115 F. 150 | 8th Cir. | 1902
This is an appeal from an order granting an injunction pendente lite in a patent case. The infringing device, the use of which was restrained, is an ore-roasting furnace, manufactured in full accordance with letters patent No. 523,013, issued to Alfred Ropp in January, 1895. This patent was considered by this court in the case of Extraction Co. v. Brown, 43 C. C. A. 568, 104 Fed. 345, and it was held that an ore-roasting furnace constructed in accordance with the specifications of that patent, with a supplemental chamber designed to protect the rabble operating mechanism from the direct action of flames and dust, and located underneath the hearth of the oven instead of at the side thereof, infringed claim 1 of patent No. 471,264, granted to Horace F. Brown on March 22, 1892. This court held, in substance, for reasons fully stated in its opinion, that claim 1 of the Brown patent should be construed to cover a supplemental chamber placed beneath the main roasting chamber, and designed to protect the rabble operating mechanism from the direct action of the flames, heat, and dust within the oven, because a supplemental chamber so placed was a mechanical equivalent for a supplemental chamber located at the side of the oven and designed for the same purpose. 43 C. C. A. 576, 577, 104 Fed. 353, 354. A motion for a rehearing having been filed after the announcement of our decision in that case, we declined to recede from that construction of the Brown patent, although we did hold that the device covered by claim 4 of the Brown patent, which we had not considered in our original opinion, was' anticipated by earlier patents, and that that claim was void. 49 C. C. A. 147, 110 Fed. 665. The present action, which was entitled in the lower court “Horace F. Brown, Selwyn C. Edgar, and Collinsville Zinc Co. v. Lanyon Zinc Co.,” was pending in the lower court when the decision in the case of Extraction Co. v. Brown, last referred to, was announced; and as it appeared that the Lanyon Zinc Company, the defendant below and the appellant here, was using the Ropp furnace, and that the use thereof constituted the grievance of which the plaintiffs below complained, the circuit court, very shortly after the announcement of that decision, granted an injunction pendente lite. The injunction, by its terms, was to become effective on May 15, 1901, the order granting the same having been made on April 24, 1901; but before it became effective the operation of the injunction was further suspended by an order duly made and entered of record in the lower court, until the appeal from the order granting the injunction was heard and determined, or until the decision of the case on final hearing by the lower court, whichever event should occur first. This order, deferring the time when the injunction should take effect, was made on condition that the Lanyon Zinc Company should give a bond in the sum of $40,000, which was subsequently, executed, conditioned to pay such damages as might be occasioned by the delay. The case has not yet been reached for final hearing in the lower court, although it is said that most of the testimony has been taken, but the appeal from the restraining order was reached in its regular course at the present term of this court, and counsel for the appellees insisted on their right to a hearing and upon the entry of such a decree as they were entitled to upon the record that had been lodged in this court.
fact is that, owing to the manner in which the heat is applied externally to the floor of the furnace, the rabble operating mechanism which is located within the oven is subjected to the same degree of heat as the ore itself. We find in the patent of Munroe no suggestion of the supplemental chamber at the side or bottom of the main roasting oven, and cut off therefrom by a wall or partition, for the purpose of protecting the rabble operating mechanism from heat, fumes, and dust, such as Brown constructed and claimed, nor does it appear that Munroe had any such object in view. The advantages which he suggests and claims for his style of roasting oven are of an entirely different sort, and it is only by the exercise of great ingenuity that a plausible claim can be made that the one furnace was the prototype of or that it suggested the other.