Opinion
The plaintiff claims by this method and process to have closed the side doors, dispensed with the center charging hoppers, and introduced an opening near the roof along inside the wall, through which he introduces smelting ore by dropping the ore alongside of the wall in the furnace, piling up and making an embankment sloping from the top of the furnace against the walls and extending inward into the furnace in a crescent shape, thereby protecting the side walls from the intense heat and from scorification from the matte, thus using smelting ore for fettling material, exposing a large surface to the smelting operation, and the ore being fed slowly will melt and flow down the embankment to the bottom of the furnace; the difference in specific gravity causing the slag to be at the surface and matte in the bottom of the bath. As fast as the ore is smelted, new ore is fed into the opening through the roof, and brought automatically within the range of smelting operations-- the contention being that this produces a new method of smelting, as well as a method of protecting the side walls of the furnace from scorification, and that it makes the smelting operation continuous; that it exposes a maximum surface of ore, making the smelting more efficient by reason of a constant uniform temperature, obviating laborious operations of fettling by hand, saving cost of fettling material and labor, and greatly increasing the tonnage of ore smelted within a given time.
The defendant contends that the contention that the claim of patent No. 1,149,495 is but a structure, and that the lining of the claim is the refractory metal of the specification, and may be in whole or in part refractory ore, containing metal value which would be smelted, and the assertion that the 'duplex nature' of the invention is supported by an 'ambiguity in the specifications,' is without foundation, and that the use of the side hoppers and smelting in the smelting furnaces came with the advent of oil or powdered coal for fuel and 'flotation concentrates,' which was in 1913, this fuel increasing the available heat for smelting from 2,500 degrees F. to about 3,000 degrees F., and nearly doubling the output. This increased the need for fettling material, and the plaintiff repeated only what was done at Butte, Bingham, and Anaconda in 1905-06; that the introduction of 'flotation concentrates,' which are finely comminuted ores which go into the furnace at 900 degrees F. and flow like water on mercury, and on introduction spread on the matte throughout the furnace area, and that the plaintiff had no conception of such method of introducing material into the furnace; and that claims 2 and 3 of patent No. 1,302,307 deal only with fettling material, and that the claim now made may not be read into the patent, and finally the apparatus contended for in the first patent and process in the second patent express the same inventive idea. John H. Miller, Chas. S. Wheeler, Jr., and A. W. Boyken, all of San Francisco, Cal., for plaintiff.
The ore is first ground to a condition of minute fineness and mixed with water in a tank; a very small quantity of oil is added, being a fraction of 1 per cent.; then the mixture is subjected to violent agitation whereby myriads of air bubbles are generated; the oil attaches itself to these air bubbles in the shape of a thin film, and the metalliferous material (sulphide) adheres to this oily film, sticking thereto like a fly in molasses, while the gangue matter settles to the botton of the tank by gravity; thereupon the air bubbles, coated with the sulphides, rise to and float on the surface by reason of their buoyancy, in the form of a thick froth, and are then scraped or drained off. During the operation the air bubbles burst and the sulphides are left in a state of minute fineness. This is merely a new method of concentration, and by reason of the fact that the sulphide-coated air bubbles float on the surface of the liquid they are called 'flotation concentrates.' Mineral Separation v. Hyde, 242 U.S. 621, 37 Sup.Ct. 82, 61 L.Ed. 286.
John A. Shackleford, of Tacoma, Wash., Frederick P. Fish, of Boston, Mass., Albert M. Austin, of New York City, and J. L. Stackpole, of Boston, Mass., for defendant.
NETERER, District Judge (after stating the facts as above).
The purpose of plaintiff's invention, patent No. 1,149,495, is to feed material into the furnace
'primarily to make a lining for the furnace, though primarily it gives up any values it may contain to the bath. ' 'A moving temporary lining of the furnace chambers. ' 'A dike shutting the molten interior of the metallic bath away from contact with the walls of the furnace chambers.'
Patent 1,302,307:
'To protect the walls of a reverberatory furnace by feeding ores into the furnace through feeding ports leading into the upper part, where it may have unrestricted downward movement to the floor, causing it to form an embankment resting along the walls between the bath and the walls.'
