Heberlein v. OPHARDT

• Decision Date: 09 January 1940
• Docket Number: No. 62.,62.
• Citation: 31 F. Supp. 306
• Parties: HEBERLEIN v. OPHARDT et al.
• Court: U.S. District Court — District of Colorado

31 F. Supp. 306

HEBERLEIN v. OPHARDT et al.

No. 62.

District Court, D. Colorado.

January 9, 1940.

Martin E. Anderson and Dudley W. Strickland, both of Denver, Colo., for plaintiff.

W. A. McGrew, of Denver, Colo., and G. H. Bradfield, of Greeley, Colo., for defendants.

SYMES, District Judge.

This is a patent suit based on United States letters patent No. 2,144,491, granted January 17, 1939 to plaintiff, George J. Heberlein, application filed April 29, 1937, for certain new and useful improvements in weed burners.

The prayer is (a), said letters patent be declared valid and plaintiff to be the lawful owner thereof; and (b), the defendants be adjudged to have infringed claim 6 thereof.

The defendants plead the general issue and gave the statutory notice of the following defenses, that; (1), the burner defined in claim 6 of the patent in suit had been sold to the public and offered for sale to the public for more than two years prior to plaintiff's application; (2), the burner defined in claim 6 had been in public use for more than two years prior to plaintiff's application; (3), the plaintiff was not the original or first inventor or discoverer of the device defined in said claim 6, etc., and (4), the patent as defined in claim 6 has been patented, or described in certain patents and publications prior to plaintiff's supposed patent, etc. If any one or more of these matters be found for the defendants judgment shall be rendered for them with costs. Rev.Stats. § 4920, Tit. 35 U.S.C.A. § 69.

In his patent plaintiff describes a gasoline torch for use as a weed or cactus burner capable of manual operation, by a farmer for instance for burning weeds, grasshoppers, etc., light enough to be easily carried yet able to stand rough usage, a feature, according to the patent, not present in any of the prior art burners described in the 10 prior patents it lists.

His assembly discloses a convenient cylinder fuel tank with an air pump employed to put air pressure upon gasoline or other suitable fuel contained in the tank, and force it through a flexible connection to a feed pipe handle and on into the coil generator and burner. A shoulder strap is provided for carrying the same.

The patented device really begins with the feed pipe handle, made of a convenient length of tubular iron pipe that will carry the fuel and terminating in a cross tubular piece to form a "T"; a plurality of flexible, tubular coils of copper or brass, capable of being bent into so-called generator coils without splitting, each of which is attached to an end of the T-shaped cross-piece.

As the gasoline or other fuel is fed to the generator coil through the T-shaped feed handle, it first passes to the front end of the coil and then around and around through the coils to the back end of the coil and out through a hole or burner. By the time the fuel reaches the burner it is vaporized and mixes with the necessary air to support combustion. The burner is so arranged that it throws a big flame forward through the coils and out the open end of the housing, thus heating the coils and vaporizing the fuel therein.

For practical operation a housing around the coils is necessary to protect the flame from wind and cold. The particular housing adopted by Heberlein consists of four pieces of sheet metal clamped together in roughly rectangular form. The front end is wide open and extends far beyond the front end of the generator coils with sufficient clearance from the sides of the coils to afford proper ventilation and combustion, but not enough to permit the wind to blow in and interfere with the operation of the burner. The opposite end of this housing tapers to a small opening about the centrally located feed handle and admits, with the aid of small holes in the housing, sufficient air for proper combustion and to cool the feed handle. The patentee calls attention to housings described in prior patents, round, square, circular, etc., which are attached to the generating coils only. He claims merit and an advance in the art for his housing because it, unlike the others, is firmly supported by being clamped to the feed handle as well as to the generating coils, thus overcoming what he says is an inherently weak point in the other constructions.

In claim 6 he refers to his housing as longitudinally movable on the feed handle. This is possible, provided the operator first unscrews and releases the two clamps described. This feature has merit in that it permits the coils and burner to be exposed for the purpose of cleaning or repair, etc.

Plaintiff claims novelty in (1), the spacing of the hood or housing from the generating coils. (2), the longitudinal adjustability of the housing to expose the discharge nozzle to clean or repair. (3), the spacing of the hood from the handle to prevent heat exchange.

At the most these are but modest advancements in the art, not distinct steps forward, merely perfections or refinements of a known structure. The rule requires such claims to be narrowly construed. Railroad Supply Co. v. Elyria Iron & Steel Co., 244 U.S....