37 F.2d 611 (W.D.Pa.), 2210, James B. Clow & Sons v. Automatic Gas-Steam Radiator Co.

Docket Nº:2210.
Citation:37 F.2d 611, 3 U.S.P.Q. 164
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 611

37 F.2d 611 (W.D.Pa.)

3 U.S.P.Q. 164




No. 2210.

United States District Court, W.D. Pennsylvania.

Brown & Critchlow, of Pittsburgh, Pa., and Wilkinson, Huxley, Byron & Knight, of Chicago, Ill., for plaintiff.

Byrnes, Stebbins & Parmelee, of Pittsburgh, Pa., for defendant.

THOMSON, District Judge.

Plaintiff, who is the owner of the Eugene V. Daily patent, No. 1,580,651, for a gas-fired radiator, sues for infringement of claims 1, 2, and 3. The ownership of the patent and the manufacture and sale of defendant's alleged infringing device, after the issuance

Page 612

of the patent, April 13, 1926, and before the bringing of suit, are admitted.

Defendant's radiators were of two forms. When the suit was brought, the plaintiff knew of defendant's manufacture of radiators of the specific construction represented by plaintiff's Exhibit C, and learned only just before the trial of defendant's discontinuance of that particular form of radiator, and the adoption of the particular construction disclosed by Defendant's Exhibit 4. Both forms of radiator were manufactured by defendant after the issuance of the patent and before the bringing of suit, and plaintiff claims that both devices infringe.

In the trade, there are two general forms of gas-fired appliances for heating buildings. In one, the heat is generated at one point, as a steam-heating plant in the basement, and is conducted through pipes and liberated through radiators, in the various rooms. In the other, the self-contained heaters, the gas is burned and the heat liberated within the same appliance. This latter class is again divisible into two forms: One, as in the ordinary gas stove, in which the heat of the gas flame is transferred directly to the atmosphere surrounding the appliance. In the other, the heat from the gas flame enters into an intermediate vehicle, which transmits the heat to radiating surfaces. Thus, in gas-fired steam radiators, the heat generated by the gas flame is imparted to water, which is turned into steam, and the steam condensing in the radiator, gives up heat to radiating surfaces.

The design, which is involved here, is a gas-fired heater in which water is the agent for transmitting the heat to the rooms. The appliance shows that this method provides a more uniform temperature throughout the room than those in which the heat is transmitted directly from the flame, which causes a concentration of heat in the vicinity of the device itself. Not only is the manner of heat different, but the problems presented in design and construction are also different.

Radiators burning gas were found to be desirable from the standpoint of utility, convenience, economy, and cleanliness. The early gas-fired radiators were known as vented, or those connected with a flue, and unvented, those having no such connection; in the latter, the products of combustion were discharged directly into the room. This latter method had many disadvantages. In natural gas territories when the sulphur in the gas was burned, it had a smarting effect on the organs of respiration. In northern climates, where the percentage of moisture was high, the addition of moisture from the burning gas caused condensation or precipitation on the windows and walls of the room, which was very objectionable. These, and other resulting conditions, made the vented radiator much superior to the unvented. But in the vented type a serious problem was presented in venting. In the early type of vented radiators, it was found that, with an ordinary normal draft up the chimney, the operation of the burner was usually satisfactory. But in practical operation the draft in an ordinary chimney varies from a strong outgoing draft up the chimney to a strong incoming draft passing back down the chimney. When a strong out draft was suddenly created, the tendency was to pull or lift the flame off the burner, causing the gas to be only partially burned, or the flame to be extinguished. Dangerous results also followed, where a back draft suddenly rushed down the chimney, and the rising products of combustion were forced back onto the gas flame, causing a partial smothering of the flame, resulting in an incomplete combustion and the formation of poisonous carbon monoxide gas, or the flame would be extinguished entirely, allowing the unignited gas to escape into the room.

To meet these varying conditions, there was a definite demand for a satisfactory vented radiator; but no satisfactory type appeared prior to the Daily type of radiator, covered by the patent in suit, application for which was filed in August, 1922, and the patent issued in April, 1926. This radiator appears to be the first to provide a practical vented gas-fired steam radiator, equipped in such a manner as to perform properly under varying conditions of installation and use, and under varying conditions of draft. This radiator appears to have been alone in the field from 1922 until 1928, when defendant's radiator, which is claimed to infringe, appeared.

Both the plaintiff's and defendant's radiator comprise a plurality of sections, the central one of which forms a vent section for the entire radiator. This section, marked 2, in Figure 1 of the plaintiff's patent, is connected with a flue, and the products of combustion from the entire radiator pass outwardly through the flue, which is connected with this section. Thus both are vented radiators, both are vented through the flue connection, which leads from section 2, and this section, though specially constructed in defendant's radiator,...

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