Excelsior Steel Furnace Co. v. Williamson Heater Co.

286 F. 131 | 6th Cir. | 1923

PER CURIAM.

In our opinion the decree of the district court is clearly right. It is not denied that the art prior to Scherer showed, not only every element of the claim in suit, but all the elements except the last (the notches) in combination. It is not of substantial importance that the Smith prior patent disclosure and the Wheeling prior use of the notch feature were applied to round pipe, rather than, as by Scherer, to rectangular pipe; nor that, in one form of the Wheeling structure, in bending the tongues through the notches, the room for manipulation was restricted. The uses were in the same art, and in our opinion the application of the existing notch feature to rectangular pipe involved only mechanical skill, even if of a high order — a conclusion not substantially weakened by the lapse of time between, the Smith and Scherer disclosures. Scherer was thus not the first to dispense with soldering in the general art to which his patent belongs.

The question of aggregation aside, we think the case falls squarely within the rule that the selecting and putting together, even by the exercise of a high degree of mechanical skill, of the most desirable parts of different devices in the same art, making a new structure, though better than any which preceded it, but in which each part operates in substantially the same way as in the old and effects substantially the same result, is not patentable invention. Railroad Supply Co. v. Elyria Iron Co., 244 U. S. 285, 37 Sup. Ct. 502, 61 L. Ed. 1136.

The judgment of the District Court is affirmed.