*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 Appeаls 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 samе 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- aerаtor, 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 оf 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 prоvision 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 achiеve 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 cоncerns 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. Grеat 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 thе 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, wаs 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 neсessity 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 nоt 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, becаuse 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,
curred,
injunc-
Chase,
assignee,
Hungerford
his
Marble Co. v.
T.
Brass
U.
relief,
said,
Co.,
tive
Copper
supra; Montgomery
not to
allowed.
bе
&
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 rulе 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
Neithеr 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
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