Smeeth v. Fox Copper & Bronze Co.

• Decision Date: 28 March 1904
• Docket Number: 40.
• Citation: 130 F. 455
• Parties: SMEETH et al. v. FOX COPPER & BRONZE CO. et al.
• Court: U.S. Court of Appeals — Third Circuit

130 F. 455

SMEETH et al. v. FOX COPPER & BRONZE CO. et al.

No. 40.

United States Court of Appeals, Third Circuit.

March 28, 1904

Appeal from the Circuit Court of the United States for the Western District of Pennsylvania.

The following is the opinion of the court below (Buffington District Judge);

This bill was filed by the Best Manufacturing Company, charging the Fox Copper & Bronze Company with threatened infringement of letters patent No. 452,168. On application for a preliminary injunction, this court on February 12, 1901 granted the same. Since then a large amount of testimony has been taken in this and other cases involving the same patent. The device of Scott was meritorious, and has proven a highly useful factor in prolonging the life of a furnace bosh subjected to the rapid driving of modern firing. We will not enter into a discussion of the prior art. It suffices to say that, after a careful study thereof, we are of opinion that the cooling bosh devised by Scott was not shown in the prior art, and that, restricted to a proper construction, all of his claims, except the sixth, involved patentable novelty. The patent, then, being deemed valid, we are not required to express any views upon the question whether Daniel Fox, and through him the other respondents, are estopped to deny the validity of this patent. The proofs show that the respondent company offered to furnish to the Columbus Iron Company and the Globe Iron Company bosh plates of the design shown in the drawing on page 352 of the record. In both cases the bosh plates were not sold or manufactured, but this was owing to the fact that the prospective purchasers declined to buy and incur risk of litigation. The respondent was willing to furnish plates of the design of said drawing. It is well settled that threatened infringement affords ground for relief. Poppenhauser v. N.Y. Gutta-Percha Comb Co., 2 Fish.Pat.Cas. 74, Fed. Cas. No. 11,281; Sherman v Nutt (C.C.) 35 F. 149; Sessions v. Gould (C.C.) 49 F. 855. White v. Heath (C.C.) 10 F. 291.

It remains, then, to inquire whether the structure of the drawing infringes the Scott patent. We are of opinion it does. The proposed water-cooled bosh plate was adopted to set in a recess in a furnace wall. It was freely removable therefrom. To that extent it embodied the elements of the claim. Did it have the remaining elements of 'a water passage extending through it for the passage of a current of water and inlet and outlet pipes'? We think it did. From the inlet pipe the water is carried in a closed pipe to the rear of the plate, and then it strikes an acute-angle projecting rib, and is divided into two streams. These streams are carried to the sides of the nose. Here all semblance to the Peters plate, which we have considered in another of these cases, ends. Instead of the water flowing into the general body of the bosh, and finding an unrestrained course to the outlet, it is confined by a cross-diaphragm jutting from each side of the bosh. This carries the two currents together, and the united current passes through the narrow water passage formed by the ends of the diaphragms. But even here the water is not permitted to pass into an open reservoir, but a long diaphragm, placed opposite the last-mentioned opening, serves to confine and direct the water in two streams to points opposite the two outlets. It will thus be seen that the bosh plate in question has interior structural water passages extending...