*1 COMPANY,Appellant, S. H. KRESS &

v. Elie P. Brass & AGHNIDESand Chase Copper Company,Inc., Appellees.

No. 7294. Appeals United States Court of Fourth Circuit. 9, Argued Jan. 1957. May Decided 1957. Rehearing Motions for Denied July Rehearing Further Denied Motion 11, 1957. Sept. *2 Freeman, Chicago, (Norman

Will 111. Block, C., Greensboro, N. D. D. Alle- gretti, Bair, Molinaire, and Freeman & Chicago, 111., brief), appellant. Adams, City, Morton New York R. (Albert Ely, Hamilton, Ely, Frye E. R. Ohio, Hamilton, Akron, Thomas F. & Morton, Reddy, Jr., Pennie, Edmonds, Taylor, City, Barrows New York & Brooks, Brooks, Thornton H. Mc- Lendon, Holderness, Greensboro, &Brim brief), appellees. C., on N. PARKER, Judge, Before Chief SOBELOFF, Circuit SOPER Judges.

SOBELOFF, Judge. Circuit From a decree of infringed District Court

holding patents valid two relating aerating water, to devices for adapted particularly for use in house- faucets, appeal hold taken. 2,210,846, patents issued to Elie August Aghnides, thereon, improvement for an issued to orig- April 29, him The suit was inally patentee, later filed Inc., Judge Company, Copper both held Chase Brass & District him, patents infringed, took an valid holder of a license assignment suit spite and, patents leave first the fact that *3 '846, previously in de- of had been declared Court and with the consent Ap party- fendant, valid Court an additional the United States became plaintiff. peals an for the Circuit because Seventh English ticipated by the Felten purpose patented devices Aghnides Goodrie, v. 210 F.2d coherent, is to stream obtain a aerated Judge’s opinion in District approaching observed emerg- splash as it water that will not constrained his task he felt from The device es a domestic faucet. if the evi to follow the Circuit Seventh tap and is attached to a kitchen water proper Expressing dence warranted it. essentially into consists of a chamber Court of that deference for the ordinary pres- which both water under he, however, found himself unable intimately sure and air and are delivered agree Appeals with it. As the Court issuing mixed there- so the stream Holden, itself v. declared in from entrained is a mixture of water and decision its Goodrie great volume bubbles. Because Circuit, adjudicata, res in same even mixture, in water is soft air privity since between there was no large produces and of suds volume defendants in actions. the two soap. when mixed The result through by projecting effected water many long experi- After a trial and diaphragm apertures at the small in a presence in the ments conducted in his chamber, upper there- or end of inlet Judge Hayes courtroom, con- District jets by breaking multiple the water into operated a differ- cluded Felten isAir as it enters into the chamber. principle achieve ent and did not through open- drawn chamber into the Aghnides. after another result of One ings side, mixed with the in the and it is made in the Goodrie observations turbu- water therein a result of the suggesting opinion, between similarities lence of water as it strikes resistance fully Aghnides, Felten an- preventing in elements the chamber by highly persuasive visual evi- swered through-flow free of the water. At the contrary. dence to the or outlet of the chamber a fine screen (Rule same Rule of Practice screens are The combination is located. U.S.C.A.) (a), Civ.Proc. 28 Fed.Rules typically in described the first claim upon which our brethren the Seventh patent ’846, quoted basic margin.1 which findings upholding Circuit relied in Judge clearly of their District as not improvement patent, ’832, com- putting erroneous would warrant our bines the basic elements of the above equal presumptive reliance in the cor- perforated diaphragm with a second or Judge Hayes’ rectness of District con- orifice, both, up- or at restricted trary However, conclusions. to avoid un- aerator, stream end of the to obtain a necessary Circuits, conflict between the perfect soft, splashless, more stream duty our we deemed it bubbly address our- water. opening producing jet chamber into the which 1. “A coherent water, bubbles, containing compris air induced stream of of water ing air path means, chamber, in the the inlet end of which is adapted discharge after it water leaves orifice and be- for connection with the discharges end, containing at the outlet fore end pressure a tube water under finely breaking up the water for of- and the outlet end of which is fering thoroughly adapted discharge sufiicient resistance for the said coherent mixing jet, diaphragm upstream it with air and for thereafter unit- at the end of ing having the aerated water to form coherent the chamber at least one orifice jet having through adapted small