made in the description of the patented improvement while the application was pending in the Patent Office. It states that the invention has for its object to produce a cooking vessel of such construction that the water can be drained from the article being cooked and steam allowed to escape without the necessity of lifting the cover from the vessel, and that it consists in the "novel arrangement and combination of parts more fully hereinafter described and specifically pointed out in the claims." After describing a "perforated steamer," claims for which were subsequently withdrawn, it proceeds:

"This invention still further consists in the novel construction of the operating handle for the purpose of opening and closing the lid or cover; furthermore the invention consists in the employment of suitable means to hold said cover in position. * Fig. 2 is vertical sectional view showing the cover in a closed position over the vessel. Fig. 3 is a vertical sectional view showing the cover drawn back and the vessel open sufficiently to allow draining and the escape of steam. Fig. 4 is a top plan [corresponding to Fig. 2]. Fig. 5 is a top plan corresponding to Fig. 3. Fig. 6 is a detail perspective view of the operating handle."

It is sufficient to reproduce Figs. 4 and 5, which show very clearly the combination of parts; B being the cover, with its annular flange, a, and D the operating handle.

The inventor next describes the operation of his device. After a reference to the so-called "steamer" he proceeds:

"When it becomes necessary to drain the water from the vessel the operator lifts the vessel by the handle with left hand, which leaves the right free to manipulate the handle which engages with the cover and draws it back a sufficient distance to allow water and steam to escape; and in this connection particular attention is called to the operating handle which is so formed as to engage in its operation with the flanged portion of the lid or cover and thereby withdrawing its projecting portion from over the spout a sufficient distance to allow the water to drain and steam to escape as shown in Figs. 3 and 5 of the drawings. The rim on top of the vessel is so formed as to coincide with that of the lid or cover. It is so constructed, however, as to allow enough room or play as to effectually operate as heretofore described."

The application as filed contained six claims. Nos. 3 and 4 related to the "steamer," and were promptly rejected, and rejection acquiesced in. Nos. 1, 2, and 6 enumerated the "steamer," and were rejected, and thereafter modified, so as to eliminate that element. No. 5, which was merely for "operating handle, D, pivoted at d," was rejected on prior English patent to the same inventor. Four claims were then submitted, which contained no reference to a "steamer." No. 2 reads:

"In a cooking vessel having a spout, a lid completely covering said vessel and spout to close the same, and an operating handle engaging said lid to effect a forward or backward movement of the same to open and close said spout, substantially as described."

In the other three proposed claims this movement of the cover by the operating handle is set forth.

In reply the Office wrote:

"The examiner is unable to see how the operating handle draws the cover from over the spout, since from the drawings it appears to merely bind the cover to the vessel."

The examiner's investigation of the application must have been very superficial, because the drawings quite clearly show just how the operating handle draws the cover from over the spout. Replying to this inquiry applicant wrote:

"The backward movement of the lid is effected through oppositely arranged inclines of the annular projecting flange of the lid and of the operating handle."

Despite this statement of what seems to be self-evident on inspection of the original application and drawings, the examiner again wrote that:

"The alleged operation is so far from a reasonable one that a model is necessary to an understanding of the invention."

The model was duly filed. Thereafter, in criticism of the claims then pending before him, all of which referred to the backward movement of the lid by the operating handle, the examiner wrote that they "are drawn to cover merely the capabilities of the device." This was more legitimate criticism, although as to some of the claims then before him it seems rather overstrained. He added that in his opinion the real point which the applicant was seeking to cover would be brought out by a claim which he suggested, and which is identical with claim 3 of the patent as issued, adding that such a claim would probably receive favorable consideration, and "is held to cover all the patentable novelty in the case." Inasmuch as throughout the specification this movement of the lid is made the one prominent feature, as indicated in the drawings, was explained in applicant's letter as to "oppositely arranged inclines," and-if the model conformed to the specifications -was practically embodied therein, it cannot be supposed that even the examiner could then suppose that the "real point" which applicant was "seeking to cover" was a locking handle which merely held the cover in place without operating at all to shift its position. The latter part of this proposed claim, as to the relative longitudinal diameters of cover and kettle, indicates that it was contemplated that there should, in the language of the specifications, be "room or play to effectually operate as heretofore described." Moreover the examiner had before him Obermann's prior patent, No. 334,459, referred to in applicant's specification, which showed a "handle provided with a hook, the whole being suitably pivoted upon the vessel and so arranged that the hook will overlap the edge of the cover when turned to the position shown in dotted lines Fig. 2." This hook has a straight finger. The one of the patent in suit is curved; but certainly there could be no patentable invention in this mere change of form, unless it accomplished some

