice of the burner. His plan was to locate what he calls a 'hood' above the orifice of the body of the burner, with an opening through it above the orifice of the body of the burner, and yet so near it that the jet of gas would go through it without interruption, and the air would be taken in through the circular opening between the top of the body of the burner and the hood, and the combustion take place on the outer surface of the hood. In this way the air would form an envelope for the gas jet, if Dolan's theory is correct, by the same mode of operation. In order to fulfill the theory of Dolan's patent, his air ducts should be close to the orifice over which combustion takes place. But Bullwiller's hood is integral with the body of the burner, and is essentially a part of it. The whole is properly styled a burner and the improvement is of a 'burner.' The principle or mode of operation of it seems to be the same as Dolan's if the theory of Dolan's patent is well founded. Figure 3 shows one of his forms.
(Image Omitted)
Bullier's patent of 1895 and his additions of that and the following year were for 'a species of tip for lighting by acetylene and other gases rich in carbon. ' It is well to note that in Dolan's and Bullier's patents, as well as in other patents, the words 'tip' and 'burner' are used to designate the same thing, and not the orifice thereof. Figures 3 and 5 of Bullier's original patent and Figure 1 of his addition of June 12, 1896, are here shown.
(Image Omitted)
In all of the figures a a are the channels for the gas jets, and b b the air ducts. In figure 1 of the addition, at a point between a and b, the constriction of the pipe leading into the chamber is shown as in Dolan's and in other burners. In his original patent he says:
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