270 F. 338 | E.D. Mo. | 1921
This is an action for an alleged infringement of the Girtanner patent, No. 986,455, for a furnace arch, which patent is owned by plaintiff, as assignee of Girtanner.
“In a furnace arch, the combination with a pair of I-beams extending across the furnace of brackets supported by said I-beams; each of said brackets comprising a pair of separate end pieces, one extending at the front, the other at the rear, of said I-tyeams, and a separate center piece extending between said I-beams; flanges on the lower edges of both said end pieces and said center piece, and tiles provided with grooves to receive said flanges.”
The defenses are: (a) That there is no infringement; (b) that there is no patentable novelty in the alleged invention, the prior art as developed by numerous other patents being regarded; and (c) es-toppel. It will be borne in mind that claim 4 is not involved here, and that this discussion does not affect this claim in any wise. It is not in issue, I assume, because not deemed by plaintiff to be infringed by defendant’s construction of its furnace arches.
The salient features of plaintiff’s patent, so far as the issues here in dispute are concerned, are illustrated by the below drawings or cuts:
It is conceded by plaintiff that the I-beams, 17, which span the furnace arch transversely, are old in the art, as are likewise the refractory tiles, 23. The construction of the so-called brackets, 32 and
To beat down the prima facie inference of patentable novelty arising from the issuance of a patent to plaintiff, defendant offered numerous prior patents. I have examined and considered all of these. Some of them relate to building construction and the manner of affixing fireproofing to ceilings and floors. Whether the latter constructions
Among others offered to illustrate this prior art was a former patent to Girtanner, No. 910,809, owned by plaintiff as assignee, but not in suit in this case. The patent last above illustrated a furnace arch having a single bracket, attached to a single transverse I-beam, as shown by the cut which follows:
It is apparent, I conclude, that in the last analysis the patent in this action covers a construction similar in all material respects to that last above illustrated. There are in the patent in the instant case two transverse I-beams instead of one. The one bracket is wholly similar in function (except as to the “removable tip,” which is not here involved). Additional length of the arch is obtained by the mere mechanical expedient of using two I-beams instead of one, thus, in effect, spacing further apart the two ends of the brackets, which are common to both patents. This expedient also, in effect, converts the transverse I-beams into a single box beam, such as was used in the prior patent of McKenzie, No. 766,966, which was also offered by the defendant as showing the prior art and urged as anticipatory. The first Girtanner patent (last above illustrated), no less than the instant one, allows the creation of the hipped arch by the permissible expedient of changing the angle of attachment of the forward bracket to the I-beam. This can be accomplished in the first patent by a change in this angle by forging, and in the second by either forging or the use of shims.
Girtanner’s problem in the instant patent, as compared to that in his No. 910,809, above illustrated, was only that of converting his one-piece hanger or double bracket into a multiple piece tile hanger or a multiple bracket. A mere burning in two of the one-piece bracket or an accidental breaking thereof would instantly suggest this change, if it were not otherwise obvious.
In the art of fireproofing floors and ceilings, urged by defendant as entirely analogous, the use of multiple tile-hanging members resting upon or supported by I-beams is common. In the latter art the ordinary and constantly recurring problem of making a long arch has been met by the use of as many multiples of the single tile hangers as the situation requires.
On the oral hearing I entertained a casual doubt whether, the differing problems to be met regarded, any compelling analogy exists between the art of furnace arches and that of suspending fire proofing from a ceiling. I think there exists such analogy. The chief difference lies, not in the art of suspension, but in the nature of the material suspended. The problem in both arts is to fend the fire and heat away from the suspending material and construction, so as to minimize or avoid destruction of the latter. The difference then lies only in the nature or the degree of refractoriness of the tiles or fire brick and the fireproofing. The latter usually are wholly different, but the problem to be surmounted is similar. Lately I took occasion to say that no invention lies in merely changing the use of a wagon jack from lifting ox wagons to that .of lifting automobiles. St. Louis Electrical Works v. Fore, etc., Co. (D. C.) 267 Fed. 440.
I am constrained to conclude that plaintiff’s patent here in suit, upon the claims urged,' is void for lack of patentable novelty. And since upon this view no occasion exists to consider whether plaintiff is es-topped by reason of its alleged participation in constructing the mechanical stoker, I lay the point aside.
It follows that the finding should be for defendant and against plaintiff, and that plaintiff’s bill should be dismissed, and it is so ordered.