bodying the feature of the relay; but we think it clear that the principle of these claims was first introduced into the patent sometime after the application was filed, and after the art had already independently reached the same stage of development. The case is not one where there was originally adequate disclosure, the full effect and advantages of which were not appreciated by the inventor, and the change was not the result of a more complete understanding of the operation of the invention first claimed, but of the substitution of a new mode of operation, which not only the applicant had not even intimated originally, but which a part of his specification actually contradicted.

In elaboration of this thesis it may perhaps be of service to state in more terms than we originally did the meaning of the term “invention" in this connection. The specification of a mechanical combination patent generally discloses a machine consisting of a large number of elements, most of them individually old in the art. The invention consists in the act of selecting some of these elements for a combination which constitutes an independent entity, serviceable to the art and theretofore unknown. It is always this choice of the proper elements in combination which constitutees the invention. Now, it is obvious that from even a few elements disclosed in such a specification an enormous number of possible choices may be made, and if an applicant were free to substitute new elements in his original combination from any of those disclosed, he might change his invention as he pleased. The final invention would not then date from the application, but from the issuance of the patent. So it has always been customary to insist that such substitutions must be limited, so as not to constitute radical departure from the combination first selected; and this is especially the case where the result is to anticipate inventions already made by others. It is true that under the term "radical" there is room for some deviation from the strictness of a rigid application of this rule, but the permissible latitude depends in large measure upon the intermediate growth of the art.

Now, in the case at bar, the elements selected before January, 1912, were, as we have shown, limited by the feature of the mechanical clutch. It was this which Leonard selected as the constant element in nearly all the claims which he proposed for his invention. Those in which it did not appear are remote from the case. To select the function of the relays as creating maximum and minimum variations in the charging current was a wholly new idea. It involved confessedly the abandonment of the clutch as a necessary element, and it substituted elements which not only he had not even suggested as essential, but which were actually absent from a part of the disclos

ure. It is idle to answer that the Patent Office insisted that those parts of the disclosures from which the relays were omitted constituted independent inventions, which must be divided out. The important point is that their presence was irrefutable proof that Leonard himself did not consider them contradictory of the combination on which he had relied. Unless we are to treat the application as wholly fluid until the final claims are evolved, we see no escape from the result already reached.

The motion for a rehearing is denied.

[Supreme Court of the United States.]

ABERCROMBIE & FITCH COMPANY AND JUSTRITE MANUFACTURING COMPANY V. BALDWIN AND JOHN SIMMONS COMPANY.

Decided December 10, 1917.

246 O. G., 567; 245 U. S., 198.

PATENTS-VALIDITY OF REISSUE-ACETYLENE-GAS-GENERATING LAMP.

The Baldwin reissue patent, No. 13,542 (original No. 821,580), for acetylene-gas-generating lamp, claim 4, the principal features of which are that the water tube extends down into the mass of the carbid and that within it is a movable rod or stirrer which controls the flow of water and also is used to break up the slaked carbid which cakes at the delivery end of the tube, was not anticipated, discloses invention, and is not invalid as broadening the invention of the original patent, because the rod is not limited to one having a bent arm.

ON WRIT of certiorari to the United States Circuit Court of Appeals for the Second Circuit.

Mr. Charles K. Offield and Mr. James R. Offield for the petitioners. Mr. James Q. Rice for the respondents.

Mr. Justice MCKENNA delivered the opinion of the Court.

Suit for infringement of a patent embraced in Letters Patent No. 821,580 and a reissue thereof, No. 13,542.

The suit was originally brought by Frederick E. Baldwin, patentee. John Simmons Company, licensee, having the exclusive right to manufacture and sell the patented device, subsequently intervened and became complainant.

The patents are for a lamp designed to generate and burn acetylene or similar gas "intended for use," to quote the description of the patents

and adapted to use as a bicycle, automobile, yacht, or miner's lamp, or for any other analogous purpose, it being necessary only to change its form or dimensions to adapt it to any one of the purposes mentioned.

Stress in this case, however, is put upon the use of the asserted invention as a miner's lamp, such use conspicuously displaying its commercial utility.

Answer was filed by the Justrite Manufacturing Company, who was made a party defendant to the suit as manufacturer of the asserted infringing lamp, and by stipulation its answer was considered the answer of the Abercrombie & Fitch Company. It denied invention with great detail, set up anticipating patents, denied its utility, attacked the validity of the reissue on the ground that the first and fourth claims of the original patent were held invalid by the United States Circuit Court of Appeals for the Seventh Circuit (Bleser v. Baldwin, 199 Fed. Rep., 133), and for the further reason that the application for the reissue was not made until seven years after the original Letters Patent were issued and rights had accrued in the meantime to defendants (petitioners here) and to others. Infringement was denied.

A decree was passed sustaining the validity of the original patent and of the reissue, the originality of the invention and its utility and adjudging defendants (petitioners) had infringed claim 4 of the reissue, that plaintiffs recover the damages they had incurred by reason of the infringement and the profits defendants had received, an accounting being ordered for this purpose. A perpetual injunction was also adjudged against further infringements. (227 Fed. Rep., 455.) The decree was affirmed in all respects by the circuit court of appeals (228 Fed. Rep., 895) and subsequently this certiorari was granted.

