words "as described" appear immediately after the element respecting the bars in the upper grate being spaced widely apart in the first claim, and because the drawings referred to show the zigzag arrangement, and the description of the patent deals with this zigzag ar rangement, therefore the reference to the description and drawings in claim 1 necessarily makes the before-mentioned zigzag arrangement an element of that claim. A strong argument has been made, not only from the language of the specifications and claims, but also from a consideration of the contents of the file wrapper, that complainants' invention, as disclosed in the first claim, as well as the second, is limited to the zigzag arrangement of the bars of the upper grate, and it may be that such is the true construction, but I have reached so satisfactory a conclusion upon other phases of the case that I will not express any positive opinion as to whether the claim in controversy is limited as claimed. There are several patents and publications pleaded in this case as anticipations of the invention of the patent in suit, and among them is the English Barlow, Edmeston & Beeley patent of 1868, and it is contended that all the elements of claim 1 of the patent in suit are found in this English patent. A brief consideration, therefore, of this contention is necessary. Claim 1 of the patent in suit is for a combination of elements "in a combined downward and upward draft furnace," as follows: (1) A lower upward-burning grate; (2) an upper downward-burning grate; (3) an intermediate combustion chamber; (4) an escape flue, leading from the combustion chamber; (5) the bars in the upper grate spaced widely apart as described; (6) said upper grate connected at each end thereof with a water chamber, in turn connected with the boiler; (7) the bars in the lower grate spaced closer together than are the bars in the upper grate. After a careful scrutiny of the nature, description, and operation of the invention, as stated and shown in the English patent referred to, I am satisfied that all the elements of the claim involved in this suit are there found, operating substantially in the same way, and calculated to produce the same results. It was claimed in the argument for complainants that the particular novelty found in the patent in suit consisted in spacing the water bars of the grate "widely apart" so as to permit the partially burned fuel fed onto that grate to fall through the spaces, drop upon the lower grate, and thus feed the fire upon it, and that this particularly novel feature of complainants' patent is not found, or its invention described, in the English patent referred to. It seems to me that this feature, namely, the wide separation of the water bars in the upper grate, is fairly disclosed in the drawings of the English patent, and is also necessarily involved in the operation of the device as described in that patent. The function which might be discharged by the widely-separated bars of the English patent is obviously the same as that claimed to be performed by the widely-spaced bars of the patent in suit, and, if the same is not as specifically described in the English patent as it might be, it is obviously because the operation of the combination there disclosed was then well known to the art, and needed no description. It appears that in the Robinson patent in evidence—the same being an English patent of 1854-the importance of wide

spacing of the bars of the upper grate was fully appreciated, and its utility as a device for feeding the fire on a lower grate was then well known. It is true, the Robinson patent combined a plurality of downwardly-burning grates, and, of course, located the draft flue below them, while the patent in suit combines one down-draft with an up-draft grate, and locates the escape flue between them. This difference in construction involves but a duplicating of the downwardburning grates; otherwise it seems similar in principle to the invention of the patent in suit,-enough so, at any rate, to afford valuable information in ascertaining the state of the art. A portion of the specification in the Robinson patent reads as follows:

"The coal or other fuel is supplied to the top or upper tier, and the bars or tubes are so arranged that the spaces between them are wider than in the next tier, and that is also wider than the spaces in the tier below, so that the fire passing through the top or first set of grates will fall on and operate for the time on the second set, and then fall through to the third, and so on. The air necessary for combustion is also supplied at the top or upper part of the apparatus above the fire, instead of under it as heretofore. By which contrivance I obtain a downward draft or current through the whole series of gratings, which causes the smoke from the top or green fuel to pass through its own and also through the red fires of the succeeding tiers of grates where it will be consumed."

It thus appears that the thought which is claimed to have actuated the patentee of the patent in suit, and the description of the operation of the device, were public property many years before the Barlow, Edmeston & Beeley patent was granted, and for that reason it was unnecessary for the patentee in the last-mentioned patent to describe the operation of the device of his patent. In the Robinson patent it was made known to the world that coal would fall through the upper grate when the bars forming it were spaced widely apart, and that so falling upon the lower grate it would operate upon the grate underneath. In the light of the teaching of this Robinson patent, it cannot be said that the patentee in the Barlow, Edmeston & Beeley patent made a fatal omission in not describing the operation of the device, in so far as that device is involved, in the plea of anticipation in this case. Following the construction of the Barlow, Edmeston & Beeley patent, and certainly when the same is supplemented by the description of the invention of the Robinson patent, I have no doubt that any person skilled in the art could make and use the device of the complainants' patent. But these English patents are not all that is relied upon by the defendants in this case. There appeared in an English journal called the Practical Mechanics' Journal, published in London in 1857, a description of a furnace called "Robinson's Duplex Furnace." That part of the description which is apposite to the present inquiry is as follows:

"In it there are two separate grates, one above the other. The upper one is formed of a series of tubes opening at their inner ends into the boiler, and at their front ends into a water space, through which the boiler water continually and rapidly circulates. It is this upper grate only which is fired, and, a down draft of air being passed from the upper fire door, the gaseous matter from the green coal consumed on the upper bars is passed right through this mass of fuel. Whatever gases escape unconsumed are then burnt from the flame of the lower grate. The lower grate, formed of common rocking bars, is entirely fed by the half-consumed fuel falling from the upper grate, and, as the

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flame from this source ascends, it meets the downward-burning fire from the upper grate, and the joint draft current passes through the flues in the usual way."

