eter than the illuminating-tube," upon the presence of which the Kuch patent depends. Bastian's specification does not mention any "narrow" tube or any "intermediate" tube. Since Bastian's claim 11 declares that this narrow intermediate tube" is found in connection with the horizontal illuminating-tube, we may well look for it in his Fig. 1, showing his horizontal form, and here reproduced.

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Yielding to the Patent Office conclusion that Bastian could make this claim on his disclosure, it follows that this element must be there somewhere. It cannot be a part of the cathode-bulb. It therefore must be that end of the illuminating-tube which turns downwardly into the cathode-bulb, It is rather an awkward conception that, of a unitary tube of constant diameter all of which seems to be the illuminating-tube, part is illuminating-tube and part is a narrow intermediate tube" between the illuminating-tube and the cathode; but there is no other solution. Bastian's "narrow tube" is therefore an extension of the illuminating-tube, and of precisely the same diameter, and is "narrow" only with reference to the greater diameter of part of the cathode-bulb, while Kuch's tube is' also narrow with reference to the illuminating-tube. Is Kuch's form only such a variation as any one skilled in the art might naturally make? Defendant insists that the vital relationship is between the size of the intermediate tube and the size of the cathodebulb, and that, since it was common practice to increase the size of the illuminating-tube proportionately to the increase in the current to be used, there was no invention in maintaining that part of Bastian's tube which served as the cathode extension at the small size shown by Bastian, and then expanding the remainder of the tube into any size which the current required.

We are not convinced that we should accept this conclusion. In the first place, Bastain certainly contemplated nothing of the kind. Not only is it evident that his entire illuminating-tube must be of such very small diameter that superficial tension will prevent the flow of the mercury along the horizontal part, but in another patent, issued upon a divisional application, he expressly claimed this feature. Next, we observe that in Kuch, the mercury arc initially fills the main illuminating-tube and usually extends part of the length of the intermediate tube. So far as shown by the records in this and in the companion case (No. 3,028) relating to the same art (249 Fed. Rep., 69)

1

there had never been a lamp with mercury electrodes in which the arc or its containing-tube was constricted at or toward the cathode; on the contrary, the area of the active cathode-surface had always been at least as great as the cross-section area of the arc-tube; and we cannot now say that an innovation in this respect presented no new problems as to radiation, amperage, or other elements. If the arc has becomes limited to a central "string," then the constriction would be of the space between the arc and the tube-walls, and there is no presumption that this would be immaterial.1 The Bastian device was inoperative, except with a small amperage. That its beneficial effects. could be retained, and that it could be made to operate with a high amperage, by expanding part of the tube and leaving the remainder untouched, seems now entirely obvious to the defendant's expert; but we think we have no right to say that this was ordinary skill in 1906. Such a change would involve, not only expanding part of the tube, but (probably) changes in the quantity of mercury to be vaporized and readjustment of the anode and cathode sizes-in fact, every factor involved would be disturbed and subject to recomputation if not to experimental research.

When to these considerations we add the fact that defendant, owner of the Bastion patent, has abandoned his specific form and adopted Kuch's, thus paying the "tribute of imitation" (Diamond Co. v. Consolidated Co. C. D., 1911, 538; 166 O. G., 251; 220 U. S., 428; 31 Sup. Ct. 444), we conclude that the presumption of validity is not sufficiently overcome, and that there must be the usual degree for injunction and accounting.

[U. S. Circuit Court of Appeals-Seventh Circuit.]

SCHRAM GLASS MFG. Co. v. HOMER BROOKE GLASS Co.

Decided January 25, 1918; rehearing denied April 5, 1918.

252 O. G., 1143; 249 Fed. Rep., 228.

1. PATENTS-VALIDITY AND INFRINGEMENT.

The Brooke patent, No. 723,983, for an apparatus for cutting and distributing molten materials, which automatically cuts an uninterrupted flow of molten glass into a mold when the mold is filled and supports the severed stream until another mold is brought into place, was not anticipated, discloses patentable invention of a highly-meritorious character, and is valid; also Held infringed.

2. SAME CONSTRUCTION OF CLAIMS-QUALIFYING CLAUSE.

A clause at the beginning of the claims of a mechanical patent, stating the purpose of the device, is not to be ignored as not describing any element, but is a modifying clause, to be read upon every element thereafter described.

1 We do not overlook Fig. 2 of Hewitt Patent No. 682,690 (using one mercury electrode). The inserted guide or collar which produced restriction was for a different purpose, and was of opaque and non-heat-conducting material. It is not more than a suggestion of one element of Kuch's combination. If it were more, it would anticipate Bastian's claim 11.

3. SAME-VALIDITY-ABANDONMENT OF APPLICATION.

The failure of an applicant for a patent to prosecute his application within two years after it was filed does not invalidate a patent afterward granted thereon, such allowance being within the jurisdiction given the Commissioner by Revised Statutes, section 4894. (Comp. St., 1916, sec. 9438.) APPEAL from the District Court of the United States for the Southern Division of the Southern District of Illinois.

