"The chamber is provided with a single opening in its bottom, merely to allow the heavier or saturated atmosphere to pass out, and sufficient air to come in to compensate for that. The principle is totally different from that in the cited references, which, even admitting them to disclose air circulation, certainly do not disclose air circulation as above described, which forms the basis of claims 1 to 8." This argument was urged upon the Patent Office when the Frankenburg patent was cited as an anticipation. It is now claimed that this reference to this opening being in the specifications, and the importance attached to it at the time the application for the patent was being considered, makes it a part of this patent, and, as the defendant's device does not contain this opening, he does not infringe. It appears from the evidence that this opening in the back part of the room plays no part whatever in the process of drying. The specifications in this case unnecessarily referred to this opening, which it now appears is entirely a useless matter so far as contributing toward effecting the result attained by the patented room is concerned. The fact that they erroneously included it at the time does not now restrict them to a combination including this opening, especially as they have made no reference to it whatever in the claims of the patent. U. S. Mitis Co. v. Carnegie Steel Co. (C. C.) 89 Fed. 343; Sugar Apparatus Co. v. Yaryan Mfg. Co. (C. C.) 43 Fed. 140; Eames v. Andrews, 122 U. S. 40, 7 Sup. Ct. 1073, 30 L. Ed. 1064. The evidence shows defendant's room imbodies the combination described in patent No. 684,776, and claimed in the first six claims therein, with the device described and claimed in patent No. 684,778, in claims hereinabove set forth. The complainant's bill is therefore sustained, and a perpetual injunction awarded. SHELBY STEEL TUBE CO. v. DELAWARE SEAMLESS TUBE CO. et al. (Circuit Court, E. D. Pennsylvania. February 20, 1907.) 1. PATENTS-SUIT FOR INFRINGEMENT-PROOF OF ASSIGNMENT. An assignment of a patent is sufficiently proved in a suit by the assignee for its infringement by the testimony of one of the subscribing witnesses, unless there is some special reason for requiring more. 2. SAME DELIVERY. That an assignment of a patent was recorded, and is produced and put in evidence by a subsequent assignee, in a suit for infringement, is sufficient evidence of its delivery. 3. SAME-SUFFICIENCY OF ASSIGNMENT. A conveyance by a corporation of all of its property, including its "good will, patents, trade-marks," etc., is effective to pass title to a patent then owned by it, although not described therein. 4. SAME-UNRECORDED ASSIGNMENT. An assignment of a patent is effective to pass title as against an alleged infringer, although not recorded. [Ed. Note. For cases in point, see Cent. Dig. vol. 38, Patents, § 279.] 5. SAME-INFRINGEMENT-CHANGE IN FORM. Except where form is of the essence of the invention in a patented device, it is of little weight and a variation therefrom, while retaining the principle and mode of operation of the invention will not avoid infringement. [Ed. Note. For cases in point, see Cent. Dig. vol. 38, Patents, § 372.] 6. SAME. Where the mechanism of an alleged infringing machine is substantially the same as that of the patent, the fact that for some reason, designed or · otherwise, its operative effect is made to vary, cannot be altogether accepted as avoiding infringement, especially where the variance is the result of not doing all with the mechanism that might be done; its possibilities under ordinary and proper use being the test. [Ed. Note. For cases in point, see Cent. Dig. vol. 38, Patents, §§ 372, 373, 380.] 7. SAME-MACHINE FOR MAKING TUBING. The Stiefel patent, No. 551,340, for a mechanical device for making metal tubing, while only for an improvement upon that of the prior art, covers an improvement of value, and was not anticipated and discloses invention; nor is it strictly limited to a construction in which a plane or flat surface of one of the disks by the action of which the tube is shaped is opposed to a beveled surface on the other. Also held infringed. In Equity. Thomas W. Bakewell and Charles MacVeagh, for complainants. Charles K. Offield, for defendants. ARCHBALD, District Judge.1 The patent in suit is for a mechanical device for making metal tubing. It was granted to R. C. Stiefel December 10, 1895, and title is now vested in the complainants by sundry mesne conveyances. This is denied by the answer, and contested here; but is sufficiently established. The objection to the assignment from the patentee, that it was not proved by both the subscribing witnesses, is captious. It is elementary law that but one need be called, except where there is some special reason. 