Appellant, grantee of letters patent No. 513,603, dated January 30, 1894, for a flexible, ventilated eye-guard, failed in his suit against appellees. The following portions of the specification describe the device:

"My invention is to provide a flexible eye-guard that is ventilated by means employed in its construction which allows the air to circulate through the frame or portions thereof, while protecting the wearer against various annoyances, still, gives to the eye, unobstructed by frame material, full scope of vision."

"In the said drawings A represents the outer or marginal rim, constructed of longitudinal half round pieces of material or other suitable flexible material, between which or to which the edges of the ventilated flexible material, C, are held, being riveted, sewed or by other suitable means held in position. The inner rims, A', surrounding the elongated flexible centers or flexible lenses, B, may be constructed of the same material as the marginal rim, A, or of other suitable material which will hold the lenses or centers in position and to the flexible, ventilated material, C. The rims may be constructed of metal, gutta percha, cloth or any suitable flexible substance, held together by rivets, a, a, a, or sewed, or by other means fastened to the ventilated portion of the frame.

"The ventilated portion of the frame holding the elongated centers or lenses may be of any perforated or porous substance which will permit the circulation of air and yet obstruct partially or entirely the passage of dust, insects or other substances liable to annoy or do injury to the wearer and I employ such material as hair cloth, wire gauze, perforated sheet metal, or other suitable flexible material.

"The lenses may be transparent or semitransparent of any flexible nature and if desired waterproof I use mica, flexible glass, or other suitable material. However it is not essential at all times to employ the use of waterproof material in which event I use veiling, wire gauze, bolting cloth or other suitable material for the centers.

"The centers or lenses are elongated to cover beyond the outer corners of the eye, thus enabling the wearer to obtain full scope for the use of the eye without necessitating turning the head.

"The eye-guard is held in position in front of the eyes by means of elastic cord or suitable fastenings attached to the sides at b or by means of the ordinary spectacle bow with fastening adapted to apply when the eye-guard should be reversed.

"Due allowance must be made in construction for the eye-guard to conform to the features of the face."

The claims which are alleged to be infringed are these:

"(1) A flexible ventilated eye-guard consisting of an outer flexible rim inclosing a flexible ventilated frame surrounding the orbital space having flexible lenses secured thereto in the manner and for the purpose substantially as described.

"(2) A flexible ventilated eye-guard consisting of an outer flexible rim inclosing a flexible ventilated inner frame surrounding the orbital space having interchangeable flexible lenses secured thereto in the manner substantially as described.

"(3) The combination in an eye-guard composed of an outer flexible rim, A, of an inner flexible ventilated frame, C, of the flexible lenses, B, and the fastenings therefor substantially as described."

Among nearly a score of prior patents in the record are No. 295,242, Genese, 1884, and No. 41,209, Everett, 1864.

Charles Turner Brown, for appellant.
Florence King, for appellee.

Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.

BAKER, Circuit Judge (after stating the facts). From the wording of the specification and claims it is quite evident that Tileston believed himself entitled to a monopoly of all forms of flexible ventilat

ed eye-guards, in which appears the combination of a flexible rim, a flexible, ventilated frame, and flexible lenses.

Genese described and claimed "a flexible, air-tight, eye-guard, consisting of a frame of flexible material completely surrounding the orbital space, and having plane lenses of mica, or other transparent and flexible substance, and an elastic marginal body secured to said frame."

This Genese eye-guard is made air-tight because it is designed to guard from noxious vapors the eyes of employés in metal working and chemical manufactories; but it covers the device of the patent in suit, element for element, flexible rim, flexible frame, and flexible lenses, except that the frame is made of solid instead of perforated or porous material. In his specification Genese states that his frame is "made from thin plates of easily flexible material, such as lead or copper”; that is, the frame can be bent and will stay bent so as to secure a close contact between the rim of the guard and the face of the wearer. Appellant's counsel seeks to differentiate by asserting that the flexibility which Tileston described and claimed was the resilience which, when the bending pressure is removed, springs the material back to its original position. The contention has its basis in the ingenuity of counsel, not in the patent. Tileston's frame is made from "hair cloth, wiregauze, perforated sheet-metal, or other suitable flexible material." So the Tileston frame is obtained by perforating the flexible sheet metal of Genese's frame. And invention cannot be predicated merely on making holes for purposes of ventilation, even if Everett and others, as early as 1864, had not shown the use of wire-gauze for the frame of eye-guards.

The decree is affirmed.

CLARK et al. v. HARMON S. PALMER HOLLOW CONCRETE BLDG.

BLOCK CO.

(Circuit Court of Appeals, Seventh Circuit. November 15, 1906.)

No. 1,268.

PATENTS-ANTICIPATION-DESIGN FOR BUILDING STONE.

The Palmer design patent, No. 36,806, for a design for artificial building blocks, showing the upper portion of the block having a rock face and the lower part smooth, is void for anticipation and lack of invention; it being shown without contradiction that houses still standing were built, prior to the application for the patent, of alternate layers of rock-face and smooth-face stone, presenting substantially the same appearance to the eye as a building of stone made after the design of the patent.

Appeal from the Circuit Court of the United States for the Eastern District of Illinois.

The decree appealed from enjoins appellants not to infringe a patent belonging to appellee and not to compete unfairly in trade. The patent is No. 36.806, issued on February 16, 1904, to Palmer for an ornamental design for artificial building blocks, and reads as follows:

"To All Whom It May Concern:

"Be it known that Harmon S. Palmer, a citizen of the United States, residing at No. 1450 Binney street northwest, in the city of Washington, District

of Columbia, have invented a new, original, and ornamental design for artificial building blocks, as disclosed by the accompanying drawings, made a part of this specification, of which the following is a description.

