2. Letters Patent No. 179,581, granted July 4, 1876, to Wilfred C. Lyman, for an improvement in traps for exhaust-steam pipes, construed, and held not to be infringed by a condenser-head having an enlarged drain-pipe instead of a handhole, and not having inside cones with turned rims or edges.

Mr. George P. Barton for the complainant.

Messrs. Banning & Banning and Mr. Charles C. Linthicum for the defendants.

BLODGETT, J.:

This is a bill to enjoin an alleged infringement by the defendants of a patent issued to the complainant for an improvement in traps for exhaust-steam pipes. The object and scope of the invention is set out by the patentee as follows:

The object I have in view is to provide the top of the exhaust-pipe of a non-condensing steam-engine with a head which will not only trap-off the water of condensation carried up the pipe with the exhaust-steam, but also the grease used for lubricating the cylinder, and carried up by the exhaust-steam.

The invention consists in the peculiar construction of the cap and the combination therewith of the deflectors and conduits, and a hand-hole in one side of the cap, through which access is had to the interior, for removing grease and solid matter settling therein.

The general scope of this invention is that the steam, carrying with it some spray or water and the melted grease or oil ejected with the steam, reaches by the exhaust-pipe the arrangement shown in the condensing-head. There the steam is deflected, sent around the cold edges. of the large surface, where the water, which has already become condensed, is caught upon the deflectors and upon the head of the cap of the condenser, and is condensed, so that the water falls into some of the receptacles for it. It either is condensed, and passes into the lower skirt, which is inverted, and runs down and passes into the channels and flows through the outlet-pipe, or it is held by the upturned edges, which are shown by the model, so that whatever steam is discharged is mainly dry steam, that will not readily condense, and passes into the air without depositing any water or grease on the adjacent roofs or buildings.

The defendants deny the infringement of the complainant's patent, and also insist that the complainant made and sold and put into public use condensers in the form now made and used by the defendants more than two years prior to the complainant's application for a patent and the issue of his patent. It is insisted that by such public use the complainant has lost the right to cover a device so given to the public by his patent. The proof in the case, which I will not stop to read, is briefly this: Some years ago, in 1870, 1871, and 1872, the complainant commenced the manufacture of these condensing-heads. He began by manufacturing a condenser head something like that shown in the proof marked "Lyman's Old Head," which is admitted to be a substantially correct illustration of what the defendant now makes. In 1872 he man9373 PAT--23

ufactured several of these, at least four of which he sold and put in public use. They were not experimental heads in the strict sense of the word, such as are allowed within certain limits to be made and used by an inventor as experiments. The law permits an inventor to construct a machine which he is engaged in studying upon and developing and place it in friendly bands for the purpose of testing it and ascer taining whether it will perform the functions claimed for it; and if these machines are strictly experiments, made solely with a view to perfect the device, the right of the inventor remains unimpaired; but when an inventor puts his incomplete or experimental device upon the market and sells it as a manufacturer more than two years before he applies for his patent, he gives to the public the device in the condition or stage of development in which he sells it. The proof in this case shows that during the year 1872 and fore part of 1873 complainant made and sold at least four of these condenser-heads made in all respects like the "Exhibit Lyman's Old Head." They were not experiments, but were made, son, and put in use by complainant in his business as a manufacturer. In the mean time the complainant continued his experiments, and after a time increased the size of the upper deflector, so that it overhung the lower one and turned up the edges of the upper and turned down the edges of the lower deflector, so that they have the shape shown in his final patent; and in April, 1876, he applied for his patent, which was issued a few months afterward, in which he specifically describes his device, including the upturned edges of the upper deflector and the downturned edges of the lower deflector.

His claims specifically call for the deflectors with the edges turned as described. The claims are as follows:

1. The combination of the cap B B', escape pipe A', deflectors C C', and conduits c D, said deflectors and conduits provided with curved outer rims or edges, with the exhaust-pipe of a new-condensing enepe substantially as and for the purpose set forth.

2. The combination of the cap B B', ese pe-pipe A', deflectors C C', conduits e D, and hand-hole E, with the exhaust-pipe A of a non-condensing steam-engine, substantially as and for the purpose set forth.

Both these claims, as I construe them, call for these deflecting-plates with turned edges. The complainant's device also shows a hand-hole for the purpose of removing the grease, scot, or other solid matter which may collect in the condenser. The defendants, instead of using a handhole, located as shown in the patent, insert a large screw-pltig near the lower end or apex of the inverted cone, through which plug the drainpipe passes; and by unscrewing and removing this plug a book or wire can be inserted and used to clean out the solid matter. This is not a hand hole, as called for by the specifications of complainant's patent, but it is a mere enlargement of the drain or discharge pipe. I find, therefore, that in the general features of the condensers made by defendants they conform to those which complainant made and gave to the public at least three years before he applied for his patent; and in con

struing complainant's patent I must hold him bound by the state of the art as he developed it up to 1872 and 1873, and that his patent cannot be allowed to relate back and cover the forms of condensers which he gave to the public more than two years before he applied for his patent. The complainant's bill must be dismissed for want of equity.

[United States Circuit Court-Southern District of New York.]

AMERICAN DIAMOND DRILL COMPANY v. THE SULLIVAN MACHINE COMPANY.

Decided July 21, 1884.

28 O. G., 811.

1. An interlocutory decree rendered some years since may be overruled at final hear ing, in view of decisions on the questions of law involved made in the interval between the interlocutory and final decrees.

2. A specification and claim in the original patent having been framed so as to cover accurately and definitely a certain invention, there was no error which had arisen through inadvertence or mistake, nor was there any defectiveness or insufficiency in the specification, and hence there arose no case for a reissue.