useful result, and the only result hinted at is the effecting of a backward movement of the cover before it is locked in place.

The applicant accepted the awkwardly drawn claim which the examiner offered him, and from the other two claims, which at the end he had pending, eliminated the words "to effect a backward movement of the cover," which the examiner had criticised as "attempting to claim the apparatus, by referring to its capabilities, instead of its construction," and the three claims issued as set forth supra. But in view of the specifications, which remained unchanged from first to last, we cannot hold that the action of the Patent Office so broadens these claims as to warrant a construction that would cover a type of operating handle which merely holds the cover in place, without first shifting it so as to allow the escape of water and steam.

The order is reversed, with costs, but without prejudice to a renewed application for injunction, should complainant be able hereafter to show the manufacture or sale by defendant of kettles similar to those manufactured before the agreement of April 30, 1906.

(176 Fed. 561.)

FOREST CITY FOUNDRY & MFG. CO. v. BARNARD. (Circuit Court of Appeals, Sixth Circuit.

February 8, 1910.)

No. 1,979.

1. PATENTS (§ 66*)-ANTICIPATION-UNCLAIMED FEATURE OF PATENTED DEVICE. A patentee is entitled to a beneficial use of a feature of his device if it actually exists, although he did not specifically claim it, and it may constitute an anticipation of a later patent.

[Ed. Note. For other cases, see Patents, Cent Dig. §§ 79-81; Dec. Dig. § 66.*]

2. PATENTS (§ 328*)—ANTICIPATION-FLUID DISTRIBUtor.

The Barnard patent, No. 580,151, for a fluid distributor, held not anticipated, and valid.

Appeal from the Circuit Court of the United States for the Northern District of Ohio.

In Equity. Suit by William N. Barnard against the Forest City Foundry & Manufacturing Company. Decree for complainant, and defendant appeals. Affirmed.

W. T. Arnos, for appellant.

W. T. Read, for appellee.

Before SEVERENS and WARRINGTON, Circuit Judges, and SANFORD, District Judge.

SEVERENS, Circuit Judge. The complaint made by the bill in this case is of the infringement of letters patent No. 580,151, granted to W. S. Barnard as assignor to William Nichols, April 6, 1897, for improvements in fluid distributors. The defense is that the patent is invalid because of anticipation by earlier patents; and by two, especially, one of which is a patent to Rhodes, No. 185,965, granted

January 2, 1877, and the other a patent to Forster, No. 220,277, granted October 7, 1879. The first of these last-mentioned patents was for improvements in water distributors, and the second, for improvements in lawn sprinklers. The court below held that the patent in suit was not anticipated, and that it was valid. This is the sole question controverted here.

Barnard's invention, as he says in his specification, contemplated two leading features; a chamber wherein the fluid is caused to receive a reverberatory and gyratory motion, and a discharge-opening through which the fluid is delivered from the chamber and immediately released without passing, as in other distributors, through an elongated passage or tube. For these purposes he devised a discoid form of chamber-that is to say, consisting of two circular plates parallel to each other and a few inches apart which were connected at their outer edges by a circular band or plate of the same diameter, the whole resembling a very short drum. Tangentially to this structure he attached at its periphery an inlet tube through which the incoming fluid would enter the chamber and striking against the inside of the wall of the chamber would be whirled around the inside of the wall until it made the circle, and impinging upon the stream still coming in would be diverted inwardly thereby and would proceed in another circle inside of the first and so on until the convolutions came to the center of the chamber where, through an opening in one of the circular plates or heads of the drum-shaped chamber, the fluid would be discharged and scattered by the force and direction already given to it over an area somewhat proportioned to the force and violence with which it was moving when discharged. No other "mouth piece" was contemplated. The theory is that the fluid is converted into spray by its impinging upon the inner wall of the chamber, and by its impinging one part upon another by its convolutions, and also by its being impeded where its course is changed to leave the chamber. A witness likened the operation of the fluid to that of a "whirlpool.' Fig. 3 of the drawings shows a cross-section of the chamber, the adit pipe and the discharge-opening, B. The outer rim is the circular wall of the chamber. The claims are these:

Fig.3.