17 Cyc. 435. Still less is there in the suggestion that there is no proof of delivery. Not only was the assignment put on record, which is itself evidence of a delivery, but it was produced before the examiner by the complainants, showing that it is in their possession, and is presumed to have got there regularly. Pray, what would the respondents have more? It is further said, however, that the subsequent assignment to the complainants is ineffectual, because there is no description of the patent, and because it was not recorded. But the assignment, in terms, is of all the property of the company executing it, in whom title was vested at the time, specifically including, also, "the good will, patents, trademarks," etc., which certainly was good as a conveyance between the parties, and much more as against a stranger. It has been held that a sale on execution of all the property, rights, and franchises of an insolvent corporation was effective to pass title to a patent owned by it. Erie Wringer Mfg. Co. v. National Wringer Co. (C. C.) 63 Fed. 248. And, if so, why not also a voluntary conveyance in similar terms? It is of no consequence that in this indefinite shape the assignment was not in a condition to be recorded; the only purpose of this being to protect subsequent bona fide purchasers for value. 22 Am. & Eng. Encycl. Law (2d Ed.) 418. It is somewhat strange, however, that so important a matter should be left open to question when it was so easily remedied. 1Specially assigned. 151 F.-5 The standing, if not the validity, of the patent, is also challenged. Turning for its determination to the earlier art, it is interesting to observe that metal tubing came into vogue with the invention of illuminating gas, in 1815, in England; the discarded musket barrels thrown out by the termination of the continental wars being utilized for that purpose. This was followed at a later stage by lap-weld and butt-weld tubes, which were made by heating a strip of sheet iron or steel to a proper heat, and then bending it into tubular form, with overlapping edges, and welding them together on a mandrel, for the one; and by drawing the sheet through a ring, or bell-shaped die, and forcing together and welding the abutting edges, for the other; the strength of each depending upon the success of the weld. This was the condition. of things until 1885, when it was discovered by Mannesmann, a German, that tubes could be produced without seam or weld by passing a metal billet or blank between converging beveled disks or rolls, revolving in the same direction, by which it was flattened and compressed and subjected to a violent kneading action, which ruptured and opened. up the center; and the billet in that condition, being forced forward against the point of a piercing mandrel, located at the axis of the pass, was further opened and shaped between the rolls and the mandrel, a hollow seamless tube being the result. This was a notable advance, to which everything that follows must bow. But it still left something to be desired. A great variety of devices are shown in the numerous Mannesmann patents, taken out upon it, but the one characteristic which appears in them all is that the rolls are symmetrically placed, with their axes in parallel planes, and the same sized diameters always opposed. The consequence is that, the surface of the billet being subjected to a different speed of rotation as it advances between the converging lines of the rolls by which it is gripped, a violent spiral wresting or twisting of the particles or fiber of the metal is produced. This seems to a certain extent to have been regarded as an advantage, and patents based upon it are found. And it may, indeed, impart a certain structural strength to the tube. But steel billets are cast, and so crystalline in character, and the twisting opens up any cracks or flaws, because of the extreme surface tension. Superficial defects frequently exist, and, being aggravated in this way, an elongated longitudinal seam is produced, winding around the tube and making it worthless; a material percentage of the product having to be consigned in consequence to the scrap heap. Mannesmann seems in the end to have recognized that this more than offset the other advantages, and sought to overcome the twist by providing barrel-shaped rolls, with larger diameter in the middle than at either end, the one being supposed to undo the effect of the other, Mannesman. Patent 361,954 B A the twist given by the converging lines of the rolls at the beginning of the operation being taken out by the diverging lines at the other end. But this only made matters worse. It may have taken out the twist, but "with the knife." The metal being first twisted one way and then twisted back, if a seam was started by the one, it was only increased and aggravated by the other, doubling, instead of removing, the defect. It was to remedy this situation that the patent in suit was designed. The device stands no doubt merely as an improvement upon Mannesmann, making use, as it does, of the same general principle and character of mechanism. But it is clearly distinguished, after all, by the different form and arrangement adopted. There are beveled rolls or disks in both between which the billet or blank being