Without

A cut is found in connection with this description illustrating the parts of the described device and their operation. From this description and cut it seems to me that the device of the patent in suit is not only obvious in a general sense, but is quite clearly pointed out in every material particular. They point out clearly and distinctly the use of the downward and upward burning grates, the intermediate combustion chamber, the feeding of the fire on the lower grate by the The cut dropping of the half-consumed fuel from the upper grate. clearly suggests the wider spacing of the bars of the upper grate than that of the lower grate; and the function to be discharged by the two, as particularly described, in my opinion, requires, as a physical necessity, the wider spacing of the bars of the upper grate. such spacing, manifestly the half-consumed fuel could not fall through the upper grate, and lodge for complete combustion on the lower grate. The description of the elements of the English patent of 1868, and the detailed explanation of their purpose, operation, and results found in the description and drawings of that patent, certainly when supplemented by the description found in the Robinson English patent of 1854, are, in my opinion, so full, clear, and exact as to enable any person skilled in the art or science to which they relate to readily This is the criterion to practice the invention of the patent in suit. determine whether a foreign patent is an anticipation of one granted Hanifen v. Godshalk Co., 28 C. C. A. 507, 84 by the United States. Fed. 649; Seymour v. Osborne, 11 Wall. 516; Simonds RollingMach. Co. v. Hathorn Mfg. Co., 93 Fed. 958.

There are many patents and publications shown by the proof in this case, other than those already alluded to, which, with them, so illustrate the prior art, as, in my opinion, to clearly show that no patentable invention is involved in the device of the patent in suit, except that which may be involved in the zigzag arrangement alOn the whole, I am of the opinion that the prior ready referred to. art shows that there is no patentable invention in complainants' device, unless the same is limited to the zigzag arrangement of the bars of the upper grate; and that, if there was any such invention, a complete anticipation has been shown. The bill must, accordingly, be dismissed.

JOHNSTON v. WOODBURY.

(Circuit Court, N. D. California. August 7, 1899.)

No. 11,935.

1. PATENTS-INVENTION-ORE CONCENTRATORS.

In ore concentrators of the type having an inclined endless belt, carried by, and having a longitudinal movement upon, a frame to which a lateral movement is imparted, it was but a slight and formal advance in the art, involving no patentable invention, to construct a machine with the supporting strips always at a slight inclination from the vertical, and capable of adjustment to change the inclination until the even distribution of the

pulp over the belt surface was secured, in place of an old machine having vertical supports susceptible of adjustment to the desired inclination. 2. SAME.

The Johnston patent, No. 490,849, for an improvement in ore concentrators, is void, in view of the prior state of the art, for want of patentable invention.

This was a suit in equity by George Johnston against George E. Woodbury for alleged infringement of a patent for an improvement in ore concentrators.

John H. Miller, for complainant.

Wheaton & Kalloch, for respondent.

MORROW, Circuit Judge. This is a suit for the infringement of letters patent of the United States No. 490,849, granted to the complainant, George Johnston, January 31, 1893, for an ore concentrator. Complainant claims to be the sole owner of said letters patent, and of all rights and privileges by them granted covering the United States and its territories, and alleges that great pecuniary benefit and advantage have accrued to him and his licensees from the exclusive possession and enjoyment of the privileges of said letters patent; that the respondent, George E. Woodbury, is making, using, and selling ore concentrators which embody plaintiff's patented invention, and are infringements thereof; that complainant has suffered great and irreparable injury by reason of said infringements, and therefore asks for an injunction restraining the respondent and his agents and employés from further acts of infringement. The class of ore concentrators to which complainant's invention, as contained in letters patent No. 490,849, relates, is of the type having an inclined endless belt, carried by, and having a longitudinal movement upon, a frame to which a lateral movement is imparted. Finely-crushed sulphur

ets, mixed with water until in the condition of a watery pulp, are fed to the surface of the belt, and carried up the incline to a point where a sufficient supply of water is met. The combined lateral and longitudinal movement of the belt and the agitation of the pulp and water thus produced cause a separation of the pulp, the sulphurets and heavier precious particles sinking to and contacting with the surface of the belt, while the water and waste material run down the incline. and escape at the lower end of the concentrator. The sulphurets are carried with the belt up the incline, around the guide roller at its upper end, and down through a water tank below, where they are washed off and deposited. Complainant specifies his improvement to consist in a novel manner of connecting the belt frame carrying the moving belt to the stationary main frame, so as to produce an oscillatory motion of the former; also, in means for changing the degree of oscillation given to such frame, in a flexible connection for the shaft which gives the belt its "uphill" motion, whereby a rigid shaft is enabled to impart motion to gearing which is carried by and oscillated with the belt frame, and in the construction of the water box, or distributor. The accompanying drawings illustrate the mechanism, and are described by complainant as follows: