each kind of solution, adapted for use in connection with a compressed air receiver. A valve at the top of each bottle was provided with inlet and outlet ports capable of being opened or closed by turning a faucet. The inlet port of each bottle was connected with the compressed air receiver and also with an atomizing tube descending into the bottle, By turning the faucet the compressed air passed into the bottle and down the tube, producing vapor in the manner we have already mentioned in connection with the first patent in suit. To the outlet port of each bottle was attached a flexible tube ending in a mouthpiece or nozzle. Through these tubes the vapor under pressure communicated through the bottle from the compressed air receiver was forced into the passages and cavities of the body to be treated by a process of dilatation. The author also described in detail the process of vapor massage by changing the continuous current of vapor into one that was intermittent, and this was accomplished by the rapid manipulation of the passages of the body into which the vapor was introduced. This process he called "massage." Thus he says: "The undulations of the impacted nebula will render the mouth of the Eustachian tube more patent and act as a massage on the diseased tissues of the midlde ear, equalizing the circulation and tending to break up adhesion of the ossicles by causing them also to vibrate." Again: "In my practice, however, in massaging the diseased, paralyzed, atrophied, or hypertrophied tissue and in dilating the Eustachian tubes, and in medicating and breaking up adhesions in the middle ear, the best results have been obtained by using a pressure of from 30 to 50 pounds.” Again: "But nebula, impacted from nonvolatile medicaments and administered by forced dilatation with gentle but rapid vibration, offers the only safe and efficient method for medicating and massaging the middle ear." The assertion by the complainant that he discovered a novel method of treatment which may be termed "vapor massage" is in view of this article which preceded his entry into the field certainly unfounded. The method is particularly described and the term "vapor massage" is plainly suggested by the language of the article; and it required no inventive faculty to discover that the desired intermittent effect of the current of vapor could also be produced either by compressing and releasing the discharge tube if it were sufficiently pliable, or by the manipulation of a control faucet at the top of the storage bottle. If, in the apparatus which the author of the article described, there had been a valve in the discharge pipe constructed to open and close rapidly, and to thus control the discharge of the vapor, it would have completely anticipated the second and third claims of complainant's patent. In the Emery patent, No. 196,206, October 16, 1877, the apparatus is adapted, among other things, to the treatment of weak or diseased lungs. It shows a storage chamber for vapor or air, medicated or pure, under pressure, in connection with a separate receptacle for water, medicated liquid, gas, or any suitable substance or composition wherewith it is desired to saturate or charge the air in the chamber. In this receptacle is a dependent tube through which the air is forced on its way to the storage chamber. The outlet or discharge tube of the chamber is equipped with a cock or shut-off as a means of controlling the passage therefrom. The apparatus set forth in the Kennedy patent, No. 422,802, March 4, 1890, is for medicating, compressing, and administering air into the respiratory organs. There is a combination of a compressed air reservoir connecting on one side with an air pump, and upon the other with a number of bottles in each of which is a dependent tube. The connecting pipes into and out of the air reservoir are equipped with stopcocks. The connection with the bottles is so arranged that air under pressure is forced into them and down the tubes to a contact with the contents. In each bottle is an outlet port having immediate connection with a flexible discharge pipe, to the end of which is attached a nozzle for insertion in the mouth or nose of the patient. The stoppers of the bottles in which are located the inlet and outlet ports are equipped with valve plugs. The inlet ports are larger than the outlets to assist in the maintenance of the pressure. In the specifications it is said that in practice the bottles "are designed for the reception of the medical agents with which the air is intended to be medicated in the usual manner by vaporizing small portions thereof in passing through said agent." We therefore have in the Emery patent all of the elements of claims 2 and 3 of complainant's patent, excepting, possibly, the atomizing device, and substantially all of them in the Kennedy patent-an atomizing device, a chamber for storage under pressure, a valved outlet, and a tube or nozzle leading therefrom. It is true that there is no detailed description of the atomizing tube in either of these patents, but none of any special structure is required by the second and third claims of complainant's patent, and any device capable of atomizing would suffice. It will be noticed in this connection that Kennedy speaks of the vaporizing of small portions of the solution by the passage of air under pressure through his tube. In the Kennedy apparatus each bottle serves the double purpose of containing the atomizing device and constituting the storage chamber. In this respect it is similar to the eureka nebulizer, which, notwithstanding such construction for the double purpose, the complainant contends infringes his patent. The Robertson patent, No. 549,822, November 12, 1895, discloses an apparatus "for atomizing, mixing, and administering liquid medicines," which is precisely like that of complainant, excepting that an outlet valve is lacking. With the outlet valve of Emery or Kennedy for the purpose of controlling the discharge of the vapor we would have in all respects a structure built upon the lines of complainant's. There is in Robertson's the same collection of bottles, each equipped with an atomizing tube of the eureka type, each connected with a tube conveying compressed air, a large central receiver bottle in which the vapors from the atomizing bottles are collected and mixed, and from which they escape by means of a discharge tube ending with a nipple for insertion into the mouth or nose. The Palmer patent, No. 386,025, July 10, 1888, is for an apparatus for atomizing liquid by compressed air received from a reservoir. It shows a globe with inlet and outlet tubes entering at the side, an atomizing device within the globe; the upper part of the globe constituting a storage chamber. The outlet pipe connects with a flexible hose ending in a tip. With the addition of an outlet valve this structure would answer to complainant's claims 2 and 3. It seems clear from the foregoing that the complainant simply pursued a road previously opened and improved by others, and that he secured an old result by substantially the same means that had theretofore been employed. There is another matter that deserves notice in connection with thes claims. While the complainant's application was pending in the Patent Office, claim 2 was rejected by the examiner because of anticipation by the Emery and Palmer patents. The examiner said: "This patent [the Palmer] shows a receiving chamber above the atomizer, and there is no invention in providing the outlet from the receiver with regulating means as this feature is shown in the Emery, No. 196,206, October 16, 1877." And claim 3 of the patent (it was claim 4 of the application) was also rejected on the same references, "because the cut-offs shown in Emery may be opened and closed in rapid succession." After amendment by the applicant it was then held by the examiner that claim 2 was not changed in substance and stood rejected, and that the claim which is now numbered 3 in the patent was also rejected on the previous references. The examiner added: "The references show that it is old to store vapor under pressure and to provide a valved outlet. The rapid operation of the discharge valve has reference to the manner of using the apparatus and not to its construction." In this connection attention is directed to the action taken with reference to claim 17 of the application. It was as follows: "In a vaporing [vaporizing] inhaler the combination of a vaporizer; a receiver or chamber for storing the vapor under pressure; a delivery pipe or tube; a tip for said pipe or tube adapted to insert into the nose or mouth; and a valve adapted to open and close the pipe in rapid succession to control the passage of vapor through the pipe for the purpose specified.” Upon rejecting this claim the examiner said: "Claim 17 is considered to present nothing patentable over the references in the case which show that it is old to store vapor under pressure, to provide delivery tubes with tips, and to have controlling valves, which may be operated more or less rapidly." An appeal was taken by the complainant from the action of the primary examiner to the board of examiners in chief, with result that the rejection of claims 2 and 3 was reversed and the rejection of claim 17 was affirmed. As to the latter the board said: "Claim 17 is anticipated by the Emery patent. The substitution of an old form of tip in that device requires no new construction. Every other element of the claim is found in such device." Claim 17 was therefore canceled and does not now appear in the patent. The significance of all this is that, while claim 17 of the applica tion was finally disallowed on the ground of anticipation, it is precisely the same as claims 2 and 3 of the patent. Counsel seek to avoid the significance of this inconsistency by claiming that, while claim 17 specified a vaporizer as one of its elements, it did not have among them an atomizing tube to produce atomized vapor. In other words, he seeks to make a distinction between a vaporizer and an atomizer. This will not do. A vaporizer is expressed to be one of the elements of claim 17, while in claim 2 there is specified an "atomizing device" and in claim 3 "a suitable atomizer" appears. In the production of vapor by bringing air under pressure into contact with the liquid, the terms "atomizer" and "vaporizer" are used interchangeably. In complainant's first patent he refers to the product of his atomizer as a spray which may be inhaled by the patient. In his second patent he uses the terms "atomizer" and "vaporizer" interchangeably, and he refers to the product of his device as a "spray of liquid or vapor." He also calls his atomizer or spraying tube a "nebulizing tube." In the other patents relating to the art the cloudlike product is indiscriminately referred to as "spray," "vapor," "fine atomized product," and "familiar atomized condition.' Dr. Hawley spoke of it in 1894 as "nebula." In the specifications in the Palmer patent it is said: "Although we have used the term 'atomizer,' it will be understood that in ordinary practice, blowing in liberal quantities of warm dry air ready to absorb the vapor, the liquid is in the course of the treatment evaporated, and its vapor mingles with the air and is conveyed to the lungs through the inhaling tube in the form mainly of vapor. The terms 'atomizer' and 'vaporizer' may be used in this relation as equivalents." The result of this is that the presumption which attends the issue of a patent and of which the patentee is entitled to avail himself is in this case seriously impaired. Claim 8 of the second patent in suit is not infringed. The complaint in that respect is more on account of a superficial similarity of consruction that bears on the question of unfair competition than because of a supposed infringement. It is conceded that the particular device in 'defendants' structure which looks like that embodied in claim 8 has no function whatever. 3. Embodied in complainant's bill is also a charge of unfair competition, in that the defendants, by copying the form of his apparatus and by using certain phrases and catch words in advertising matter, were deceiving the public into the purchase of their instruments under the belief that they were purchasing those of the complainant. The complainant possessed no trade-mark and no design patent securing to himself the exclusive right to the form or dress of his apparatus. And we fail to discover in the record any evidence of fraudulent intent upon the part of the defendants to palm their goods off on the public as the goods of the complainant or as manufactured under his patents. The general resemblance was not such as to deceive the class of persons who would naturally be expected to be interested in or to purchase articles of that character. Moreover, those of the complainant were permanently marked as issuing from "The Globe Mfg. Co., Battle Creek, Michigan, U. S. A.," while those of the defendants were as indelibly marked "O. Q. Holman, La Grange, Ill." The name "Globe" appeared. upon the former and the name "Eureka" upon the latter. Thus far the defendants did not offend. See Singer Mfg. Co. v. June Mfg. Co., 163 U. S. 169, 16 Sup. Ct. 1002, 41 L. Ed. 118. The literature used by the defendants in advertising was equally distinguishable from that of the complainant, in fact, so much so as to relieve them from the slightest imputation of unfair dealing in that particular. In this same connection the complainant complains of the use by the defendants of the terms "vapor massage" and "multi-nebulizer," of which he says he was the inventor and first user. But both of these terms are purely descriptive, the former of a method of massage described by Dr. Hawley in 1894 and the latter of any instrument composed of several atomizers, vaporizers, or nebulizers so arranged as to be used in common and in concert. From the mere circumstance of their use by the defendants we cannot infer a fraudulent intent to sell their goods as those of the complainant, especially since they have plainly and expressly indicated to the contrary by the brands permanently fixed upon the appliances they put forth and by the language of their advertising literature. The decree of the Circuit Court is affirmed. SANBORN, Circuit Judge (dissenting). The invention secured by the second claim of letters patent No. 483,385 was not, in my opinion, the combination of numerous mechanical elements, or the combination of the specific parts of which the mechanical device there claimed was composed, but it was "the two parts spraying tube having a side open-: ing in the lower member and a hollow coupling connecting the two members, said coupling having a side opening to register with the side opening in the tube substantially as described." The description in the specification was that the upper or air tube should be connected to the lower or liquid tube by a hollow coupling with a nipple at each end, which might be screwed into the respective tubes, and that the nipple which entered the lower tube should be flattened on one side and should be provided with a side opening which should register with a similar side opening in the liquid tube. This specification disclosed two new things: (1) A spraying tube in which the atomizing blast was applied to the liquid within, instead of without the liquid tube; and (2) a spraying tube separable into three parts in lieu of one separable into two parts or of one made in a single piece. The purpose of the improvement was to better atomize liquids. This end was accomplished. by applying the blast of air within the tube which contained the liquid, instead of without it, as had been done previous to this invention. The location and registering of the side openings in the air tube and the liquid tube conditioned this improvement, and it was unaffected by the union or separation of the various parts of the spraying tube. The question which the patent presents becomes, therefore, really a question of construction. If it be interpreted to secure a spraying tube composed of three separable parts, it is clearly void for want of invention, for, where, as in the case at bar, the performance of the function of the device is unaffected thereby, the division of a spraying tube into two or |