first compressed is forced against the point of a piercing mandrel after it has been thus opened up. But, reversing the Mannesmann, the rolls are unsymmetrically set, one above the other, with their axes out of line, and so made to overlap that the bevel of the one is opposite the flat or plane surface of the other, whereby, except at the center, unequal circumferences, with different speed of rotation, are presented to and encountered by the billet in its course. It is idle to argue that it involved no invention to rearrange the rolls in this way, accomplishing as it did what Mannesmann, an inventor of marked ability in the same line, had endeavored and failed to effect, or, that it was in fact no advance, although reducing the waste from over 4 to 13 per cent. And equally unavailing is it to suggest either that it was anticipated or that it amounted to no more than an adapted or double use, F Mannesman S Y Mannesmann Catent No.389,585, Fig.7. because sundry devices with overlapping disks or rolls, between which metal rods or tubes are somewhat similarly drawn or forced, are to be found in the general mechanical art. Such, for example, as the the Reese (1867), for straightening cylindrical metal bars; the Brooksbank (1874), for rolling and finishing the same; the Hoagland (1874), 68 for making cold rolled shafting; the Butler (1877), for rolling, straightening, and finishing bars and tubes; the Reese (1881), for burnishing and ductilizing bars, shafts, and tubes; the Dyson & Hall (British, 1870), for rolling and finishing the same; and the diffuse Robertson (British, 1878), for. drawing, straightening, shaping, and smoothing wires, rods, tubes, shafts, etc., and doing a little of everything in that connection. The Flagler (1889) and the Jackson & Carlson (1891), which are also in the record are merely developments of the Mannesmann, designed to take advantage of rather than eradicate the spiral twist, and do not need to be further noticed. As indicated by their recited purposes, the others mentioned belong to a class of machines in which beveled disks, rotating in the same direction, and forming a substantially parallel-sided pass, are similarly employed, to roll, straighten, finish, smooth, or polish the surface of cylindrical, bars, But not only do they fail to show the precise shafts, rods, and tubes. form or relation of the rolls or disks of the device under discussion, but there is nothing in the use to which the rolls are put that is in any wise similar to or suggestive of their purpose here; the whole end and aim of the one being to affect superficially the articles treated, while the other ruptures structurally the billet operated upon, opening up the center, and developing and shaping it into a tube without seam or twist, an entirely different and unrelated result, as well as product. The real controversy between the parties is over the charge of inThe fringement. This depends upon the construction to be given to the patent, and whether the defendants' device is within its terms. limitations, if any, imposed by the existing art, no doubt, are to be considered, and the original application, which was abandoned when the inventor, at the suggestion of the examiner, changed over from at process to a machine patent, and any concessions made in that connection, upon which the patent was obtained, are not, of course, to be lost sight of. These are familiar rules, not disputed by the complainThere are ants, but there is little occasion for their application here. two claims to the patent, both of which are relied on, as follows: "1. The combination of two parallel disks revolving in the same direction and overlapping each other, one of said disks being beveled at its outer edge which beveled surface is opposed to a portion of the plane surface of the other disk; the outer diameter of this plane surface and the inner diameter of the beveled surface opposed to it being substantially the same and the edges formed by both diameters intersecting the same transverse plane through the pass between the disks; the angles of the opposing surfaces converging to this plane which is at the narrowest part of the pass, with a conical mandrel lying in the axis of the pass at its exit side, substantially as set forth. "2. The combination of two parallel disks revolving in the same direction, beveled at the edges of their adjacent faces and overlapping each other so that the beveled portion of one disk lies opposite a flat portion of the other disk, the edges formed by the smaller diameters of the beveled portions of the disks intersecting the same transverse plane through the pass between the disks whereby the sides of the pass first converge to this plane and then diverge beyond it; with a piercing mandrel located between the diverging sides of the pass and exactly in axial line of the pass, substantially as hereinbefore set forth." The object of the invention, as already stated. is to make tubing without torsional wrest or strain. "This result," according to the speci |