XXth Century Heating & Ventilating Co. v. Taplin, Rice-Clerkin Co.

• Decision Date: 07 June 1910
• Docket Number: 2,012.
• Citation: 181 F. 96
• Parties: XXTH CENTURY HEATING & VENTILATING CO. v. TAPLIN, RICE-CLERKIN CO.
• Court: U.S. Court of Appeals — Sixth Circuit

181 F. 96

XXTH CENTURY HEATING & VENTILATING CO. v. TAPLIN, RICE-CLERKIN CO.

No. 2,012.

United States Court of Appeals, Sixth Circuit.

June 7, 1910

This is an appeal of complainant below as assignee of G. Maag patentee, from a decree dismissing the bill of complaint. The suit was for alleged infringement of letters patent on a furnace grate No. 707,855, issued to Maag August 26, 1902. It was held that the defendant had not infringed. It is stated in the specification that '* * * the objects of my invention are to produce a grate which can readily and easily be cleared from accumulated ashes and the like, and one in which all parts are readily accessible; and a further object is to make the front portion of the grate capable of being lowered when desired, and finally to pivot the grate so that its entire surface is easily capable of being rotated.'

The drawings accompanying the specification are as follows:

(Image Omitted)

These drawings may be easily interpreted with the aid of a slight addition to a short description furnished by appellant's counsel, who states that the construction of the patent '* * * consists of a circular grate made in two sections pivotally hinged together, the rear section, 4, of which is always retained in horizontal position, while the front section, 5, is hinged to the rear section and provided with a shaker arm, 9, so that said front section can be lowered or inclined sufficiently to permit of the cleaning out of clinkers without dumping the contents of the firepot. The entire grate oscillates during the ordinary shaking operation about a pivot-pin, 6, on the under side of the rear section 4, which is journaled in a bearing, 3, at the front end of a fixed supporting-arm, 2, beneath the grate.'

The hinged section 5 and its shaker arm, 9, are supported alike in their horizontal and lowered positions by a swinging bail 11. The swinging bail is mounted in the doorway of the ash-pit on journals, 10. When the bail is in its normal position the arm, 9, and the entire upper surface of the grate are in one plane. It is stated in the specification: 'The dumping portion, 5, of the grate is lowered into the position shown by dotted lines in Fig. 3 by giving a semirotation to the bail, 11, which permits the arm, 9, and the dumping portion to be lowered or inclined toward the doorway of the ash-pit, but retains it there from complete descent to the ground line.'

The letters patent as issued contain two claims:

'1. The combination in a grate for furnaces and stoves, consisting of a two parts grate pivotally hinged together, a pivot for the entire grate mounted on one of said portions, an arm mounted on the other portion and means as a swinging bail to vary the inclination of one of said portions.

'2. The combination in a grate for furnaces and stoves of a two-part grate a lever mounted on one of said parts a swinging bail mounted in said ash-pit arranged when swung in one position to keep said grate level, and when swung in the other direction to lower one of the portions of said grate into an inclined position.'

W. A. Owen, for appellant.

G. W. Rea, for appellee.

Before SEVERENS, WARRINGTON, and KNAPPEN, Circuit Judges.

WARRINGTON Circuit Judge (after stating the facts as above).

The court below regarded the invention in suit as of doubtful patentability and at most as entitled only to a narrow construction. The alleged infringing device was never patented. It is not necessary to describe defendant's grate further than to say that it is a two-part grate, and, it must be said, is similar in construction and operation to the patent in suit, except as to the method of sustaining and operating the projecting shaker arm. The point of difference between the two devices upon which the trial court rested its decree of noninfringement, was in the means adopted respectively for sustaining in horizontal position and also in lowering the dumping portions and shaker arms of the two devices. The dumping portion and the shaker arm of defendant's grate are held in normal or horizontal position by the co-operation of a hook-shaped lug, cast as part of the upper surface of the shaker arm, with a segmental flange cast integrally with the upper and exposed surface of the ash-pit. The flange is long enough to admit of rotating the grate by moving the arm back and forth while its lug engages the flange; but when the arm is moved beyond either end of the flange, there is nothing to prevent the arm from dropping to the ground line.

