support is so common in the arts and has taken on such innumerable forms that it cannot easily be perceived that any method not heretofore used remains. The presumption is therefore against patentability in any mere form of elastic suspension, unless under exceptional circumstances. We do not understand that the complainant holds other wise, as we think nothing patentable is claimed for the mere method of adjusting or attaching or locating the springs or for anything relating to them independently of the peculiar double hinge which the patent describes. Also, it caunot be denied that the respondent was within its right in using its peculiar motor, which normally locates its armature at its axis, and, as a necessary element to the operation of its motor, in using its armature-shaft as a pivot. All this is in the common field of mechanical construction. What would remain would be the question of holding the motor in position. This would in ordinary course be by support either at its center or at its radial poles, and, in either case, rigidly or elastically. In the normal work of construction the mechanical engineer must select, and in an art of so common a character as that of so suspending heavy working parts elastically as to minimize the shock he might rightfully select either. This is all which has been done by the respondent. Therefore if complainant's patent is so broad as to cover respondent's device it is too broad to be sustained.

The case undoubtedly shows difficulties in the way of adjusting and disposing of the weight of an electric motor so as to relieve the superstructure and the car from the effects of shock and to minimize the consequently increased cost of maintenance; but it does not show that electrical engineers had been endeavoring to overcome them, except incidentally, or that they considered that there was involved anything more than the usual problem of easing the shock common to all roadvehicles. The state of the art as proven by the complainant's expert covers the history of this matter. The prior efforts shown by him and explained by the complainant were looking especially toward finding a method of attaching the motor to the car-axle instead of to the carbody, and also to increasing the tractive power of the wheels. Moreover, we have not been referred to proofs that the complainant's device actually overcame in practice the difficulty described or minimized it to any considerable degree. The evidence in these respects falls far short of that class of proof sometimes accepted as overcoming a presumption that what was accomplished was within the scope of ordinary mechanical work. On the whole we must conclude that the complainant fails to maintain its suit.

Let a decree be entered as provided in rule 21 of this court, dismissing the bill, with costs.

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

GASKILL et al. v. MYERS.

Decided July 1, 1897.

81 O. G. 1111.

1. MYERS-STOVE FOR HEATING AND LIghting PurpOSES-REISSUE No. 11,393VALIDITY.

Reissue Letters Patent No. 11,383, granted November 7, 1893, to John F. Myers, for a stove for heating and lighting purposes, Held to be valid, although the claims of the original patent had been broadened by the omission of certain unpatentable elements and although a patent for substantially the same thing had been granted to another party who had merely substituted a base-ring of the Myers original patent and added a heat-deflecting ring on the top of Myers's device. 2. REISSUE-DEFLECTING CLAIM-OMITTING ELEMENTS.

A claim which made what was no part of the invention one of the elements was defective, which defect was properly cured by omitting the improper element from the reissue.

3. MYERS-LAMP-STOVE-DESIGN No. 22,911—VALIDITY.

Design Letters Patent No. 22,911, granted November 14, 1893, to John F. Myers, for a design for a lamp-stove, shows sufficient originality and invention to sustain its validity. (Gilbert, judge, dissenting.)

IN ERROR to the Circuit Court of the United States for the Northern District of California.

Before GILBERT, ROSS, and HAWLEY, Judges.

Mr. G. R. Lukens for the plaintiffs in error.

Mr. John L. Boone for the defendant in error.

Ross, J.:

This was an action at law to recover damages for an alleged infringement of two certain letters patent issued to the defendants in error by the United States-one, No. 11,383, which was a reissue, and the other a design patent, No. 22,911. The validity of both patents is challenged by the plaintiffs in error. In respect to a reissued patent the settled law is, as recently declared by the Supreme Court, in the case of Topliff v. Topliff, (C. D., 1892, 402; 57 O. G., 1257; 145 U. S., 156, 170; 12 Sup. Ct., 825, 831:)

That the power to reissue may be exercised when the patent is inoperative by reason of the fact that the specification as originally drawn was defective or insufficient, or the claims were narrower than the actual invention of the patentee, provided the error has arisen from inadvertence or mistake, and the patentee is guilty of no fraud or deception; but that such reissues are subject to the following qualifications: First. That it shall be for the same invention as the original patent, as such invention appears from the specification and claims of such original.