Suit in equity by the Homer Brooke Glass Company against the Schram Glass Manufacturing Company. Decree for complainant, and defendant appeals. Affirmed.

Mr. Russell Wiles for the appellant.

Mr. Frederick P. Fish and Mr. Charles Neave for the appellee.

Before BAKER, ALSCHULER, and EVANS, Circuit Judges.

EVANS, Cir. J.:

From a decree sustaining Patent No. 723,983, granted to Homer Brooke, March 31, 1903, holding appellant had infringed it, and enjoining further infringement, this appeal is taken. The defenses are invalidity and non-infringement.

The patent to Brooke relates to an apparatus for cutting and distributing molten materials, particularly glass, and if of particular value to the manufacturer of fruit-jars, bottles, and other similar glass objects used by the public in large quantities, the cost of which constitutes an important factor in their successful manufacture. While the art of making glass articles is old, it was, prior to Brooke's device, deficient in a particular, an understanding of which is better obtained by a brief general description of the art to which it relates.

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In making articles of molten glass prior to this discovery, a considerable quantity of the molten material was taken from a furnace to a mold by a workman, called a gatherer, who, by the use of a punty-rod," injected into and twisted around in the molten mass in the furnace, first collected and then transferred it to a position over a mold of predetermined size into which the glass ran from the rod. Another workman stood by, and with shears cut this string or stream of flowing glass when directed. The gatherer then twisted his rod, so as temporarily to prevent glass falling off and until another empty mold was supplied, and then the operation was repeated. Machines for receiving this product, containing molds of predetermined capacity, were in common use, and, not infrequently, easy and ready method of substitution of one mold for another was provided. Some devices for receiving the molten mass in the mold, and for the prompt exchange of the molds, were patented, and at least one must be especially considered-the patent to Steimer, No. 549,404, issued November 5, 1895.

(1) Brooke's contribution to the art consisted in producing an apparatus that would better, more rapidly, and more economically convey the molten mass from the furnace to the mold. Instead of the interrupted flow of glass, and the delayed method of transferring with a punty-rod this substance from the large reservoir to the mold, in use prior to this discovery, appellee's device permitted the glass to flow continuously from the furnace, and the severing-knives were made to act automatically, and means for supporting the severed stream were provided; the accumulated flow being poured into the opening of the next-presented mold. The characteristic claims are as follows: Claim 1. An automatic device for cutting or separating an unsupported freely flowing stream of molten material into unformed molten masses, the same comprising a cutting knife and means for moving the same and means for supporting the severed stream of continuously flowing material.

Claim 3. An automatic device for cutting or separating a flowing stream of molten material into unformed molten masses, the same comprising a cutting knife and the means for moving the same, and means for discharging the said molten masses into suitable receptacles.

Claim 4. An automatic device for cutting or separating a flowing stream of molten material into unformed molten masses of predetermined quantity, the same comprising a knife and means for moving the same, a plurality of receptacles, and means for discharging the said molten masses into said receptacles. Claim 5. An automatic device for cutting or separating a flowing stream of molten material into unformed molten masses, the same comprising a knife and means for moving the same, a plurality of receptacles, means for discharging the said molten masses into said receptacles, and means for intermittently moving said receptacles into position to receive the cut-off masses.

Claim 6. An automatic device for cutting or separating a flowing stream of molten material into unformed molten masses, the same comprising a knife and means for moving the same, and means for causing the said cutting device to temporarily support the molten stream.

The device is herewith shown in Figure 5, the sequence of position of cutting-knife and receptacles in the operation of severing the molten-glass stream being illustrated.

Fig. 5

LIUPE

37 is a conduit which aids in conducting the glass from the furnace to the receptacle 30. The cutting-knife 23 is cup-shaped, one side of which is provided with a cutting edge 24. Another knife, which moves in the opposite direction, consists of blade 27, carried on the end of an arm, extending from the hub (the arm and hub not being shown in the figure), all working automatically. When the constantly flowing stream of glass has filled the mold, the two blades

come together as shown in B, the stream is cut, and the knife passes to the position C. While the glass is momentarily supported in the cup-shaped receptacle, as shown in figure C, an empty mold is being brought into position underneath. In D, the tilting operation has been completed and the molten glass has been discharged from the receptacle into the mold underneath. The knife and the cup-shaped receptacle then resume their normal position by the action of gravity. The molten mass proceeds to flow into the mold next succeeding. While this is not all of the machine, it describes the mechanism of its more important parts.

The distinct contribution to the art was so obvious that appellant concedes patentability to Brooke's discovery, but claims that a process and not an apparatus discovery is disclosed. It contends that, an apparatus patent having been issued, it was invalid in view of the prior art, which contention calls for a consideration of the Steimer patent, designated by its patentee as a "glass measuring apparatus," but claimed by the appellant to be capable of being used so as to meet all the specifications and claims found in the Brooke patent.

Figs. 3 and 4, appearing above, describe the material part of the Steimer apparatus, which, appellant claims, is capable of performing the same function described in Brooke's patent, and is anticipatory of the claims therein set forth.