"(1) In a nozzle for spraying liquids a chamber substantially circular in one plane of section provided with an outlet-port and with an inlet-passage, the axis of which lies in the plane of a circular section and between a diameter and a tangent of such section; whereby a rotary motion is imparted to the liquid in the chamber by the force of the inflow which motion is retained after it escapes from the chamber, substantially as described.

"(2) In a nozzle for spraying liquids a chamber of substantially circular form in cross-section, provided with a tangential inlet-port, the axis of which lies in the plane of the circular section, and with an outletport delivering in a direction transverse to the axis of the inlet-port.

"(3) A spraying-nozzle comprising a cham

ber of approximately circular form in cross-section, provided at its periphery

with a tangential inlet-port, and at its center with an outlet-port, the axis of which is transverse to that of the inlet-port.

"(4) A spraying-nozzle comprising a chamber having two approximately circular side walls, and an approximately circular peripheral connecting portion, said chamber provided with an inlet-port adapted to deliver the incoming fluid against the connecting portion, and one of the said side walls being provided with an opening for the discharge of the fluid."

No question is made of the efficiency and utility of this device; and it seems to us, in view of the object sought to be attained, to exhibit a good deal of ingenuity in contriving the means for the method. But it is contended by the defendant, the appellant here, that similar devices to accomplish the same purposes had been invented and patented by Rhodes in 1877 and Forster in 1879. Of these, the Forster patent is the one most worthy of consideration as an anticipation, and we shall therefore dismiss the other remarking only that we find nothing in it which contains a suggestion of Barnard's invention. Forster's was a device for a lawn sprinkler. Fig. 2 of the drawings with a brief explanation will suffice for an understanding of it.

Fig. 2.

d

A

A is an up-standing water pipe, e is a plug having several spiral grooves, f, in its periphery, C is the sprinkler-nozzle composed of a tubular body, c, and a flaring mouthpiece, d. The plug, e, is driven tight into the lower end of the tubular body, c, and the function of the spiral grooves upon its edge is to provide water passages which impart a spiral movement to the water as it passes through the nozzle, and, in connection with the flaring open mouthpiece, break up the stream of water into a fine spray. We have followed the inventor's language closely. The points of resemblance to Barnard's device are very scanty. Counsel for the appellant claim that the spiral grooves perform the same function as the inside of the circular sides of Barnard's chamber does. It is possible that in Forster's device the water, to some extent, impinges upon the inside of the "tubular body" though he does not suggest it. But he would be entitled to the benefit of that feature, if in fact it existed. Goshen Sweeper Co. v. Bissell Carpet Sweeper Co., 72 Fed. 67, 19 C. C. A. 13; Goodyear Rubber Tire Co. v. Rubber Tire Wheel Co., 116 Fed. 363, 53 C. C. A. 583; Stilwell-Bierce, etc., Co. v. Eufaula Cotton Oil Co., 117 Fed. 410, 415, 54 C. C. A. 584; Eames v. Worcester Polytechnic Institute, 123 Fed. 67, 71, 60 C. C. A. 37. But he seems to construct his device in such form that the spiral streams of water shall converge at the nozzle and be there broken into spray. Assuming that some slight disintegration is effected by directing the water upon the sides of the tubular body, this would be only one of the several united means of effecting the desired object employed by Barnard; and taken as a whole his method is a very different way of breaking up the wa ter from that of driving it through the reverberatory chamber of Barnard's patent. There is not in Forster's invention the provision of means at all adapted to effect such a violent tumult of the fluid as