The plaintiffs (we shall so designate respondents) struggled through some years and some litigation to the success of the decrees in the pending case. In a suit brought in the District Court for the Southern District of Illinois a device like that of the defendants herein was held to be an infringement of certain claims of the original patent. The holding was reversed by the Circuit Court of Appeals for the Seventh Circuit. (Bleser v. Baldwin, 199 Fed. Rep., 133.)

Subsequently, the reissue having been granted, suit was brought in the Western District of Pennsylvania against an asserted infringer. Unfair competition was also alleged, and, holding the latter to exist, the court granted a preliminary injunction. (210 Fed. Rep., 560.) Upon final hearing that holding was repeated, and infringement of a claim of the reissue patent decreed. (215 Fed. Rep., 735.) The decree was reversed by the circuit court of appeals (third circuit) on the ground that the claim of the reissue patent found to have been infringed was broader than a corresponding claim of the original Letters Patent and therefore void. The holding of the district court

as to unfair competition was sustained. (Baldwin et al. v. Grier Bros. Co., 219 Fed. Rep., 735.) Aided by the reasoning in the opinions of those cases and the discussion of counsel, we pass to the consideration of the propositions in controversy.

First, as to the original patent. Its contribution to the world's instrumentalities was, as we have said, an acetylene lamp and was represented by the following figure, designated as Figure 1.

It will be observed that the device consists of a receptacle divided into two compartments, an upper one for water and a lower one designed to serve as a gas-generating chamber, adapted to contain a receptacle for calcium carbid, which is attached to and forms the detachable bottom. There are means of introducing water into the reservoir and thence to the carbid and means of conducting the gas to the burner.

The device is a means of using the gas (acetylene) formed by the decomposition of water with calcium carbid and necessarily must bring them into contact in an effectual way and use the gas generated in a controlled flow. A tube L hence leads from the water reservoir into the carbid receptacle and forms a duct which introduces the water into the body of the carbid. Various means, the specifications recite, have been employed to regulate or control the flow of water to the carbid, which were found objectionable or not. adequate.

The patentee then says that the method which he has invented "for securing the proper feed under all circumstances" withoutobjectionable features is to make the bore of the duct of comparatively large size and then restrict the duct by means of a wire or rod preferably centrally located therein to leave a channel of the proper size.

It is then said:

This arrangement is simple; but in a long experience it has been found to be entirely successful. It is possible to secure the correct drop-by-drop feed

with a duct of considerable size, since the friction of the water on the large
area of the tube wall and wire reduces its flow. This retarding friction may be
regulated by varying the size of wire used. The duct does not become choked,
since if foreign particles are deposited therein the water can take a zigzag
course around it without the supply being appreciably affected. If it is at any
time necessary to clean the tube, the wire is simply reciprocated and rotated
a few times from the outside of the lamp without disturbing the position of
other parts. This nice regulation of the flow enables me to entirely dispense
with the troublesome adjustment of the valve.
In some cases, how-
ever, there is employed in connection with the means for introducing water
into the mass of carbid a device in the nature of a stirrer, which on proper
manipulation may be used to break up the mass of carbid surrounding the
outlet of the water duct and which by having become slaked and caked by the
action of water prevents the proper percolation of the latter to the unslaked
carbid in the receptacle G, Fig. 1. As such device I employ a stem or rod
N, which extends down through the tube L and is bent at substantially right
angles to form an arm N'.

There is also a figure attached to the patent which shows a valve upon the constricting rod, and it is said:

*

*

This rod may form a prolongation of the valve stem or in case no valve is used may extend from the top of the lamp down through the water reservoir,

and this is illustrated by figures.

As calcium carbid possesses strongly absorptive properties, the introduction of water through the tube L will result in the gradual slaking of the material about its outlet; but the lime thus produced becomes gradually less permeable to the water, so that an insufficient quantity of gas is generated to maintain the proper flame. When this becomes noticeable, the rod N is turned, so as to cause the arm N' to break up to a greater or less extent the mass of lime, and in practice I have found that under ordinary conditions this is amply sufficient to insure a substantially uniform generation of gas until all of the carbid in the receptacle G is exhausted.

There are some further descriptive details not necessary to be repeated, and this was said:

The specific construction of the various parts of my lamp may be, as will be seen from a consideration of the nature of the improvements, very greatly varied without departing from the invention.

The claims of the patent which are pertinent to our inquiry are as follows:

1. In a lamp of the kind described, the combination with a water-reservoir, and a receptacle for calcium carbid, of a tube extending from the former a considerable distance into the latter so as to be embedded in the mass of carbid contained in said receptacle, and a rod or stem extending through said tube into the carbid-receptacle and having its end formed as a stirrer to break up the slaked carbid around the outlet of the water-tube, as set forth.

2. In a lamp of the kind described, the combination with a water-reservoir, and a receptacle for calcium carbid, of a tube extending from the former into the latter so as to be embedded in the mass of carbid contained in the receptacle, a rod extending from a point outside of the lamp through the tube