bubbles disseminated which the stream of water is throughout jet.” to be forced into chamber velocity, port with substantial an air independently special used in connection with a household selves and with successfully faucet had care of the District been to an examination marketed. findings. item, course, acceptance review The wide our and use of this Court’s Of equipment which has is of the in the District become standard record made plumbing industry supply below, Court different and is by leading record, appears more used be Goodrie faucet manufacturers comprehensive. detailed has been installed millions of homes, are circumstances not without Turning particularly to the more significance. patent, may ’846 in the noted that be *4 Court, Like the District we are unable pre case, supporting instant this further agree patent anticipated to that this was sumption provision of is the correctness by patent the Felten British No. 6012 of 282), (35 U.S.C.A. § Patent Act 1909, corresponding or the United States establishing puts which the of burden patent 1,090,044, No. issued to Fuss. asserting it; invalidity upon party the drawings patent of Felten the have validity presumption of the usual superficial a resemblance strengthened history pat by the this suit, but on closer examination Felten granted ent in only It was the Patent Office. will be found to be different. Felten controversy after considerable operates principle, on a different de- by Appeals, after review Board of the signed result, to achieve a different by upon the where the relied references utilized, plain- has never been as has the by closely considered defendant were all patent, supply tiffs’ the to householder possessing special administrative officials soft, coherent, splashless with a competence in the field. purpose of aerated water. The noteworthy 21,000,000 It is that Felten ozone was to add to water embodying patented units device it, to sterilize shown and it is not country, have been sold in and li actually was ever it used even for this by large censes have been taken concerns Judge purpose. Hayes had the benefit Co., Copper like Firestone Chase Brass & witnessing operation of demonstra- Chicago Co., Tire & Rubber Faucet equipment—a tion tank with faucets had, up Co. Chase Brass alone to aerators, pump the attachment of with a royalties trial, paid time of the on more circulating from the tanks water “Spring-Flo” than units its pressure faucets, with a according Aghnides teach gauge gauge. and a vacuum The testi- ing. taking license, Before had it mony singularly free the con- conducted an search of extensive the art creep fusions which often into the record attempts and made unsuccessful to attain demonstrations, courtroom and is Aghnides the results of invention respect clear and understandable. With by By payment other means. sub patent, the Felten Court found royalties, stantial such business concerns (f) ): (Finding XXVII attest their of the merit of the designed “This device is also While it is true that commercial a secure vacuum. Models success does thereof not determine either inven by validity tion or demonstrated to Court of a neverthe plaintiff less, may from which Felten’s in a con- doubtful case be a con struction, vincing operation mode of and re- factor. Great Atlantic & Pacif Supermarket Equipment ic Tea Co. v. sults were made evident. Felten’s Corp., 147, 153, 127, produce 340 fully U.S. 71 S.Ct. device does not 162; aerated, soft, 95 L.Ed. Textile Machine Works v. stream characteristic Machines, Inc., operate Louis Hirsch Textile 302 and does not 490, 498, 291, principle U.S. 58 S.Ct. 82 L.Ed. on the same or use 382; Hall, Smith v. 301 U.S. same combination elements. * * 711, 81 S.Ct. L.Ed. Before this *. Felten is so constructed invention, energy spent no water aerator could be water that the

(cid:127)722 creating contrary only vacuum and not se- contained striking

curing jets Demonstration naked water aeration. free air showed adds less than resistance screens. that it 5/10 air 1 cubic of a cubic inch of “The fundamental nature Aghnides’ inch of water whereas difference between the Felten inches or adds 6 cubic aerator Aghnides’ and the was also aerator much. times as visually demonstrated to this Court by only providing (P. it demonstrated “Not Felten device 42) greatly result different Exh. re- Felten’s increased by dif- his result sistance below his he secures baskets—in different amount of 21 screens! The device ferent elements substantially operation. The none the created mode of less secured same amount the result is of vacuum as states that widening showing ‘conically screens, did without means of widening e, that the de- intended function chamber produces changed great manner known