against traffic injury. The device met with approval in the art and displaced other devices such as concrete or stone curbs used for that purpose.

The defense was lack of invention, over a French patent to Freese cited by the Examiner, which showed an anchoring device having a vertical flange just high enough to retain the bottom edge of the outer row of wooden blocks to hold the pavement against expansion in hot weather. It did not serve as a protecting edge against traffic injury, nor as a retaining form, nor as a limiting edge for the upper layer of plastic material. The Court found in favor of the patentee.

During the prosecution of the case in the Patent Office, claim 4 was rejected on the French patent. It was then amended to include the limitation that the vertical flange extends to the upper edge of the roadway and forms a boundary therefor. In the argument, it was pointed out that the claim distinguishes from the French patent by this additional limitation. Defendant argued that this limitation is not a patentable one and since plaintiff rested his case thereon, he is estopped thereby and can not now be heard to say that the invention may be found elsewhere in, or in connection with the device. The Court held that the rule of estoppel applies only when the inventor seeks to broaden his claim to cover a device excluded by his confession and avoidance during the proceedings in the Patent Office. There is no reason nor authority for barring an inventor from alleging that his device was in fact patentable for reasons other than the one given in his amendment. The conclusion of the Examiner to allow a claim, like the conclusion of an equity trial court to enter a particular decree will be approved, if it was right, although the reason given is not sound, (300 Fed. 872-3).

To this sound reasoning of the Court may be added the fact, that a claim properly drawn to define over the art cited does not need any support in the argument and that many a time an Examiner allows a claim in spite of the attorney's arguments.

A. B.

MERREL-SOULE CO. v. POWDERED MILK CO. OF AMERICA. District Court. W. D. New York. August 26, 1924. 2 Fed. (2d) 107.

The defendant company had infringed plaintiff's patented process for making powdered milk. An award representing profits was given by the master. Among other exceptions taken was that there were no profits as defendants total business showed a loss, as he had purchased whole milk instead of skim milk which would have been sufficient for the powdered milk process. If the business were unitary there were no gains or profits recoverable but the court pointed out that it was feasible to separate the powdered milk business from the butter and cream business on which alone the loss due to the purchase of whole milk must be charged. Further, the infringing part could have been carried on, and the profits realized, as a separate business.

Award, with slight modification, sustained.

A. E. D. THE OPEN HEARTH STEEL FURNACE CO. v. YOUNGSTOWN SHEET & TUBE CO. (District Court, N. D., Ohio, E. D., March 24, 1924). Westenhaver, Dist. J.

This is an infringement suit on claims 1, 2, 5 and 8 of the Naismith patent 1,220,444. The usual defenses of noninfringement and nonvalidity of the patent were offered. Held, without considering the question of validity, that the patent was not infringed.

The patentee had invented, inter alia, a means to prevent the fluxing of the upper portion of the furnace into the base of the furnace. More specifically, he had invented a means of preventing the side walls of a furnace usually having an acid brick lining from fusing into the supporting base of the furnace usually having an expensive basic brick lining. This fusing, in furnaces of the prior art, took place at the juncture of the two brick linings. To hinder this fusion and to support the slag and steel out of contact with the expensive basic lining,

a bed of dolomite usually was employed which covered the basic lining and was banked up on the sides to cover the juncture of the two linings. In spite of this, the acid lining wall, at the juncture, under the intense heat of the furnace above the slag, would eat through the dolomite bank and into the basic brick and ruin the furnace, or, else, cause suspension of operation long enough to make the necessary repairs.

The patentee provided a series of removable water cooled tanks which he placed at the juncture of the two linings, thereby spacing them apart, these tanks abutting the dolomite banks. To relieve the tanks of the weight of the walls, he further provided angle irons supported by an outside frame work, one web of the angle irons supporting the brick wall. The tanks were inserted in position beneath these angle irons.

The prior art shows tanks in a multiplicity of positions, and one patent, in particular, shows a tank at the juncture of the two linings extending about half way through the wall and so made as to be removable. One of the broad claims sued on was:

"In the combination of a furnace provided with basic and acid linings, and water cooler positioned between said linings to prevent their fluxing.

