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We employ language from appellant's brief to describe the Steimer apparatus:

In the Steimer machine there is a plate 2, with a central measuring opening 3 precisely like the corresponding opening in defendant's liner machine. In the normal position of the parts shown in Fig. 3 of the Steimer patent a plate. 5 lies beneath the hole 3 in the plate 2 and a funnel or cup-shaped opening 6 in an upper plate 4 registers with the opening 3. Glass is flowed into the measuring receptacle 3 with the parts as shown in Fig. 3. The upper and lower plates are then moved by the operator to sever the glass in the measuring opening 3 from the stream above it, and immediately thereafter the hole 7 in the lower plate 5 registers with the measuring opening 3, so that the cut-off mass falls into the mold beneath (Fig. 4). This is precisely what happens in the defend- ant's liner machine. Now, it is quite true that Steimer contemplated completely filling the opening 3, while defendant does not do so, and it is quite true that Steimer contemplated an intermittent stream from a punty rod instead of the continuous stream; but it is equally true that if a continuous stream were supplied to the Steimer machine it would do exactly what defendant's liner machine does. If a continuous stream were fed into the cup-shaped receptacle 6 in the upper plate 4 of Steimer, it would flow into the measuring receptacle when the parts were in the position shown in Fig. 3, and immediately they move to the position shown in Fig. 4 the stream would be cut off and husbanded on the upper surface of the plate 2 precisely as in defendant's liner machine, and on the return of the parts to the position shown in Fig. 3 the accumulated gob would drop into the measuring opening 3.

Whether Brooke's apparatus patent is valid, in view of the prior art as disclosed in the Steimer patent, is the chief question for consideration on this appeal. Appellant rests its case on these two propositions: (a) If the prior art disclosed a device of like construction, capable of performing the same function as the patent in suit, even though the inventor had no idea of making use of his apparatus for such a purpose, the patent is anticipated. (Carnegie v. Cambria, C. D., 1902, 592; 99 O. G., 1866; 185 U. S., 403; 22 Sup. Ct., 698.) (b) Steimer's device will do the very things claimed for Brooke's apparatus. In other words, appellant admits that Steimer's "orifice" was for a measuring device, and admits that Steimer had no idea of using a "continuous flowing stream of glass, cutting and temporarily supporting it," but that, because Steimer's machine was capable of being so used it anticipated Brooke's structure, and the latter's patent cannot be saved by reason of the fact that a process was disclosed which was patentable.

Would Steimer's apparatus do the things which can be done by a device embodying the claims of the Brooke apparatus? The pith of appellant's contention lies in the italicized portion of the foregoing quotation. Unfortunately for appellant, Steimer described the operation of his machine (and we believe the only possible operation) specifically in the specifications to his patent. He said:

The operation is as follows: The mold 8 to be charged with glass is placed under the plate 2, beneath the position of the hole 3, and the plates 4, 5, are

moved, so as to bring the holes 6, 3, into register. The gathering boy then introduces into the hole 6 with his punty enough molten glass to fill the cavity 3, and by means of the operating lever 6 the plates 4, 5, are moved so as to bring the holes 3, 7, into register and to move the hole 6 away from the hole 3. The movement of the hole 6 away from register with the hole 3 shears off the glass in hole 3 from the glass on the workman's punty, leaving in the hole 3, enough glass to fill the same accurately, and the movement of the hole 7 into register with the hole 3 causes the glass to drop from the latter into the mold 8 below. Describing his drawings he said:

In the drawings, 2 represents a plate having formed there through a measuring cavity 3, downwardly flaring in form. 4 and 5 are two plates, mounted, respectively, on the top and bottom of the plate 2, and connected so that they may be moved simultaneously back and forth in contact with the plate 2. The top plate is formed with a hole 6 and the bottom plate with a hole 7, said holes being situate so that they shall register with the hole 3 at respectively opposite ends of the travel of the plates 4 and 5-i. e., when the hole 6 is in register with the hole 3, Fig. 3, the hole 7 shall be out of register, and that when the holes 7 and 3 are in register the hole 6 shall be out of register, Fig. 4. The hole 3 is made of proper size to contain the amount of glass required to be delivered to the mold.