vice was in a well even *5 gas per- change the from of the in the amount of resistance. the suction owing hand, flow of the to the On the d other when the resist- foration liquid Aghnides’ perforation (P. c into ance of an aerator from the adding (Felten 42) by chamber e’. Exh. was widened increased the 28). no Patent, p. 1, only has pro- This proper line three screens its Felten, Aghnides. counterpart portioning destroyed, was the device keep result, must his to secure flooded and for it became useless its opposite flooded—the exact chamber purpose. intended also dem- It was Aghnides. demon- was This onstrated that are Felten’s baskets transparent by model a strated operation not essential to his possible 44) (Exh. which corresponding are not elements widening chamber see that to Aghnides’ essential resistance and that flooded all times was at shoulders; screens or when Felten’s jets strik- individual were no there ing removed, baskets were his device flooding Felten’s baskets. operate would still with a flooded also demon- was chamber high produce vac- chamber drilling by a hole into a strated uum.” widening whereupon water chamber findings foregoing supported are and, air squirted when the out by evidence, pointed substantial and con- by provided inlet Felten persuaded they vincing, and we are off no was cut the chamber above They not be set aside. show that should any place and the device air entered present, some air while in Felten was inoperative even as a vacu- became in the amount of air would de- increase necessity pump. for Felten’s um flooding operation device, since feat by demonstrated also vacuum; desired was what was where- flooding eliminating (by remov- Aghnides presence large as baskets) ing under which outlet quantity of air was desired to effect produced circumstances aeration, is the heart of the in- jet with neither vac- of water mere solidly grounded these Unless vention. This is a funda- nor aeration. uum disregarded findings complete- are to be mentally operation mode different ly, conclude must the Felten Aghnides as could be we seen than patent No. 6012 of Agh- British and the of an demonstration corresponding United cut States sides out nides’ aerator Agh- 1,090,044, 39). Fuss, anticipate do not The chamber in No. (P. Exh. widening invalidity and do not indicate one as in is not nides flooded invention thereover. was not on lack of Felten by patents perceive defend- one The other cited skilled the art can objective produce the pointed solution ants also failed after it been has found Aghnides They else; were device. out test someone Agh- applied purpose time, never to the obviousness as of an earlier earlier In these when nides Court the search is If on. the answer patents splashing, violent, diver- to the emitted riddle were in fact discoverable gent readily claims, aera- as desired streams without the as the defendant now prob- None them it seems tion. refers incredible that with a latent Aghnides strong enough him- lem addressed demand to which result prior patents, than device, self. The Felten, other sale of art units chiefly persistent which were relied on the try researchers in the indus- Hyatt. defendant, engrossed by who problem Solomon 405,316, British No. would Solomon have been blind to the solution beer, example, by Aghnides. for produces to aerate intended found bubbly comparable no Agh We conclude that the '846 produced device. nides device was mere inventive slight quantity of air admission ly ordinary art, within the skill of the increases sufficient froth beer anticipated by and that it was not perform purpose. the desired It will not prior Judge’s findings art. The District Aghnides, the same as was function only adequately are not supported, but Judge. demonstrated the Trial before appraisal accord with our own 326,221, patent Hyatt, The British No. evidence. purifying water is a massive device for Defendant contends that because large for cities or industrial installa- *6 plaintiff Figure admits that 8 of the tions, and not the ob- addressed to patent2 ’846 prior art, is in the delivering jective of an aerated stream patent in claims are invalid. The point of use. water at the complete answer is that the claims are patent Other wider references are even figure not directed to this and do not counterpart of the mark. None is the upon any they read more than read principle, opera- No. in upon scope Felten. The of the claims is results, tion, as or the demonstrations controlling, figures not the in the draw step by step proved in Even detail. ing. drawing A form shown in a is not speculations as to certain modifi- how necessarily granted by covered might pre-existing in cations devices application pat claims. When an for a adapt them achieve the desired re- filed, many may ent is forms be shown by experiments refuted actual sult were attempt and an made to cover them all open The in court. demonstrations in originally presented. in the claims as the District Courtroom are entitled to During prosecution applica of the special weight, because resemblances and tion, however, may the claims be re readily not noted differences from verbal light prior in stricted of the art. graphic descriptions or illustrations were only end, In the certain of the forms vivid use of models constructed may shown be covered the restricted transparent material make the claims. Whether the forms not covered operation of various devices of the surviving by the claims remain in the clearly experiments visible. patent or drawing are cancelled from the immaterial, claims, The usual defense that the re for the and not the drawings, been sult would have obvious to one control. We consider it im Figure 8, art cannot avail skilled the defend material which is not by any claims, Obviousness does ant here. not mean covered of was pressure Figure mixing pipe increasing device 8 illustrates a in a under exemplifies or more fluids. diameter will create a two It what suction draw converging pipe. prior the fluid from to itself art is known as the Venturi namely, principle, that a of fluid 724 granted Clearly, patent. language applies

omitted Denomi this well to as Envelope Duplex En national Co. v. the accused structure as to numerous 192; figures velope Co., Cir., 80 F.2d of the ’846 fact Corp., 7 Bassick Co. v. Faultless Caster defendant’s structure uses an Cir., 228, 231; Freed see also “onion” and inner surfaces in single Cir., Friedman, 242 F.2d 364. man v. chamber and a outlet screen necessary resistance, create the Aghnides whereas Circuit Seventh screens, plurality uses a form one commented the fact that They is an immaterial circumstance. Aghnides’ may as a vacu- be used equivalents every sense. The claims largely pump and, apparently, um clearly of the ’846 read on the Aghnides reason, this invalidated the Mfg. defendant’s structure. See Graver prior equivalent an of Feltens as Linde, 605, 607, Co. v. 339 U.S. 70 S.Ct. patent. The have been reference must 854, 94 L.Ed. 1097. Figure 8, only form of pump; '832, that can function as a second which is claims, upon improvement form outside the because claimed to be an first, pro- general respond or does not to their terms covers the same combina- aerated patent, plus of an duce the desired result tion as the basic an added element, apertured stream. an additional dia- phragm upper part in the of the cham- infringe- Contesting charge ber, upstream or a restricted orifice ment, dis- undertook to defendant chamber, forth or both. This is set tinguish device, “Mel- the accused called in claim member one as a “foraminous O-Flo,” Manu- Melard manufactured upstream diaphragm”; apertured facturing plaintiffs. Co., from that up- in claim two orifice as “restricted top has, at the aerator defendant’s apertured diaphragm”; stream of the chamber, diaphragm with small claim three as a “restricted orifice through which the water orifices aper- upstream foraminous member diaphragm goes, the faucet and below the diaphragm”; tured “superposed apertured diaphragms in claim four casing for the is a lateral holes at diaphragm is admission of air. The upstream end of the chamber *7 ring plate that formed and a adapted forced into which water is to be ring. provid- plate seated in the velocity.” the chamber with substantial plate is not ed perforated, itself with teeth. parts are but when the Aghnides original, or But the brought openings together, are there taught already patent, the ’846 use had through the around the border up diaphragm perforated of a at the escape This downward. water can stream to force water end the chamber plate substantially apertured or the like ve into the chamber with substantial plates upper of the chamber the end at locity. Merely adding perforat another plaintiffs’ device. the diaphragms up diaphragm ed or the at non- contention of defendant’s end, or another screen or screens device, infrisgement the accused is that end, nothing new, at the outlet especially introduces plaintiffs, not does unlike that patent had as the earlier screens” to effect “resistance utilize perforated plates or screens shown that mixing break-up or of the water position, used in either and that could be however, patent, The claims of the air. “even results can be obtained if better and are not limited to such are broader superposed two or more screens are used pointed above, discharge.” out claim Adding screens. As in the outlet changeable inter simply path diaphragms for “means in calls the one screens or at the * * * merely of the stream finely water for end is a means of other ing maintain breaking up proportion the water and the between inlet and offering outgo, sufficient resistance for thor- does rise to not the level of * * mixing oughly patent. with air *.” over the earlier invention Nor tunity patent develop now the information he ’832 does the feature of the second present, novelty seeks the did not do dur- or but so in the device introduce ing Merely pendency not- the of the trial. In this to be achieved it. result ing case, discharged strongly we are the disin- water is more that “when the Judge Hayes’ clined restricted to interfere with [into chamber] discretion, pipe] flow exercise of because on the fully that [a orifice through narrow agree upstream us, dia- documents before we in the the orifices improved,” context comment that were phragm even if the case is—in including gone reopened, proffered testimony before, would of all that had meagre Aghnides’ not alter the result. From our ex- own own contribution—too regarded discovery patent amination of the as invention. United States to be Belgian changes ’846 patent, normal we think to be seem they unquestionably experience are, true that of skill and obvious result Aghnides gained inven- practice ’846 told the Patent United States Office, They new the same Whether or no invention. tion. are entitled to Aghnides applica- not they another occasion variations in the disclosed, already an principle inconsistent claim in Canada obtain tion patent there, consequence important is an need issue we of no and are mechanically not there, no decide. If he accorded made a misstatement and should be might validity upon significance legally. this bear We conclude of his Atlantic Canadian It would invalid. See the ’832 192, 200, 2 alter he Brady, the fact that what told Works v. U.S. Ry. Ap- 225, 438; United was States Office the truth Wine Patent S.Ct. 27 L.Ed. Co., 4 and pliance R. here obtained & O. Co. v. Baltimore deception Cir., there or Even if we others without fraud. prepared were to assume what we are not cited. adjudicate, repre- that the inventor’s portion defend- A considerable sentations to Canadian Patent Office argument us before ant’s briefs and untrue, this would not misconduct not in the with matter was concerned closely proceedings be so related to the attempted record, raised to be country in this issuance of the many reopen weeks motion to the case to him here as to invalidate trial, which after the conclusion grant unclean hands or to constitute such long period months. over lasted as to him relief asks disentitle he to show Therein offered the defendant case. represented to the had the inven- Office that Canadian Patent complains Defendant applications cor- tions his Canadian trial court’s failure to dismiss com *8 responding patents in suit to the plaint Copper and to Chase Brass covered inventions as those not the same argument Company, Inc. that is by Belgian application prior a although party plaintiff Chase became a States, Aghnides; United whereas in the with the consent—almost insistence—of date, get he an the earlier to benefit defendant, the complain and defendant does net represented previously the in- had that Chase, intervention application vention United States the nevertheless, no relief should be entered Belgian prior was the same as that the plaintiff in of this favor the case application. it, should to be dismissed as because infringement Ordinarily, prove or not Chase failed to whether after assignment reopened reception patent for the the to case shall it. be Yet argued testimony injunction discre is the defendant that no of additional in granted Judge, Agh discretion should be at instance tion of the Trial which longer nides, appeal. on he no be Particu because is will not disturbed the owner moving larly party Accordingly, although patent. is this so where the long Aghnides, reopen oppor- it had and full Court has before has who was 726 infringement the owner when oc- claimed in the first Traitel

