be secured in many different ways, as by down-turned edges of perforated sheet metal, or depressions in the metal. This method of supporting the lathing while the concrete is being applied may be applied not only to an arch, for which it is especially desirable, but also to a straight ceiling, in which case the arms, 6, of the hangers will be extended, and the upper surface of the supporting frame be a plane. A section of a ceiling, C, thus formed is shown in Fig. 8, in which the sheet of lathing is shown also as bent around the lower flanges of the beams at 14, so as to cover and protect them, and avoid the use of the independent sheet of lathing for this purpose. This method of covering the flanges of the beams may be applied also to the arch construction of Fig. 1." The patent has several claims, but only the first two are now in controversy. These claims are: “(1) A fireproof ceiling, consisting of metallic lathing extending from beam to beam, and having upon its under side offsetting portions projecting from its body, and a body of plastic material applied from above, and in which the body of the lathing and projections are embedded, substantially as described. (2) An arch formed of metallic lathing bent to the required form, and having upon its under side offsetting portions projecting from its body, and a body of plastic material applied from above, and in which the body of the lathing and projections are embedded, substantially as described." How far the many advantages that were expected by the patentee, and are declared in the plaintiff's argument to accompany the invention, have been realized, I do not know. There is no evidence that the construction has been used by the plaintiff or by other persons, and the only testimony concerning its value is the opinion of some of the witnesses. The defendants are charged with infringing the patent by building arches of concrete, in combination with a framework made of expanded metal that had been manufactured under the Golding patents of 1884 and 1885. These arches were constructed in a building erected in 1897 in the city of Philadelphia, and the method of construction was essentially the method described in the plaintiff's patent. The defenses are noninfringement, want of invention, and anticipation. In order to understand the dispute, it is necessary to know with exactness what may be new in the plaintiff's claims, and this may perhaps be arrived at most easily by laying aside what is agreed to be old: (1) A ceiling, either flat or curved concavely, formed of plastic material in combination with a metallic framework embedded in the material, was old before the date of the patent in suit. (2) The use of a centering or molding board to support the plastic material from below, and give shape to it, during the process of hardening, was also well known at that time. (3) The application of the material from above was in like manner a familiar method. (4) Various designs of metallic lathing, some of them capable of being used to produce the finished construction contemplated by the patent, and some of them being unsuited for such use, were also well known, and in more or less general use. These facts are undisputed, and they show that the novelty of the plaintiff's patent must consist in the use that is made of the offsetting portions of the metallic lathing. These projections support the body of the lathing at a uniform distance above the centering, and permit complete embedment, except at the supporting points. Now, the expanded metal used by the defendants is always so made as to present an irregular surface, having offsetting or projecting portions wherever the still united parts of the strips of metal pass over or under each other. These offsetting portions will differ in height, as the width of the metal strips may differ; and it is therefore possible, by using a framework having strips sufficiently wide, to secure a nearly complete embedment, and thus to obtain whatever advantages the plaintiff's construction may offer to the builder. The first question, therefore, arises, does such use infringe the claims in controversy? If the patent is valid, I think the question must be answered in the affirmative. The specification evidently had in mind the possible use of such a framework as the defendants employed, for it expressly declares: "The same result may be secured in many different ways, as by downturned edges of perforated sheet metal, or depressions in the metal." And the claims describe the metallic lathing necessary to be used as having "upon its under side offsetting portions projecting from its body," thus including, as it seems to me, not only such lathing as might be specially prepared for the purpose of the patent, but also such lathing as might be adapted for that purpose, although not specially prepared therefor. The claims under consideration are not for a kind of lathing, nor for the process of putting the lathing and the material together, but for a finished result, for a construction, a thing built of two substances, and intended to accomplish a defined result; and therefore, if the defendants, by the use of nearly identical framework and material, produce essentially the same construction, adapted and designed to accomplish substantially the same result, I cannot avoid the conclusion that the patent has been infringed. But a conclusion of infringement assumes the validity of the patent, and this point is next to be examined. In spite of the very able argument of counsel for the plaintiff upon this point, I am constrained to hold that, in view of the prior state of the art in April, 1890, there is nothing new in the claims now in question. I do not think it necessary to discuss the numerous patents offered in evidence by the defendants. The state of the art at the date of plaintiff's patent is clearly described in the following quotation from the testimony of Prof. Main, one of the plaintiff's experts: "The use of a combination of concrete or equivalent plastic material with iron lathing, iron rods, etc., for the general purposes referred to in the patent, was old and well known at the date of application. Iron lathing or webbing had been used at or near the under side of concrete flooring, and had been regularly disposed within the body of plastic material by means of suitable supports so disposed as to maintain a constant distance between the lathing and the centering or board frame adapted to give shape to the under side of an arch. These supports had, however, so far as I am at present aware, been made separate from the structure of the lathing, and, therefore, separately adjustable, requiring extra labor in their adjustment and probably entailing other disadvantages. The patentee proposes to make these offsets integral portions of the lathing, so that when it is bent or sprung into place upon the centering or board support, or in any convenient manner brought closely in contact with it, the lathing will be supported in such a manner as to bring about the results which I have previously explained, when the plastic material is applied. The construction of these supports or offsets as an integral portion of the lathing obviates the necessity of special adjustment, and promotes rapidity of con struction, and consequently economy. As such supports are not subsequently withdrawn, no cavities are left in the ceiling, requiring afterwards to be filled up. I understand that this construction is that which is claimed in claims 1 and 2 of the patent." This quotation seems to me to bring out the decisive facts of the controversy, namely, that offsetting means carried by the centering were well known at the date of the patent in suit, and that the alleged novelty in the claims now being considered consists merely in transferring such means from the centering to the metallic lathing. I think this is an obvious substitution, and as such was not patentable. It may, perhaps, be also true that, even if this transference might have involved invention, in case metallic lathing that carried offsetting means had not been theretofore known and used for the purpose of effecting the embedment of plastic material, nevertheless the claim of novelty must fail, because such lathing was already so known and used at the date of the plaintiff's patent. But I do not consider this point. I think it is sufficient to rest the decision upon the ground already stated,-that the patent merely takes the obvious step of transferring the offsetting means from the centering to the lathing, and that this is not patentable invention. A decree will be entered dismissing the bill, with costs. HAWLEY FURNACE CO. OF NEW ENGLAND v. BRAINTREE & W. ST. RY. CO. (Circuit Court, D. Massachusetts. August 7, 1899.) No. 777. PATENTS-VALIDITY AND INFRINGEMENT-FURNACES. The Hawley patent, No. 447,179, for an improvement in downward-draft furnaces, and relating more especially to boiler furnaces, if valid at all, is limited, as to its first claim, to the specific form of devices enumerated and described, and is therefore not infringed by defendant. This was a suit in equity by the Hawley Furnace Company of New England against the Braintree & Weymouth Street-Railway Company for alleged infringement of a patent for an improvement in downward-draft furnaces. Benjamin F. Rex and Ephraim Banning, for complainant. COLT, Circuit Judge. This suit relates to letters patent No. 447,179, dated February 24, 1891, granted to Melville C. Hawley, for "a new and useful improvement in furnaces." The specification says: "This improvement relates to downward-draft furnaces, and more especially, but not exclusively, for boiler furnaces. Its object is to insure a sufficient downward draft through the upper grate, and at the same time a thorough and economical consumption of the fuel. The leading feature of the * improvement is the combination of a lower upward-burning grate with an upper downward-burning grate, the bars of said upper grate being spaced an unusual distance apart, or so constructed as to provide unusually wide spaces between the bars, whereby ample provision for a downward draft through the upper fire is provided, as well as for the consumption of such partiallyconsumed fuel as may drop from the upper grate, all substantially as is hereinafter set forth and claimed, aided by the annexed drawings, making part of this specification, and exhibiting a desirable means for_carrying out the improvement. ** * The two rows of tubes, A and B, constitute an upper fire-grate having a series of zigzag spaces, which, while being sufficiently contracted for effectively supporting the fuel during the first stages of its combustion, are yet sufficiently wide to provide for a downward draft, and to allow the fuel, after the earlier part of its combustion is effected, to fall down through the bars of the upper grate, and be caught upon the second fire-grate, C, below. This last-named grate, C, is constructed of ordinary bars arranged in the ordinary manner, and it is preferably a dumping-grate. The herein-described improved grate construction * * is adaptable to almost any ordinary boiler. The upper grate, including the water-chambers, D and E, can be applied as an attachment to existing boilers substantially in the same manner and as readily as to new boilers, and in either case the lower grate can be arranged, as described, to co-act with the upper grate." The Hawley furnace is attached to the outside of the boiler. It is an external furnace, as distinguished from an internal furnace, which is located within the boiler shell. It has a lower upward-burning grate, an upper downward-burning grate, an intermediate combustionchamber, and an escape-flue leading from the combustion-chamber; each end of the upper grate is connected with a water-chamber, which in turn is connected with the boiler. The bars of the upper grate are spaced widely apart, while the bars of the lower grate are spaced in the ordinary manner. The leading feature of improvement in the Hawley structure consists in spacing widely apart the bars of the upper grate, whereby ample provision is made for a downward draft. and the consumption effected of such partially consumed fuel as may drop from the upper grate to the lower grate. The bars or watertubes of the upper grate are in two rows; the lower row being set at an angle with the upper row, and so forming a series of zigzag spaces. This zigzag arrangement need not receive further consideration, for the reason that the defendant's structure does not contain this feature, and it is not specifically made an element of the first claim of the patent upon which the complainant relies in the present suit. The first claim reads as follows: "(1) In a combined downward and upward draft furnace, the combination of the lower upward-burning grate, an upper downward-burning grate, an intermediate combustion-chamber, and an escape-flue leading from said combustion-chamber, the bars in said upper grate being spaced widely apart, as de |