This construction renders impossible the operation described by appellant in case a continuous stream were fed into the cup-shaped receptacle 6. The cup-shaped receptacle 6 is not stationary, and the successful operation of this glass-measuring apparatus is made to depend upon the movability of plates 4 and 5. Under such a structure a continuous stream could be fed into the cup-shaped receptacle 6 only in case the stream itself moved similarly to plate 4, and even then it is doubtful whether the stream of molten glass would follow the movement of the receptacle 6 so as to prevent any portion of the glass falling on the surface of plate 4, instead of in the receptacle 6.

Appellant's expert witnesses have suggested, by drawing and otherwise, that the opening 6 in plate 4 might be so enlarged that, not withstanding the movement of this plate 4, a portion of the opening 6 would be always under the continuously-flowing stream. The suggestion comes as a result of the Brooke patent. The structure shown in Figs. 3 and 4 does not warrant any such suggestion. Referring to such drawings it will be observed that the opening 3 is under the flowing stream. When the opening 6 is moved to position shown is Fig. 4, the stream of molten material, if uninterrupted, would fall, not in opening 6, but upon the plate 4. Neither the drawings nor the method of operation described in the specifications of the Steimer patent, permit of, or suggest, a use of the opening 6 in plate 4 for receiving" an unsupported freely flowing stream of molten material." We conclude the Steimer apparatus is not capable of being so used as to take care of a continuously-flowing stream.

(2) It is further contended that Brooke's discovery, if patentable, was not covered by the claims in question. To reach this conclusion

appellant asks us to ignore the first clause of the claim, which is as follows:

An automatic device for cutting or separating an unsupported freely flowing stream of molten material into unformed molten mass.

Appellant contends that this is a mere statement of a process and has no place in a mechanical apparatus, and should be entirely disregarded when appearing in a claim of an apparatus patent. With this conclusion we cannot agree. While it is true that this clause of itself does not describe an element in the combination, it should not for that reason be ignored. Each of the elements of the combination should be read in the light of this clause and should be modified by it. Such a clause of itself may entirely fail to supply a necessary element in a combination (Morgan Envelope Co. v. A. W. P. Co., C. D., 1894, 238; 67 O. G., 271; 152 U. S., 425; 14 Sup. Ct., 627), yet it may so affect the enumerated elements as to give life and meaning and vitality to them, as they appear in the combination. So in this case the legitimate and fair construction of the claims, particularly in view of the specifications and drawings, requires us to read on each element of this claim the clause which appellant insists is a superfluity. In so doing we are not substituting an operation for an element, nor including as an element the particular article upon which the apparatus is to work. We are merely giving to the modifying clause the same effect that would be given to an adjective or adverb that limits, enlarges, or qualifies the word it modifies.

Whether Brooke, at the time he made his discovery, was not also entitled to a process patent, we need not consider, for it is not before us. Nor are we required to devote time to the question of the patentability of Brooke's discovery, for in appellant's brief we find the following language:

This use of the knife blades for the dual purpose of severing the stream and husbanding it while the molds are changed was new with Brooke, or at least Brooke increased the husbanding to a very material extent; that is, from the slight husbanding of Picard, Schulze-Berge, to a substantial amount-great enough to absorb all glass flowing during the relatively long period of mold shift.

Such a concession (justified by the record) clearly and justly credits to Brooke the discovery of an apparatus that would take care of an unsupported freely flowing stream of molten material," which is the essence of the value of this discovery.

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(3) Appellant further urges that the application for a patent was abandoned in the Patent Office, and this contention is based on plaintiff's failure to prosecute his application within the period fixed in the statute. This contention must be rejected in view of the decision in Western Glass Co. v. Schmertz Glass Co. (185 Fed. Rep., 791; 109 C. C. A., 1). Appellant cites Steward v. American Lava Co. (C. D., 1909, 557; 149 O. G., 602; 215 U. S., 161; 30 Sup. Ct., 46) to

the contrary, but the cases are distinguishable and are not in conflict. Section 4892, Revised Statutes (sec. 9436, Comp. Stat., 1916), under consideration in Steward v. American Lava Co., supra, requires an amended application for the patent to be verified, and makes no exception and grants to the Commissioner no discretion. The Commissioner of Patents in the present case was not outside of his jurisdiction when he acted on appellee's application, filed more than two years prior thereto, for section 4894, Revised Statutes (sec. 9438, Comp. Stat., 1916) expressly reserves to the Commissioner the right to issue patents after such period.