In plain words, the Siemens furnace has inclined surface walls closed at the top by a brick arch having openings through which ore is introduced by gravitation onto the inclined surface, where it is exposed to intense heat, the molten metal flowing to the bottom, leaving the inclined surface exposed to the heat, the walls being protected from the corrosive action of the metal bath, 'particularly at the surface line of the matte, where the brick is repeatedly destroyed;' and the Carson furnace has walls extending vertically from the floor, closed at the top by a brick arch having openings near the walls through which ore is discharged unrestricted in a vertical downward movement to the floor near the walls, and forming sloping embankments against the walls and protecting them from the heat and corrosive action of the metal bath. While the Siemens furnace in the patent No. 2,413 is a small affair compared to the furnace of the present day, and was a blast furnace in reducing iron ore, yet the specifications provided that it may ' * * * be used to advantage for the fusion and reduction of copper * * * ore. * * * ' There is this difference in construction: The Carson wall is vertical, and the Siemens wall has a 60 per cent. incline. In each, however, the ore may be deposited in a similar fashion. The ore embankment between the matte and the wall in the Carson patent is thicker than in the Siemens patent. The angle of repose of the ore in the furnace in each patent must be the same. The angle of repose is the slope at which the ore or material deposited will attain without any sliding effect.
While the Siemens furnace is inefficient compared with modern smelters, in principle, however, Siemens taught the art of dropping ore on a slope exposing a large surface to intense heat, the exposed charge, smelting, running down in rivulets towards the center of the furnace, and exposing fresh surface to the heat; this being repeated, and new charges being added as necessary by the use of slides through which the ore is introduced, resting on the floor of the hearth and against the walls, and protecting the walls from the heat of the furnace and erosive action of the bath. This is also the Carson idea:
'The materials pass by gravity into the furnace and form a border or levee resting on the hearth and against the walls of the furnace, and act as an inside lining to protect the same from scorification and erosion by the bath. * * * '
Again:
'Ideal smelting charges can be fed, and the portion next to the furnace wall never reach the point of fusion, while that portion in the interior of the furnace will be in a high state of fusion. * * * And in some cases it will be unnecessary to build the furnace walls with brick, as the refractory material can rest against plates held in place by steel beams, which may also support the roof.'
Figure 1:
'15, are gates or dampers to control the flow of the refractory material through the orifice, 6.'
In fact, there is no difference, except 'in some cases' the substitution of plates 'held in place by steel beams' for brick walls.
The objection of the plaintiff to the impracticability of the Siemens patent appears overcome by the construction of the furnace at the Garfield smelter, where the angle formed by the floor and vertical wall was filled in with brick to make an inclined surface of 60 degrees, as in the Siemens patent, and upon ore being introduced in the openings in the roof, the angle of repose of the ore was found to be from 30 to 50 degrees, depending on the character of ore introduced, and this incline did not operate against the protection of the wall from heat, and sustains Claim 4, Siemens British patent 2,413, and the furnace was successfully operated in a commercial way for more than one year, and was, it is said, in operation at the time of this trial. This would make it appear that the substance of the Siemens invention may not be held inefficient because of alleged imperfections in minor matters affecting the substance of the invention claimed (Pickering v. McCullough, 104 U.S. 310, 26 L.Ed. 749), or application to new uses in the art (Lovell Mfg. Co. v. Cary, 147 U.S. 623, 13 Sup.Ct. 472, 37 L.Ed. 307). The angle of repose of the flotation concentrates in defendant's furnace is not more than 30 degrees.
It appears that the Siemens British patents anticipated and render invalid the claim of the Carson patent, No. 1,149,495. In thus concluding, I am not unmindful of Siemens' statement in his application for American patent No. 113,584, 1871. It was to remedy what he considered inefficient and ineffectual in practice in his British patent, No. 2,413, that he took out two subsequent British patents, and in his specifications for the American patent, making reference thereto, he says:
'Notwithstanding these improvements, it was difficult to realize all the conditions necessary to insure satisfactory results. The reduction of iron ore in close retorts or muffles is essentially a slow and expensive process and the pulverulent iron produced thereby, upon being introduced into the melting furnace, floats upon the metallic bath for a considerable length of time without being incorporated with it. Being exposed in the meantime to the oxidizing and sulphurizing action of the flame, the metallic oxide thus produced corrodes the banks of the metal bath, and, being a nonconductor of heat, causes the fluid metal below to set.'
Nor to the conclusion of the Board of Examiners in the Patent Office, in its decision on the Carson appeal in patent application, No. 1,302,307, saying that, in view of the United States patent admissions:
'We do not feel warranted in giving full credit to Siemens' statement in his fourth claim, that the walls are protected from the heat, and corrosive action of the slag and cinders of the metallic bath by the interposition of the ore itself.'
This statement has no application to the 1866 patent. He was not speaking about raw ore. He did not say that the walls were not protected from the heat and corrosive effect of the slag and cinders of the metallic bath by the ore itself, as claimed in his patent, nor did he say anything to detract from his statement in his fourth claim in Patent No. 2,413. He had reference to a product of closed retorts or mufflers, which are not present in patent No. 2,413, but are separate apparatuses introduced by his patents of 1867 and 1868, and it is the oxidizing of this product, pulverulent iron, when subjected to the action of steel smelting furnaces, which corrodes the banks of the metal bath in the steel furnace, but this is a separate apparatus. And again referring to patent No. 2,413, in his 1871 patent, he says:
'It was found, however, in practice it was difficult to realize all of the conditions necessary to insure a satisfactory result.'
It was not found impossible, but difficult, and from the language employed in his 1871 patent it would appear that there was no difficulty with the raw ore, as set forth in the fourth claim, supra, and that the first or preparatory process relating to the treatment of raw ore may be carried out in a furnace resembling in form a copper smelter, and is to have the charging doors 'at the sides or in the roof. ' (All italics mine.)
At bar and in the brief plaintiff asserts patentable novelty to 'a new process of smelting,' which consists of 'side charging' all smelting ores, and nothing but the smelting ores, and obviating the use of fettling material whatsoever.
Plaintiff may not by interpretation change his patent, and claim what he has heretofore abandoned, or what has been denied by the Patent Office. Leggett v. Avery, 101 U.S. 256, 25 L.Ed. 865; Hestonville Ry. Co. v. McDuffee, 185 F. 798, 109 C.C.A. 606; Hubbell v. U.S., 179 U.S. 77, 21 Sup.Ct. 24, 45 L.Ed. 95; Sutter v. Robinson, 119 U.S. 541, 7 Sup.Ct. 376, 30 L.Ed. 492; Roemer v. Peddie, 132 U.S. 313, 10 Sup.Ct. 98, 33 L.Ed. 382; Morgan Envelope Co. v. Albany Paper Co., 152 U.S. 425, 14 Sup.Ct. 627, 38 L.Ed. 500; Weber Electric Co. v. Freeman, 256 U.S. 668, 41 Sup.Ct. 600, 65 L.Ed. 1162. The claim now contended for was either abandoned or waived by patentee, or was rejected by the Patent Office. File wrappers, pages 2 to 12, 37, 38, 47, 75, 77, 82, 120, 121, 122, 142, 155, 156, 158, 161, 162, and 167.
In the construction of a patent, the understanding of the patentee at the time of its issuance may be considered as illuminative of the range within which it was understood at the time the patent issued. Victor Talking Mach. Co. v. American Graphophone Co., 151 F. 601, 81 C.C.A. 145; Goodyear Dental Vulcanite Co. v. Davis, 102 U.S. 222, 26 L.Ed. 149; Reece v. Globe Button Mach. Co., 61 F. 958, 10 C.C.A. 194; United Shoe Mach. Co. v. Greenman, 146 F. 759, 77 C.C.A. 22; St. Louis Street Mach. Co. v. American Street Mach. Co., 156 F. 574, 84 C.C.A. 340; St. Louis Trust Co. v. Studebaker Corp., 211 F. 980, 128 C.C.A. 478. For a fair understanding the claims and specifications must be read together. 1900 Washer Co. et al. v. Cramer et al., 169 F. 629, 95 C.C.A. 157; O. H. Jewell Filter Co. v. Jackson, 140 F. 340, 72 C.C.A. 304; Henry v. City of Los Angeles, 255 F. 769, 167 C.C.A. 113; Brooks v. Fiske, 15 How. 212, 14 L.Ed. 665; Mossberg v. Nutter, 135 F. 95, 68 C.C.A. 257. The claim of the plaintiff's first patent was anticipated by the prior art, and the claims of the second patent must rest upon the first patent, as 'the same inventive idea embodies the claims of both patents. ' Mosler Safe & Lock Co. v. Mosler, 127 U.S. 354, 8 Sup.Ct. 1148, 32 L.Ed. 182.
There is no proof that there is any difference in the inventive concept underlying the apparatus and process in the two Carson patents and in the general principles specified and claimed in the Siemens patents. The law is satisfied by a description which those skilled in the art can understand. Diamond Rubber Co. v. Cons. Tire Co., 220 U.S. 428, 436, 31 Sup.Ct. 444, 55 L.Ed. 527.
The issue here is clearly a question of fact, the burden is on the plaintiff, and infringement must be established by clear and convincing testimony. Fried, Krupp Aktien-Gesellschaft, v. Midvale Steel Co., 191 F. 588, 112 C.C.A. 194. 'The absence of actual fact proof is not met by the presence of expert speculations, no matter how voluminous,' and 'claims should cover what the patentee has invented and not what he imagines he has invented. ' Lovell v. Seybold Wash. Co., 169 F. 288 at page 290, 94 C.C.A. 578 at page 580. From what has been said it is unnecessary to consider the effect of the disclaimers, or the Bender article, or further consider the divisional patent. In practical application and operation, in so far as it has relation to the tendered issue, the defendant has adopted the principle of the Siemens furnace and process of smelting.
Decree for defendant.
Cases cited by plaintiff and examined by the court; Ajax Metal Co. v. Brady (C.C.) 155 F. 415; Andrews v. Cross (C.C.) 8 Fed. 269; Barbed Wire Patent, 143 U.S. 275, 12 Sup.Ct. 443, 36 L.Ed. 154; Brown v. Zaubitz (C.C.) 105 F. 242; Bowers v. Pacific (C.C.) 81 F. 571; Chapman v. Wintroath, 252 U.S. 137, 40 Sup.Ct. 234, 64 L.Ed. 491; Carnegie v. Cambria, 185 U.S. 403, 22 Sup.Ct. 698, 46 L.Ed. 968; Cluett v. Claflin (C.C.) 30 F. 922; Consolidated Co. v. Hassam, 227 F. 441, 142 C.C.A. 132; Diamond Rubber Co. v. Tire Co., 220 U.S. 435, 31 Sup.Ct. 444, 55 L.Ed. 527; Deering v. Winona, 155 U.S. 300, 15 Sup.Ct. 118, 39 L.Ed. 153; Dodge v. Post (C.C.) 76 F. 809; Dunkley v. Central (D.C.) 277 F. 1005; Diamond Co. v. Carr, 217 F. 400, 133 C.C.A. 310; Electrical Co. v. Julien (C.C.) 38 F. 134; Eames v. Andrews, 122 U.S. 40, 7 Sup.Ct. 1073, 30 L.Ed. 1064; Electric Co. v. Winton (C.C.) 104 F. 815; Hunt v. Cassidy, 53 F. 257, 3 C.C.A. 525; Heinz v. Cohn, 207 F. 547, 125 C.C.A. 197; Klein v. Russell, 19 Wall. 466, 22 L.Ed. 116; Los Alamitos v. Carroll, 173 F. 280, 97 C.C.A. 446; Lalance v. Habermann (C.C.) 53 F. 378; Manhattan v. Helios (C.C.) 135 F. 785-802; National Co. v. Brake Beam, 106 F. 693, 45 C.C.A. 544; O'Rourke v. McMullin, 160 F. 933, 88 C.C.A. 115; Petroleum v. Reward, 260 F. 177, 171 C.C.A. 213; Parker v. Stebler, 177 F. 212, 101 C.C.A. 380; Rubber Co. v. Goodyear, 9 Wall. 788, 19 L.Ed. 566; Ross v. Montana (C.C.) 45 F. 425; Sessions v. Romadka, 145 U.S. 29, 12 Sup.Ct. 799, 36 L.Ed. 609; Schwartzwalder v. N.Y., 66 F. 152, 13 C.C.A. 380; Simplex v. Pressed Steel Co., 189 F. 70, 110 C.C.A. 634; Stebler v. Riverside, 205 F. 738, 124 C.C.A. 29; Symington v. National, 250 U.S. 386, 39 Sup.Ct. 542, 63 L.Ed. 1045; Tuck v. Bramhill, 24 Fed.Cas. 259; Taylor v. Archer, 23 Fed.Cas. 731; Turrill v. Railroad Co., 1 Wall. 491, 17 L.Ed. 668; Topliff v. Topliff, 145 U.S. 156, 12 Sup.Ct. 825, 36 L.Ed. 658; Walker on Patents, Sec. 198; Winans v. Denmead, 15 How. 330, 14 L.Ed. 717; Brush v. Electric Co. (C.C.) 52 F. 974; Bowers v. S. F. Bridge Co. (C.C.) 91 F. 410; Hogg v. Emerson, 6 How. 485, 12 L.Ed. 505; Eibel v. Ontario, 261 U.S. 45, 43 Sup.Ct. 322, 67 L.Ed. 523.
Cases cited by plaintiff and not examined by the court: Ames v. Howard, Fed. Cas. No. 326, 1 Sumn. 482; Ex parte Reid, 15 O.G. 882; Ex parte McDougall, 18 O.G. 130.
Cases cited by defendant and examined by the court: Aron v. Manhattan Ry. Co., 132 U.S. 84, 90, 10 Sup.Ct. 24, 33 L.Ed. 272; Atlantic Works v. Brady, 107 U.S. 192, 2 Sup.Ct. 225, 27 L.Ed. 438; Blake v. San Francisco, 113 U.S. 679, 5 Sup.Ct. 692, 28 L.Ed. 1070; Brown v. Piper, 91 U.S. 37, 23 L.Ed. 200; Carnegie Steel Co. v. Cambria, 185 U.S. 403, 22 Sup.Ct. 698, 46 L.Ed. 968; Cartridge Co. v. Cartridge Co., 112 U.S. 624, 5 Sup.Ct. 475, 28 L.Ed. 828; Clark Thread Co. v. Willimantic Linen Co., 140 U.S. 481, 11 Sup.Ct. 846, 35 L.Ed. 521; Deering v. Winona Harvester Works, 155 U.S. 286, 295, 15 Sup.Ct. 118, 39 L.Ed. 153; Diamond Rubber Co. v. Cons. Tire Co., 220 U.S. 428, 31 Sup.Ct. 444, 55 L.Ed. 527; Dunbar v. Eastern Elevating Co., 81 F. 201, 26 C.C.A. 330; Dunbar v. Meyers, 94 U.S. 187, 24 L.Ed. 34; Fisher v. Automobile Supply Co. (D.C.) 201 F. 543; Grinnell Washing Machine Co. v. E.E. Johnson Co., 247 U.S. 426, 38 Sup.Ct. 547, 62 L.Ed. 1196; Hailes v. Albany Stove Co., 123 U.S. 582, 8 Sup.Ct. 262, 31 L.Ed. 284; Heald v. Rice, 144 U.S. 737, 26 L.Ed. 910; Henry v. City of Los Angeles, 255 F. 769, 780, 167 C.C.A. 113; Hestonville Ry. Co. v. McDuffee, 185 F. 798, 109 C.C.A. 606; Holmes Electric Protective Co. v. Metropolitan Burglar Alarm Co. (C.C.) 33 F. 254; Knox v. Quicksilver Mining Co. (C.C.) 4 Fed. 809; Laas v. Scott (C.C.) 161 F. 122; Leggett v. Avery, 101 U.S. 256, 25 L.Ed. 865; Lovell v. Seybold Machine Co., 169 F. 288, 290, 94 C.C.A. 578; Lovell Mfg. Co. v. Cary, 147 U.S. 623, 13 Sup.Ct. 472, 37 L.Ed. 307; Lovell McConnell Mfg. Co. v. Oriental Rubber & Supply Co., 231 F. 719, 146 C.C.A. 3; McCreary v. Massachusetts Fan Co., 195 F. 498, 115 C.C.A. 408; Mast, Foos & Co. v. Stover Mfg. Co., 177 U.S. 485, 20 Sup.Ct. 708, 44 L.Ed. 856; Miller v. Eagle Mfg. Co., 151 U.S. 186, 14 Sup.Ct. 310, 38 L.Ed. 121; Minerals Separation, Ltd., v. Butte Co., 250 U.S. 336, 39 Sup.Ct. 496, 63 L.Ed. 1019; Mineral Separation, Ltd., v. Hyde, 242 U.S. 261, 37 Sup.Ct. 82, 61 L.Ed. 286; Morgan Envelope Co. v. Albany Paper Co., 152 U.S. 425, 429, 14 Sup.Ct. 627, 38 L.Ed. 500; Mosler Safe and Lock Co. v. Mosler, 127 U.S. 354, 8 Sup.Ct. 1148, 32 L.Ed. 182; National Malleable Castings Co. v. Buckeye, 171 F. 847, 96 C.C.A. 515; Palmer Pneumatic Tire Co. v. Lozier, 90 F. 732, 33 C.C.A. 255; Pennsylvania Railroad Co. v. Locomotive Truck Co., 110 U.S. 490, 4 Sup.Ct. 220, 28 L.Ed. 222; Railway Co. v. Sayles, 97 U.S. 554, 24 L.Ed. 1053; Roemer v. Peddie, 132 U.S. 313, 10 Sup.Ct. 98, 33 L.Ed. 382; Strause Gas Iron Co. v. Wm. M. Crane Co., 235 F. 126, 148 C.C.A. 620; Sutter v. Robinson, 119 U.S. 530, 541, 7 Sup.Ct. 376, 30 L.Ed. 492; Thatcher Heating Co. v. Burtis, 121 U.S. 286, 7 Sup.Ct. 1034, 30 L.Ed. 942; United States Hog-Hoisting Machine Co. v. North Packing & Provision Co., 158 F. 818, 819, 86 C.C.A. 78; Vandenburgh v. Truscon, 261 U.S. 6, 43 Sup.Ct. 331, 67 L.Ed. 507 (1923); Victor Talking Machine Co. v. Thos. A. Edison, Inc., 229 F. 999, 144 C.C.A. 281; Weber Electric Co. v. Freeman, 256 U.S. 668, 41 Sup.Ct. 600, 65 L.Ed. 1162; Wellman v. Midland Steel Co., 117 F. 826, 55 C.C.A. 47; Westinghouse v. Boyden Power Brake Co., 170 U.S. 537, 18 Sup.Ct. 707, 42 L.Ed. 1136; Winston v. Croton Falls Construction Co., 194 F. 123, 114 C.C.A. 201; Application of Taylor, 52 App.D.C. 249, 285 F. 983; Automatic Weighing Machine Co. v. Pneumatic Scale Corp., 166 F. 288, 292, 92 C.C.A. 206; Baldwin v. Kresl, 76 F. 823, 22 C.C.A. 593; Christie v. Seybold, 55 F. 69, 76, 5 C.C.A. 33; Concrete Appliances Co. v. Meinken (C.C.A.) 262 F. 958; Eck v. Kutz
Page 782.
(C.C.) 132 F. 758, 763; Gold v. Gold, 187 F. 273, 109 C.C.A. 615; Goodyear Dental Vulcanite Co. v. Davis, 102 U.S. 222, 26 L.Ed. 149; Haughey v. Lee, 151 U.S. 282, 14 Sup.Ct. 331, 38 L.Ed. 162; Henry v. City of Los Angeles, 255 F. 769, 167 C.C.A. 113; Higgin v. Watson (C.C.A.) 263 F. 378; Hubbell v. Fitzgerald (D.C.) 283 F. 790; Hunnicutt-Charles Co. v. A. B. Gaston Co., 218 F. 176, 177, 134 C.C.A. 56; O. H. Jewell Filter Co. v. Jackson, 140 F. 340, 72 C.C.A. 304; Jones v. Sykes Metal Lath Co., 254 F. 91, 94, 95, 165 C.C.A. 501; Kohn v. Eimer (C.C.A.) 265 F. 900; Morse Chain Co. v. Link-Belt Co., 164 F. 331, 333, 90 C.C.A. 650; Mossberg v. Nutter, 135 F. 95, 99, 68 C.C.A. 257; Otis Elevator Co. v. Portland, 127 F. 557, 62 C.C.A. 339; Palmer v. Lozier, 90 F. 732, 33 C.C.A. 255; Paramount Hosiery Co. v. Moorhead Knitting Co. (D.C.) 251 F. 897; Reece v. Globe Button Hole Mach. Co., 61 F. 958, 10 C.C.A. 194; St. Louis Street Mach. Co. v. American Street Mach. Co., 156 F. 574, 84 C.C.A. 340; St. Louis Trust Co. v. Studebaker Corp., 211 F. 980, 128 C.C.A. 478; Thomson-Houston v. Ohio Brass Co., 80 F. 712, 26 C.C.A. 107; Thomson-Houston Elec. Co. v. Hoosick Ry. Co., 82 F. 461, 27 C.C.A. 419; Thomson-Houston Elec. Co. v. Jeffrey Mfg. Co., 101 F. 121, 41 C.C.A. 247; Twentieth Century Machinery Co. v. Loew Mfg. Co., 243 F. 573, 156 C.C.A. 153; United Shoe Mach. Co. v. Greenman, 146 F. 759, 77 C.C.A. 22; Victor Talking Mach. Co. v. American Graphophone Co., 151 F. 601, 81 C.C.A. 145; Washer Co. v. Cramer, 169 F. 629, 95 C.C.A. 157; Willard v. Union Tool Co., 253 F. 48, 51, 65 C.C.A. 646; Wood-Paper Patent Case, 23 Wall. 566, 23 L.Ed. 31; Eibel v. Ontario Paper Co., 261 U.S. 45, 43 Sup.Ct. 322, 67 L.Ed. 523; Evans v. Associated Automatic Sprinkler Co., 241 F. 252, 154 C.C.A. 172; Hubbell v. U.S., 179 U.S. 87, 21 Sup.Ct. 28, 45 L.Ed. 100; Pickering v. McCullough, 104 U.S. 310, 26 L.Ed. 749; Brooks v. Fiske, 15 How., 212, 14 L.Ed. 665; Miller v. Eagle, 151 U.S. 186, 14 Sup.Ct. 310, 38 L.Ed. 121.
Cases cited by defendant and not examined by the court: Ex parte Ehredriech, 1904 Com.Dec. 75; Gallagher v. Hien, 115 O.G. 1330; Gilbert & Barker Mfg. Co. v. Walworth Mfg. Co., Fed. Cas. No. 5,418, 2 Ban. & A. 271; Haskell v. Miner, 1904 Com.Dec. 131; Marsh v. Dodge & Stevenson Co., Fed. Cas. No. 9,115, 6 Fish.Pat.Cas. 562; Needham v. Washburn, Fed. Cas. No. 10,082, 4 Cliff. 254; Norden v. Spaulding, 114 O.G. 1828; Paul v. Johnson, 109 O.G. 807; Phelps v. Hardy, 77 O.G. 631; Roe v. Hanson, 99 O.G. 2550; Scott v. Cruse, 154 O.G. 252; Sherwood v. Drewsen, 130 O.G. 657; Smith v. Brooks, 112 O.G. 953; Ex parte Webster, 1902 Com.Dec. 456; Wyman v. Donnelly, 104 O.G. 310; Gibbons v. Peller, 124 O.G. 624; Gilman v. Hinson, 1906 C.D. 634; Kitchen v. Smith, 39 App.D.C. 500; McNeal v. Macey, 106 O.G. 2287; Paul v. Johnson, 109 O.G. 807.