Mettler v. Peabody Engineering Corporation
| Decision Date | 29 April 1935 |
| Docket Number | No. 7553.,7553. |
| Citation | 77 F.2d 56 |
| Parties | METTLER v. PEABODY ENGINEERING CORPORATION et al. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Arthur F. Larrabee, of Los Angeles, Cal., for appellant.
John W. Crandall, of New York City (Hunt, Hill & Betts, of New York City, of counsel), for appellees.
Before WILBUR and GARRECHT, Circuit Judges.
Appellant has appealed from a decree of the trial court dismissing his bill of complaint which alleged infringement by appellees of patent No. 1,440,614 issued to him for a gas burner. The gas burner used by the appellee Los Angeles Gas & Electric Company, which is claimed to infringe the appellant's patent, was manufactured by the appellee Peabody Engineering Company. The trial court sustained the validity of the patent, but held that, in view of the state of the prior art, it should be narrowly construed, and that, when so construed, the appellees' device did not infringe. The patent claim which the appellant asserts was infringed by the appellees' device is claim No. 3 of the Mettler patent, which reads as follows: "In a combustion unit, an open ended air tube, a gas chamber surrounding the walls of the tube, and a block of refractory material abutting against one end of the tube, and the wall of the tube being formed with a series of gas discharge orifices adjacent the block and opening to the aperture in the latter at an inclination to the center line thereof."
The trial court found that in the summer of 1921, several months before Mettler applied for his patent, the appellee Los Angeles Gas & Electric Company had successfully, publicly, and commercially used a gas burner which incorporated and utilized in combination substantially all the elements found in claim No. 3 of the Mettler patent. The trial court also cited patent No. 950,996, issued to Case March 1, 1910, and patent No. 858,189, issued to Leps June 25, 1907.
In the Leps patent, No. 858,189, we have the following elements also contained in claim 3 of the Mettler patent in suit: A "combustion unit, an open ended air tube, a gas chamber surrounding the walls of the tube," "the wall of the tube being formed with a series of gas discharge orifices," or, rather, a single annular orifice which the appellees contend is equivalent to a number of orifices, opening to the aperture in the latter "at an inclination to the center line thereof." The Leps patent does not provide for the following elements of claim 3 of the Mettler patent: "Block of refractory material abutting against one end of the tube and having an aperture opposite the open end of the tube. * * *" However, in the Case patent, No. 950,996, we have an open-ended air tube, a gas chamber surrounding the walls of the tube, a block of refractory material abutting against one end of the tube, and having an aperture opposite the open end of the tube, the wall of the tube being formed with an annular gas discharging orifice adjacent to the block and opening to the aperture of the latter at an inclination to the center line thereof.
These two patents contain every element of the combination of the Mettler patent, and we think the Case patent alone is a complete anticipation of the Mettler patent, if it be conceded that the annular opening from the gas reservoir into the air tube at an angle with the axis of the tube is the equivalent of a series of gas orifices injecting the gas in a series of jets instead of in a continuous sheet. Inasmuch as the appellant's contention that his patent is infringed by the appellees' device is based upon the contention that the two are equivalent, we see no escape from the proposition that the Case patent and the Leps patent anticipate the Mettler device. Appellant's contention of invention in his device is very largely based upon the claim that the combination which he has made produces more complete combustion of the gas, and therefore more economical results, and hence, notwithstanding the fact that all the elements of his combination have been known and utilized, he is entitled to a patent upon the specific combination he has made. The rule with reference to the matter is thus stated in Buchanan v. Wyeth Hardware, 47 F.(2d) 704, 707 (C. C. A. 8): ...
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