curred, injunc- Chase, assignee, Hungerford his Marble Co. v. T. Brass U. relief, said, Co., tive Copper supra; Montgomery not to allowed. be & Ward Gibbs, 466; We find tention, con- Cir., no in the defendant’s & merit Co. v. 4 F.2d Jor- 27 457; Hemphill Cir., first time on this Co., raised dan v. 4 180 F.2d appeal, especially Corp., to the as it consented Brands Standard v. Federal Yeast D.C.Md., (Soper, J.); its admission of and announced 38 Chase F.2d 314 Weath- any against Co., Supply intention to utilize Chase erhead Co. 7 v. Drillmaster against might Cir., 98; Danbury decree rendered 227 be F.2d Bethel & parties Cir., before Hatters, it. With all in interest Fur 54 Co. v. American 2 Court, position do 344; was in a F.2d Massachu- Co. v. Sturtevant complete justice. Cir., Co., setts F.2d Hair & 122 Felt 900; Sherman, In re part, part in reversed in Affirmed C.C.P.A., Patents, If second passage de- of a remanded for application merely claims inven- the same conformity here- cree in the views already applicant tion which has expressed. course, will, been awarded a he patenting, Rehearing permitted, not be double Motions for On beyond monopoly to extend his seventeen years. policy protect PER CURIAM. law is to by granting monopoly the inventor him a parties motions Both submitted have expira- term, upon for a limited its but rehearing. plaintiffs contend public practice tion the is entitled to holding opinion, the Court’s invention all its modifications improvement patent invalid No. certainly variations. There reason no ig- patent 2,210,846, No. over the basic grant monopoly him a for an extended co-pending patents. nored the rule as period upon patent a variant of his Ordinarily, patent, valid to be would obvious to be one skilled in the art. prior art, an advance over the must be case, supra, Traitel in which the whole disclosure contained in over the specifications Judge Hand, is was Learned prior patent. of a or claims „ proposition sometimes cited for th normally apply where even This rule will patent the claim the second need person applicant to whom same is the all, application be inventive at if issued, prior because what pending applicant filed while the has a by the is disclosed not claimed ever reading prior application. careful But a considered as aban former bewill opinion, of that as well as the other cases However, public. where doned above, Judge cited shows Hand that what application applicant while files a second meant and said was that the claim pending one is still ir. earlier application patent- second need not be Office, the first con Patent advance able over the disclosures disclosures not embodied tains claims, embodying specifications (as from he not barred distinct ap agree claims) application. the unclaimed disclosures in the later of the first All patentee case, plication. In such because the first cannot reclaim what has public already patented *9 application not been has still been claimed and filed, is the unclaimed the second him. when first are not disclosures narrowing Neither the end inlet preventing an abandonment their deemed aerator, nor the addition of “a being claimed in the second. Traitel member” makes the second foraminous Hungerford Co. v. U. T. Brass Marble separate patent invention. Even dis- Co., Cir., 259, Copper 261. & regarding specifications looking patentable, however, solely To patents, be claims at the of the two plain claims of the second must be it two involve the same patentable a different invention for than that invention. The claim of the “a foraminous patent speaks of second Joseph McDONALD, Appellant, S. apertured dia- upstream the member phragm,” pat- v. first claim while “dia- UNITED upstream America, only STATES mentions ent Appellee. same ; mean phragm” terms but the No. 5496. thing. claims It true diaphragm patent, only such one the first United Appeals States Court sec- the claim prescribed, while Tenth Circuit. member; such one ond for than more June 1957. significant be- difference there is but no patents. Rehearing two July claims of tween the Denied 1957. ofWrit Certiorari 28, 1957. Denied Oct. Changing of the function some See 78 S.Ct. 95. may an ing constitute parts adding invention, merely independent but ordinarily thing is not more of the same example, in separate For invention. major supra, case, five Gibbs patent, functioning parts the second only appeared in claims two had court what the the earlier pat heart of the second

considered the By not first. ent was contrast, claimed nothing case, dif or in our new in the ferent claimed second first. claims of the that was not in the Motion Defendant’s rehearing al- motion Defendant’s regard leges to with error Figure 8 in the basic the discussion of 2,210,846. patent No. We held that Figure de- do not read on claims rehearing says petition for fendant’s plaintiff has admitted that claims Figure 8, operate, on like the Venturi true, principle. While this is does not Figure 8, the claims read on follow that they although utilize the Venturi because principle, operate they not do Figure 8 embodies the principle alone. nothing only, principle Venturi merely provides pipe, more; flowing drawing it, a fluid converg- the fluid another itself claims, however, ing pipe. The Figure 8 to the other relate designed figures, for device to draw containing pipe water, air water, air, up mix it with break *10 aerated water. achieve rehearing motions for be Both will Denied