Mr. Edmund Wetmore for the plaintiff.

Mr. E. T. Rice and Mr. Alvan P. Hyde for the defendant.

SHIPMAN, J.:

In 1875 this court passed an interlocutory decree enjoining the defendant against the further infringement of the second claim of Reissue d Letters Patent No. 3,690 to Asabel J. Severance, as assignee of Rudolph Leschot, dated October 26, 1869, for an improved rock-drill. The original patent was issued to Leschot, and was dated July 14, 1863. The interlocutory decree was subsequently modified so as to enjoin against the infringement of the third claim of the reissue. An accounting has been had before a master, whose report now comes for confirmation, and the case is ready for a final decree. Exceptions have been taken on both sides to the report, but all the exceptions are overruled, and the report is confirmed as containing a correct finding upon the questions which were referred to the master.

The important question is whether, under the recent decisions of the Supreme Court, the second and third claims of the reissue are valid, and whether the final decree should not be for a dismissal of the bill. Perkins v. Fourniquet, 16 How., 82. The invention, the second and existing reissue, and the infringing device were described in the opinion. in the case of the American Diamond Rock Boring Company against Sullivan Machine Company, 14 Blatchf. C. C. R., 119. The descriptive part of the original patent was substantially the same as the corresponding portion of the present reissue.

The single claim of the original was as follows:

The tool for boring or cutting rock or other hard substances, composed of an annular or tubular stork or crown, armed with a series of diamonds, and operating substantially as herein specified.

The defendant's device had, instead of an annular boring-head, a convex boring-head armed with diamonds and with two holes on its surface for the passage of water. By this device the entire portion of rock which is acted upon by the tool is abraded.

The second and third claims of the present reissue are as follows: 2. The row of cutting-edges a', when attached to a revolving boring-head, so as to project beyond the circumference thereof, for the purposes specified.

3. In combination with a reyolving and progressing boring-head having cuttingpoints projecting beyond the periphery thereof, a hollow central drill-rod, through which the water is forced or passed.

The plaintiff insists that Leschot's actual invention was a revolving and progressing boring-head armed with cutting-points projecting beyond its periphery, so that they will cut a hole of larger diameter than that of the boring-head and drill, give a clearance, and a hollow drill-rod adapted by reason of its tubular form to permit the injection of water through the orifice in the boring-head to wash away the detritus; and, further, that Leschot described in the original patent the manner in which the diamonds were placed so that a larger diameter was given to the hole than that of the boring-head. Both these positions are true. The plaintiff then says that the original claim did not limit the patent to an annular boring-head, but expressly included a tubuiar one, so that a convex head was included in the patent as originally granted, and, therefore, that the new claims of the reissue are not an expansion of the original. The plaintiff understands "the words 'annular or tubular' to mean that the head may be annular, so as to have a core, or tubular, so as to permit the passage of water, and that in any case the head must be tubular in the sense of a passage through it for the flow of water." If the claim of the original patent did limit the invention as patented to an annular crown, which would necessarily bore an annular hole having a central core, the plaintiff admits that the second and third claims of the reissue are an enlargement of the original patent, and, being contained in a reissue which was granted six years after the date of the original patent, are void.

The sole idea of Leschot when he obtained his original patent was that he had a tool which bored an annular groove, leaving a central core or kernel. He did not see that his invention was broader than his statement of it, and could be made very useful for channeling or cutting from the quarry blocks of marble or rock by making a series of holes which did not leave a core; but he presented his invention to the Patent Office as one which had the single office, so far as its cutting character was concerned, of boring annular holes or grooves, and which was so constructed as to leave a central core within the hole or groove. He said, indeed, that the operation of his tool would be adjusted by the in

jection of a stream of water through the tubular bar for the purpose of washing out the detritus; but this sentence or paragraph makes it plain that he considered that the chief function of the tubular crown was to make an annular hole which should have a core. The stalk must be annular, and being annular it could admit a stream of water through the hollow bar. The claim of the original patent was not intended to enlarge the descriptive part of the specification, but to describe compactly and tersely the very invention which he had previously described more at length, and the words "annular or tubular" in the claim are synonymous and were intended to convey the same idea which the patentee had expressed in the descriptive part of the specification. Therefore, if the patent was to include a convex boring-bar, and so include the actual invention, it must be reissued. But the intent of the patentee having been to apply and obtain a patent for an annular stalk, and not for a tool which did not have a core, and the specification and the claim having been framed so clearly, accurately, and precisely to describe the annular tool and no other, there was in the original patent, according to the modern decisions, no error which had arisen through inadvertence, accident, or mistake, nor was there any defectiveness or insufficiency in the specification.

The interlocutory decree was right according to the theories of the law which were generally accepted in 1875. It is wrong as the law now stands. The decree dismissing the bill for the reason herein set forth will be settled, if desired, upon hearing.

[United States Circuit Court-Southern District of New York.]

ROOSEVELT v. WESTERN ELECTRIC COMPANY.

Decided July 7, 1884.

28 O. G., 812.

1. The purchase of a patented article from the patentee confers upon the buyer the right to use the article to the same extent as though it were not the subject of a patent, but the sale does not import the permission of the vender that it may be used in a way that will violate his exclusive property in another invention. 2. When the article is of such peculiar characteristics that it cannot be dealt in as a trade commodity, and cannot be used practically at all unless as a part of another patented article of the vender's, it would be against good conscience to allow an injunction to a vender under such circumstances; but this is not true of the article in question.

Messrs. Dickerson & Dickerson for complainant.

Mr. George P. Barton for the defendant.

WALLACE, J.:

The case made by the motion papers is this: The complainant's patent is for an improvement in electric batteries consisting of a prism