Although the court did not pass on the validity of the claims, in construing their scope, it said:

"In the light of this prior art, I am of the opinion that it was not open to Naismith to claim as novel, or as his own, the broad idea of any shape or form of water cooler for an open hearth furnace, whether installed in the slag zone or at the joint of the silica and magnesite brick walls. His invention, if any there is, resides in the specific form of water cooler disclosed by his specifications and drawings, intended and designed to serve the purpose of a neutral joint in combination with other elements for supporting the silica side wall and making the coolers readily detachable and quickly removable in case

of need. Claims 1, 2, 5, and 8 relied on, must be construed in connection with the drawings and specifications, and should not be given a construction broader than is necessary to protect Naismith's invention as thus specifically set forth and described. Defendant's construction is more nearly akin to the prior art than to Naismith's furnace; in fact, it does not seem to differ materially from some of the cooling devices of the prior art. If claims 5 and 8, the broad claims relied on, were to be given a construction broad enough to include defendant's cooling device, then, in my opinion, these claims would be thereby invalidated.

M. H.

OF GENERAL AND PERSONAL INTEREST.

Mr. Harold B. Whitmore, an assistant patent examiner in Div. 48, resigned February 11, 1925. Mr. Whitmore was appointed May 12, 1922, from Mass., and has been examining patents in Class 175, General Electrical Applications.

Mr. Whitmore, who took the degree of B.S. at Worcester Polytechnic Institute, is resigning because of ill health.

Mr. Raymond Babigan, a junior patent examiner of Division 47, resigned March 7, 1925. Mr. Babigan was appointed Aug. 1, 1924, from Massachusetts, and has been examining Class 267, Spring Devices. He has taken the degree of B. T. C. from the Lowel Mass. Textile School, and he is leaving to go with the Bridgewater Woolen Company, of Bridgewater, Vt., where he will have charge of the dyeing department.

Mr. A. R. Henry, a junior patent examiner in Division 45, resigned February 15, 1925. Mr. Henry was ap

pointed on July 9, 1923 from New Jersey.

Mr. E. D. Johnson, a temporary junior patent examiner in Div. 51, resigned Feb. 15, 1925. Mr. Jackson was appointed October 16, 1924, from Wisconsin.

Mr. O. I. Levy, an assistant patent examiner in Division 50, resigned February 15, 1925. Mr. Levy was appointed Aug. 26, 1916, from Louisiana.

Mr. Joseph N. Nielsen, an associate patent examiner in the Interference Division, was transferred March 16, 1925, to the Navy Department. It is understood that he is to be in charge of the patent section of that Department, which has recently been established. Mr. Nielsen was appointed Sept. 9, 1907, from Illinois. He served five years in Division 31, and for the past five years has been in the Interference Division.

PATENT OFFICE SOCIETY.

COMMITTEES.

In the February, 1925 issue of the Journal, on page 306, the name of Mr. Otto B. Roepke was incorrectly given as Otto B. Rolphe.

Succeeding Messrs. Levy and Whitmore and Miss Marlowe, who have resigned from the office, the following new appointments have been made to society committees: Education: Franklin L. Adams, Div. 43 Social: Abraham D. Caesar, Div. 53. Membership: Charles M. Palmer, Div. 48. Tennis: Edward B. Beale, Div. 32. Golf: Abraham H. Winkelstein, Div. 2.

EMERSON STRINGHAM, President.

SPRING DANCE-APRIL 25.

The Patent Office Society will give its Spring Dance at Meridian Mansions, also known as 2400 16th Street, on Saturday, April 25, 1925. Patent attorneys and their friends are invited. Subscription $2 a couple. Informal.

Tickets may be obtained from members of the Social Committee: R. J. Eisinger, Room 269, E. V. Benham, Room 146-Annex, M. A. Crews, Room 307, Miss Ruth Greene, Room 135, M. C. Rosa, Room 324, I. H. Roser berg, Room 320, A. D. Caesar, Room 112.