In determining the scope of the patent in suit and its alleged infringement, it is necessary under one of the defenses set up in the answer to examine into the history of the application as it is revealed by the file wrapper of the Patent Office. Maag's original application contained nine claims, as follows:

'1. A grate for furnaces and stoves consisting of two parts pivotally attached to one another, one of said portions capable of being inclined, the other portion being pivoted to permit horizontal rotation to both portions in unison, substantially as shown and described.

'2. The combination in a grate for furnaces and stoves, of an ash-pit, an arm projecting into said ash-pit, a bearing mounted in the end of said arm, a grate made in two pieces, one whereof is arranged to pivot on the said bearing, trunnions on said pivoted portion, and means to connect said other portion of said grate with said pivoted portion.

'3. The combination in a grate for furnaces and stoves consisting of two portions pivotally united, means to sustain one part of said grate, and means to permit one part of said grate to be inclined downward.

'4. The combination in a grate for furnaces and stoves of an enclosing ash-pit, a bearing mounted on an arm projecting from said ash-pit, a grate made in two portions arranged to pivot horizontally on said bearing, means to connect said portions of said grate pivotally together, and means for raising and lowering one of said portions, substantially as shown and described.

'5. The combination in a grate for furnaces and stoves, consisting of a two-part grate pivotally hinged together, a pivot for the entire grate mounted on one of said portions, an arm mounted on the other portion and means as a swinging bail to vary the inclination of one of said portions.

'6. The combination in a grate for furnaces and stoves consisting of two parts, the two parts whereof are pivotally hinged together, a pivot mounted on one of said parts to permit horizontal rotation of both parts in unison, and means to permit the inclination of the other part of said grate, substantially as shown and described.

'7. The combination in a grate for furnaces and stoves consisting of an enclosing ash-pit, an arm mounted on the interior of said ash-pit, a bearing on said arm, a two-part grate, a pivot on one of said parts to enter said bearing, a lever mounted on the other part, and means to vary the vertical inclination of said lever.

'8. The combination in a grate for furnaces and stoves of a two-part grate a lever mounted on one of said parts a swinging bail mounted in said ash-pit arranged when swung in one position to keep said grate level and when swung in the other direction to lower one of the portions of said grate into an inclined position.

'9. The combination in a grate for furnaces and stoves of a two-part grate, one portion whereof is arranged to pivot on a supporting arm, the other designed to be vertically inclined as desired and a supporting arm to sustain said pivoted portion, substantially as shown and described.'

Only two of these claims were ultimately allowed; omitting intermediate changes in numbers, the two allowed were original numbers 5 and 8, now claims 1 and 2 as they appear in the statement. All the claims were rejected by the examiner on reference to the Goodenow patent, No. 369,334, dated September 6, 1887, entitled 'Grates Rotary.' Thereupon Maag through his counsel canceled original claims 1, 3, and 6, and stood on claims 2, 4, 5, 7, 8, and 9, changing their numbers consecutively from 1 to 6, and claiming that the Goodenow patent differed from the device described in the claims so retained. Among the grounds stated in support of the difference so claimed was this:

'Again the 'swinging bail' is a novel feature, and not found in the cited case. It is of peculiar use, as it sustains the 'arm, 9,' both at its upper and lower position.'

The claims so presented a second time were regarded by the examiner as unpatentable, and were again rejected. Further reference was made to Mearns, 191,702, June 5, 1877 'Grates Compound Movement.' Reconsideration was asked and given, but the claims were once more rejected; additional reference being made to Brown, 108,754, November 1, 1870, 'Hot Air Furnaces.' Upon appeal to the board of examiners, the examiner was affirmed as to claims (newly numbered) 1, 2, 4, and 6, and reversed as to claims 3 and 5. Afterward Maag canceled all these claims except 3 and 5, and asked that they be changed in numbers to 1 and 2, and at the same time added two new claims. The new claims were refused for formal reasons, and so need not be set out or further noticed. Thus all of Maag's claims were rejected and...