Claims, 3, 4, and 5 are especially attacked, because no basis for them is disclosed in the specifications or drawings. It would serve no useful purpose to reproduce here the drawings or to quote at length from the specifications. We have carefully read the specifications and examined the drawings with the criticism in mind, and find ample support for the claims in both the drawings and specifications. Appellant's device so clearly infringes appellee's patent that no discussion of this phase of the case will be indulged in. The decree is affirmed.

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

WONDER MFG. Co. v. BLOCK et al.

Decided May 6, 1918.

253 O. G., 955; 249 Fed. Rep., 748.

1. TRADE-MARKS AND TRADE-NAMES-INFRINGEMENT-WHAT CONSTITUTES. Where plaintiffs had a trade-mark in the word Wizard," defendant's sale of goods indentical in appearance under the name "Wonder" was an infringement.

2. SAME APPROPRIATION--WORDS SUSCEPTIBLE OF.

The words "Arch Builder" and "Heel Leveler," used in connection with insoles in shoes, are susceptible of exclusive appropriation as trade-marks, since they are used in a secondary sense, for the terms of themselves do not suggest the purpose of correcting defects of the human foot, the first signifying one who builds arches and the second suggesting the shoemaker's trade. 3. PATENTS-REVIEW-INJUNCTION.

On appeal from an interlocutory injunction in a patent case the appellate court will go no further than to ascertain whether the court below abused its discretion. Therefore where it was not disputed that there was an infringement by defendant the question of the extent of the infringement will not be reviewed.

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Though an earlier patent was not set up in the answer or by notice, it is admissible in an infringement suit as evidence of the state of the prior art and to aid in construing the claims of the patent asserted to have been infringed.

5. SAME-ACTIONS-EVIDENCE.

Though a prior patent was a mere paper patent and there was no evidence that the invention had ever been used, it is admissible on the question whether a device infringes a subsequently-issued patent.

6. SAME VALIDITY-ANTICIPATION.

The Block Patent No. 1,127,349, for the support of the anterior metatarsal arch of the foot, Held, in view of the prior art, to have been anticipated and not to show invention, as to claim 1, for a flexible insole having a portion located beneath the anterior metatarsal arch of the foot of the wearer and means for adjusting the thickness of the insole at one or more points along the line of such arch.

7. SAME SCOPE-INFRINGEMENT.

Block Patent No. 1,127,349, claim No. 2 Held limited by the language of the claim, and, as limited, not infringed.

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Where a patentee was not the first in the field and there had been earlier similar inventions, the scope of the invention must be deemed limited by the language of the claim to the construction therein specified.

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The issuance of a patent creates a prima facie presumption of a patentable difference between the device for which a patent was issued and an earlier patented invention.

10. SAME-INFRINGEMENT.

The Block Patent No. 1,061,353, for an arch-support, claims 1 and 4, which present the combination of an insole member, an insertion, and self-contained means carried by the insole member and insertion, whereby the insertion may be detachably secured at predetermined points, Held not infringed. APPEAL from the District Court of the United States for the Second Division of the Northern District of California; Wm. C. Van Fleet, judge.

Suit by Alexander E. Block and the Wizard Foot Appliance Company, a corporation, against the Wonder Manufacturing Company, a corporation. From a decree for injunction and order directing an account of profits and damages for infringement of trade-marks and patents, defendant appeals. Remanded with instructions to dissolve the injunction as to certain patents; the decree being otherwise affirmed.

Mr. Charles E. Townsend and Messrs. Dewey, Strong & Townsend for the appellant.

Mr. Wm. A. Smith and Mr. James Love Hopkins (Mr. N. A. Acker of counsel) for the appellees.

Before GILBERT, Ross, and HUNT, Circuit Judges.

GILBERT, Cir. J.:

This is an appeal from a decree of injunction and an order directing an account of profits and damages for infringement of three trade-marks and four patents, all issued to Alexander Block, and all

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