99 F.2d 806 (2nd Cir. 1938), 54, Toledo Pressed Steel Co. v. Montgomery, Ward & Co.

Docket Nº:54.
Citation:99 F.2d 806, 39 U.S.P.Q. 410
Case Date:November 07, 1938
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 806

99 F.2d 806 (2nd Cir. 1938)

39 U.S.P.Q. 410




No. 54.

United States Court of Appeals, Second Circuit.

November 7, 1938

Darby & Darby, of New York City (Samuel E. Darby, Jr., of New York City, and Wilber Owen, of Toledo, Ohio, of counsel), for plaintiff.

Anthony William Deller, of New York City (Carl V. Wisner, Jr., of Chicago, Ill., of counsel), for appellee.

Before MANTON, SWAN, and CHASE, Circuit Judges.

MANTON, Circuit Judge.

This suit is for infringement of patent No. 1,732,708 granted October 22, 1929, on an application filed December 26, 1928 for a kerosene burning construction torch. Claims 2, 5, 11 and 12 1 are sued on.

This torch is used as a warning signal on streets to make known obstruction on the highway. The patent states: 'This invention relates to street torches, such as are commonly used for illuminating road obstructions, and usually referred to as construction torches, but more particularly to devices for increasing the efficiency of such

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torches and militating against extinguishment of the torch flame, and an object is to provide a simple and efficient attachment for torches of the above character for increasing the efficiency thereof and materially reducing the liability of extinguishment of the flame by high winds. Another object is to provide a burner so constructed and arranged that liability of extinguishment of the flame by high winds or by rain is reduced to a minimum. * * * '

And further: '* * * It has been found that with the above described construction and arrangement, the oil consumption is materially decreased. It is also found that the amount of wick used is likewise decreased. Another outstanding advantage resides in reducing the liability of extinguishing the flame by high winds or rain.'

Oil consumption by the burner of the patent in suit is reduced more than 50% as compared with its predecessor, the open flame torch; wick consumption which was from three-fourths of an inch to an inch and a quarter each night in the open flame torch was practically eliminated. It is undisputed that appellant and appellee's torches now pass all the tests imposed by the State Highway Departments, none of which are passed by the open flame torch. These advantages are obtained by substituting for the burner of the old open flame torch, which was a wick-tube and wick protruding from the container for oil, a burner in which the end of the wick-tube and wick are enclosed in a metal cap provided with suitable air inlets and flame outlets. The cap is supported on a flange which contacts the wick-tube and transmits heat to the wick-tube and wick to maintain the oil above the flash point and provide under all weather conditions a suitable supply of hydrocarbon vapor which escapes from the flame openings in the metal cap and burns outside the cap. Regardless of the effect of wind and rain on the flame outside the burner, the source of the flame inside the burner is protected and continues to supply the hydrocarbon vapor necessary to feed the flame which is the warning signal.

This patent was litigated in the Sixth Circuit where the Circuit Court of Appeals held it to be invalid. Standard Parts, Inc., v. Toledo Pressed Steel Co., 93 F.2d 336. The court below felt obliged to follow that decision.

This record, however, contains evidence absent in the Standard Parts Case, showing that the art was in search for this accomplishment, that others worked unsuccessfully to solve the problem of producing a torch which would not only be more economical in the use of kerosene, but would remain lighted notwithstanding rain and wind. In the Standard Parts Case, it was said that the problem required no inventive thought. The proof here, not found in the Standard Parts Case, showed widely separate unsuccessful attempts to provide some means which would prevent the flame from being extinguished. Unsuccessful efforts were made over a long period by men skilled in the art of burners. The history of the art, as here shown, demonstrates that the accomplishment was not easy nor apparent nor merely the work of one skilled in the art. Hookless Fastener Co. v. G. E. Prentice Mfg. Co., 2 Cir., 68 F.2d 940, 941.

The open flame torch had been in use as a warning signal for many years. The usual type was a sheet metal container with a wick one and a half inches long; the wick was soaked with kerosene and burned from the sides as well as the top. It was referred to as a 'bonfire of cotton fibre'. High fuel and wick consumption were the consequence. A strong wind would blow the flame away from the wick

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and cool the oil below the flash point, thus causing the flame to go out. If water soaked the wick, it would vaporize and cool the wick below the temperature at which the oil would burn and the flame would go out. Moreover, the flame produced was three or four inches in diameter and sometimes six to eight inches high of irregular shape, flickering and weaving from side to side with changing air currents.

The problem presented was to preserve this open unsteady flame and maintain it under all kinds of weather conditions without enclosing it. By the mechanical combination of parts shown in the patent, the results above referred to as to efficiency and economy were obtained. Kerosene gives off no combustible vapors at ordinary temperature, but must be heated to the flash point which runs up to 150 degrees or 160 degrees F. There is a small protected combustion chamber in the bottom of the cap in both appellant's and appellee's devices, provided with restricted air inlets, so that, when lighted, it has a little chamber where a little air is admitted, and which maintains the temperature of the wick to the point where it will give off vapor. The cap temperature was found on test to run as high as 780 degrees F; the heat from the cap was conducted into the flange and into the tube surrounding the wick, and this heat would supplement the heat from the small flame in the combustion zone and would succeed in maintaining the temperature of the wick tube and the kerosene which would be vaporized and keep the flame going. On tests it was found that high wind velocity did not seem to succeed in eliminating the flame or cooling the kerosene as used in both appellant's and appellee's burners. Both acted alike in that respect and both gave high temperature of feed.

That the problem required more than mechanical skill is demonstrated by...

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