Second. That due diligence must be exercised in discovering the mistake in the original patent, and that, if it be sought for the purpose of enlarging the claim, the lapse of two years will ordinarily, though not always, be treated as evidence of an abandonment of the new matter to the public to the same extent that a failure by the inventor to apply for a patent within two years from the public use or sale of his invention is regarded by the statute as conclusive evidence of an abandonment of the patent to the public.

Third. That this Court will not review the decision of the Commissioner upon the question of inadvertence, accident, or mistake, unless the matter is manifest from the record, but that the question whether the application was made within a reasonable time is, in most if not in all such cases, a question of law for the Court. In the case cited the Court proceeded to say:

To hold that a patent can never be reissued for an enlarged claim would be not only to override the obvious intent of the statute, but would operate in many cases with great hardship upon the patentee. The specification and claims of a patent, particularly if the invention be at all complicated, constitute one of the most difficult legal instruments to draw with accuracy, and in view of the fact that valuable inventions are often placed in the hands of inexperienced persons to prepare such specifications and claims, it is no matter of surprise that the latter frequently fail to describe with requisite certainty the exact invention of the patentee, and err either in claiming that which the patentee had not in fact invented, or in omitting some element which was a valuable or essential part of his actual invention. Under such circumstances, it would be manifestly unjust to deny him the benefit of a reissue to secure to him his actual invention, provided it is evident that there has been a mistake and he has been guilty of no want of reasonable diligence in discovering it, and no third persons have in the meantime acquired the right to manufacture or sell what he had failed to claim. The object of the patent law is to secure to inventors a monopoly of what they have actually invented or discovered, and it ought not to be defeated by a too strict and technical adherence to the letter of the statute, or by the application of artificial rules of interpretation.

The statute upon the subject, and thus construed by the Supreme Court, is as follows:

Whenever any patent is inoperative or invalid, by reason of a defective or insufficient specification, or by reason of the patentee claiming as his own invention or discovery more than he had a right to claim as new, if the error has arisen by inad vertence, accident, or mistake, and without any fraudulent or deceptive intention, the Commissioner shall, on the surrender of such patent and the payment of the duty required by law, cause a new patent for the same invention, and in accordance with the corrected specification, to be issued to the patentee, or, in the case of his death or of an assignment of the whole or any undivided part of the original patent, then to his executors, administrators, or assigns, for the unexpired part of the term of the original patent. Such surrender shall take effect upon the issue of the amended patent. The Commissioner may, in his discretion, cause several patents to be issued for distinct and separate parts of the thing patented, upon demand of the applicant, and upon payment of the required fee for a reissue for each of such reissued Letters Patent. The specifications and claim in every such case shall be subject to revision and restriction in the same manner as original applications are. Every patent so reissued, together with the corrected specification, shall have the same effect and operation in law, on the trial of all actions for causes thereafter arising, as if the same had been originally filed in such corrected form; but no new matter shall be introduced into the specification, nor in case of a machine patent shall the model or drawings be amended, except each by the other; but when there is neither model nor drawing, amendments may be made upon proof satisfactory to the Commissioner that such new matter or amendment was a part of the original invention, and was omitted from the specification by inadvertence, accident, or mistake, as aforesaid. (R. S., sec. 4916.)

From the statute and from the decisions of the Supreme Court it is clear that it is essential to the validity of a reissued patent that it be for the same invention as the original patent, as such invention appears from the specification and claims of such original.

Turning now to the patent to the defendant in error, in lieu of which his Patent No. 11,383 was issued, we find the object of his invention therein described declared as follows:

The object of my invention is to provide a device whereby I am enabled to use an ordinary coal-oil lamp within a grate or fireplace, and by the employment of a peculiarly-constructed inclosing casing to prevent the flame of the lamp from being affected by the usual strong draft of the chimney-flue.

It also has for its object a means for providing a proper circulation of air about the lower part of the lamp and oil-chamber without subjecting it to the chimneydraft, a means for concentrating the heat and projecting it into the room, and a means for opening communication with the chimney in order to discharge the odors arising when the lamp is extinguished and prevent their escaping into the room. A valve or damper is so arranged that the top may also be used for cooking purposes. The specification followed, making reference to annexed drawings for illustration, describing a casing A of a segmental or parabolic form in horizontal section, the axis being in a vertical line, and a corrugated or other reflecting surface B fitted around the inner surface. The exterior form of the back the inventor declared

is adapted to fit into the fireplace after the basket and ash-pan have been removed; but the casing may be made in other forms without altering the character of my invention.