"Figure 1 is a front view of the block, and Fig. 2 is a side view.

"Having thus disclosed my invention, what I claim, and desire to secure by letters patent, is

"The ornamental design for an artificial building-block substantially as herein shown."

Howard G. Cook, for appellants.

Chas. J. Williamson, for appellee.

Before GROSSCUP, BAKER, and SEAMAN, Circuit Judges.

BAKER, Circuit Judge. Witnesses for appellants, whose testimony stands uncontradicted and whose veracity is unassailed, establish several instances of prior use.

In a house, built years before the patent was applied for, layers of rock-face and of smooth-face stones were alternated. If one rockface stone lying upon a smooth-face stone be taken as a unit, the seam between them is so fine that to the eye of the ordinary observer the design is the same as if one stone were dressed partly rock-face and partly smooth-face. The smooth part in this instance was only about one-fourth of the width of the rock-face, while the patent indicates that the parts are of substantially equal width. On this ground, and for the further reason that the smooth-face and the rock-face parts were not made in one piece, it is contended that the instance in question is not an anticipation. The architect testified that there is no fixed rule respecting the comparative widths of the two layers; and the appearance to the eye would be the same, we find, whether two stones were used or only one with a line of separation marked thereon. But, if it were conceded that this instance is not sufficient as an anticipation, we are of the opinion that there was no invention in taking as a design for one piece a design that had appeared from the use of two pieces in conjunction.

The objections as to the relative widths and as to the design not appearing on one stone are met by the other instances.

Bearing in mind the familiar rule, we find no basis for the slightest doubt of the testimony concerning prior use. The witnesses said that the structures were in existence, as erected, at the time they were testifying. Owners, architects, workmen, averred that the structures were put up many years prior to the application for the patent. Ap

pellee offered no evidence in contradiction, and was and is content to invoke the rule of reasonable doubt. The structures speak for themselves on the question of design. Their nature and their location were such that no pretense can be made that they were erected for the purposes of this case. As to their age, the pertinent question here was not whether a particular building was, erected in 1881 or in 1882, for instance, but whether the buildings were in existence prior to the alleged invention in 1904. On that we think it not unfair to conclude that the appearance of the structures convinced appellee that the testimony as to age could not be disputed. The Barb Wire Patent, 143 U. S. 275, 12 Sup. Ct. 443, 36 L. Ed. 154, Bettendorf Patents Company v. Little Metal Wheel Company, 123 Fed. 433, 59 C. C. A. 473, and other cases in which the thing done can only be known as it is reconstructed, years afterwards, from the memory of witnesses, have no pertinency.

As to the unfair competition branch of the case, there is no evidence whatever on which to support the decree. Appelants simply sold the alleged infringing blocks as of their own make, with no attempt and no intent to palm them off as the goods of another.

The decree is reversed, with the direction to dismiss the bill for want of equity.

NATIONAL GLASS CO. et al. v. UNITED STATES GLASS CO. et al. (Circuit Court of Appeals, Third Circuit. January 16, 1907.)

No. 50.

PATENTS-INFRINGEMENT-FURNACES FOR REHEATING GLASSWARE.

The Schulze-Berge patent, No. 411,131, and the Caldwell patent, No. 442.855, both for furnaces for reheating or fire-finishing glassware, as limited by construction in prior suits to the precise mechanism described, held not infringed by a furnace which does not have a laterally projecting floor, which is an essential feature of both.

Appeal from the Circuit Court of the United States for the Western District of Pennsylvania.

For opinion below, see 147 Fed. 254.

James K. Bakewell, for appellants.

M. A. Christy and George H. Christy, for appellees.

Before DALLAS, GRAY, and BUFFINGTON, Circuit Judges.

BUFFINGTON, Circuit Judge. In the court below the National Glass Company and another filed a bill charging the United States Glass Company and another with infringement of patent No. 411,131, to Schulze-Berge, and No. 442,855, to Caldwell. That court, in an opinion reported at 147 Fed. 254, dismissed the bill for noninfringement. Thereupon this appeal was entered.

These patents were before this court in the case of Bryce Bros. v. National Glass Company. In an opinion reported at 116 Fed. 186, 53 C. C. A. 611, the art is so fully set forth, and the devices illustrated and so fully described, that reference to these opinions precludes the neces

sity of present description. Referring to both these patents it was in the last-mentioned case held by this court:

"That the inventions are not of a pioneer or primary character, and that therefore they must be confined and limited to the precise device, as described in the specifications and claims of that art."

Of the Schulze-Berge patent, here involved, it was there said:

"The essential structural peculiarity, therefore, is a furnace with a laterally projecting floor, 02, of the combustion chamber, in which floor the glory holes are placed, so that a glass article may be vertically raised or lowered, in presenting it to them and withdrawing it from them."

And of the Caldwell patent:

"It will thus be seen that there is described and shown a glass furnace and combustion chamber, having the essential characteristic of that patented in No. 411,131, to wit, the laterally projecting cover, with the glory holes therein and thus accessible from below. Both require a glass-heating furnace, and both require that that furnace should be so constructed as to have a laterally projecting floor that would admit of a glory hole therein and be accessible from below."

Now, the construction thus placed on these patents, which is now the law thereof, the court below followed and applied. The respondents' device has no laterally projecting floor. Lacking this essential feature of the two patents in question, there can be no question that it does not infringe. Moreover, this laterally projecting floor made possible the use of a revolving table on which the glassware was carried through the furnace. This table is an element in all the claims of the Caldwell patent here involved, and a revolving table cannot be used in the respondents' structure. Restricting the claims, as the court below rightly did, to the limited scope awarded them by this court in the prior case, its decree was a logical sequence.

It must therefore be affirmed.