The bottom of the casing B' is described as having a large opening through the center, into which the oil-reservoir of the lamp C is fitted. The reservoir is of large size and has certain described handles D upon each side, by which it may be conveniently taken out or replaced when necessary. The burner, the inventor declared, may be of any wellknown or suitable construction and has a glass chimney E extending up into the upper portion of the apparatus. The bottom B is described as supported upon a base F, which has the rear portion approximating in shape to the rear of the curved body A. The base is described as being of considerable depth, so as to allow the lamp-reservoir to be suspended within it without touching the surface upon which the apparatus stands, and the inventor adds:

I have shown the base mounted upon small wheels or rollers G, which allow it to be easily drawn out or pushed back into place.

The specification proceeds:

Through the front and top of this base are made a number of holes H, and through the top, in which the lamp-reservoir is suspended, the holes are made, so that air may readily draw through the openings in the base and thence up through these holes around the exterior of the lamp, thus producing a circulation of air within the body of the stove and around the reservoir and lamp to keep the parts cool, and especially to prevent overheating the reservoir by reason of its confinement within the casing. The cap or upper portion J is inclosed, as shown, and has a horizontal closed top K, with a number of small holes K' in the front to allow the heat which rises into the upper portion of the casing from the lamp to pass out through these openings into the room.

This device is adapted to be fitted into the fireplace or opening for any grate by simply removing the basket and ash-pan therefrom, and it may be rolled into place upon the rollers G, so that any odors which may arise from the lamp when it is

extinguished will escape through the valve or register L, which is partially opened for the purpose. The heat will be thrown out by direct radiation, and by the action of the reflector behind the lamp, and the room will at the same time be lighted sufficiently for all ordinary purposes.

By the use of the casing closed behind and at the top the lamp is protected from the strong draft of the fireplace-chimney. The open or perforated front and bottom supply air to keep the lamp cool. The closed top with perforations in front and the open front with reflector behind concentrate the heat and throw it out into the room, and at the same time protect the lamp from drafts, which would break the chimney or prevent perfect combustion.

If it is desired to use the stove for cooking purposes, it is made available by the use of the damper or register L, which turns in a frame, M, so as to close the openings in said frame or open them like the ordinary rotary register. The frame M has upwardly-projecting points N, which serve to support any vessel containing material which it is desired to heat or cook at this point.

When the device is to be used for cooking in this manner, it is simply drawn out from the fireplace sufficiently to expose the top and the register, which is opened for the purpose of cooking, as before described. When used for heating purposes, it is preferably allowed to stand within the fireplace, and by reason of the peculiar construction a great amount of heat is developed from it.

Below the register is suspended a concave or cup-shaped guard O, which, diverging above the lamp-chimney, will prevent any liquids spilled or boiled over the top of the cooking vessel from falling upon and breaking the chimney. By means of the register in the top I am also enabled to regulate the amount of heat without turning the lamp-wick down or extinguishing it entirely, for by opening the register much of the heat will be allowed to escape up the chimney. If the lamp is turned low, any odors arising from imperfect combustion will escape through the register and into the chimney.

Having thus described his invention, the inventor added what he claimed as new and desired to secure by Letters Patent, as follows:

1. A stove consisting of the body having a base and wheels or rollers upon which said body is supported, openings around the front of the base for the admission of air, a floor forming the top of said base with a central opening, a lamp reservoir having handles and fitting said opening, perforations made in the floor surrounding the lamp to allow circulation of air through the base and floor, a top with openings and register, and a curved back adapted to fit the fireplace and extending downward below the level of the top of the lamp-chimney, with perforations for the escape of heat, substantially as herein described.

2. A stove consisting of the segmental body-section with a correspondingly-shaped reflector fitted around its inner surface and adapted to fit the fireplace, a base and floor having openings for the circulation of air, a central opening, a removable lamp, the reservoir of which is adapted to fit said opening and is provided with handles, an upper closed portion or cap into which the chimney of the lamp extends, a registerframe having openings and upwardly-projecting points to support a utensil for cooking purposes, and a valve by which the openings in said register may be exposed or closed, substantially as herein described.

3. A fireplace-stove consisting of a lamp, a casing closed at the top, back, and sides, within which the lamp is suspended, a base perforated to allow air to circulate, an open front and a reflector at the rear of the lamp, a closed top into which the top of the chimney extends, and openings in front for the escape of heat, substantially as herein described.

4. A fireplace-stove consisting of a lamp, a casing closed at the top, back, and sides, within which the lamp is suspended, a closed base perforated to allow air to circulate, an open front, an inclosure above into which the top of the lamp-chimney extends,