Blackman v. Hibbler. tion, says: “As the air passes the contracted throat, I, and enters the upper portion, it spreads out laterally, and, in connection with the burning oil, produces a very broad, brilliant, and steady flame," thus showing that the two parts were intended to operate as a whole, not otherwise. No such advantage could be secured by the base alone, and, naturally enough, such an advantage is not alluded to in the specification of the reissue. The reissue also wholly omits the statement, that, “in use, the chimney and base are intended to remain united, the whole being put on or taken off together," and inserts this statement, not to be found in the original: "While I have shown a peculiarly constructed chimney as adapted for use in connection with my base, it is obvious other kinds or styles may be used, if preferred." These alterations are suggestive, and go to confirm me in the conclusion that the subject-matter of the reissue is different from the subject-matter in the original. It may, also, properly be noticed, that, in a communication to the Patent Office by the attorneys of the patentee, in regard to this original patent, it is stated, that "the first claim. is for his improved mode of securing the mica sheets which constitute the body of the chimney, and the second for his specially constructed glass base, to be used in combination therewith." It has been contended, in behalf of the plaintiffs, that a chimney top of any description is the equivalent of the mica top piece described in the original patent, and that the subject-matter of the original and of the fifth claim of the reissue are, therefore, the same. But, evidently, such a mica top piece as the original patent describes has qualities and characteristic features not possessed by all chimney top pieces. It may be that the results accomplished by the use of the top piece of a lamp chimney are, in most respects, the same, whatever be the form of the top piece or the material of which it is constructed. But, the result is not in all respects the same, nor would the statement, that a mica top piece would be of use when firmly attached to the chimney base, necessarily or naturally suggest the use of any form of top piece not so attached, to accomplish the same result; and it has not been Blackman v. Hibbler. shown that any form of top piece was known, at the date of the original patent, as a proper substitute for the mica top piece described in that patent. These reasons appear to me to require the determination, that the reissue sued on covers inventions not described in the original patent, and is, therefore, void. But, if not, then the reissue, so far as the first, second, fourth and fifth claims are concerned, must fail for want of novelty in the invention. The reissue, in the claims under consideration, covers a transparent chimney case, whose characteristic features are these: (1) a tubular body, for surrounding the cone of a lamp burner and directing the current of air to the flame; (2) a contraction, groove, or indentation in the upper part of such tubular body, for directing the current of air inward upon the flame; (3) a flange extending laterally from said groove; and (4) a surrounding rim. This invention is plainly anticipated by the invention described in a patent issued to Arnold and Blackman, February 11th, 1868, as well as by the invention. described in the patent of Russell and Clifford, of December 24th, 1867. In each of these prior patents is described a lamp chimney base, made of glass, having a tubular body to place over the burner of a lamp, with a contraction or groove at the upper part, and a laterally projecting flange supporting the chimney top, and these features accomplish the same result that the same features accomplish in the plaintiffs' patent, and in the same way. The only distinction between the prior inventions referred to, and the plaintiffs' invention, is, that, in these prior inventions, the chimney base and chimney top were formed in one piece, while in the plaintiffs' invention the chimney base is by itself. But, no invention was required to conceive the idea that a lamp chimney could be cut in two; nor was the idea of constructing a lamp chimney in two parts new. In Millar's patent of July 21st, 1863, the lamp chimney was constructed in two parts. So, also, it must be said, that no invention was required to conceive the idea of a surrounding rim upon the upper part of the base, for the purpose of maintaining in position the separate top piece. The use of such a rim to accomplish the same result is com mon. Blackman v. Hibbler. Not only are the characteristic features of the plaintiffs' chimney base old, but the combination of the tubular body groove and laterally projecting portion above is old. Νο change in the mode of operation or the result was effected by cutting off the top piece. In use, there must still be a top piece performing the same functions, in connection with the plaintiffs' base, as the top piece does in the prior invention referred to. The mode of operation and the result are, in both cases, the same. Neither do the plaintiffs gain anything from the surrounding rim, which has formed the sole ground for claiming a difference between the invention in the patent sued on and the invention of Arnold and Blackman. No true combination results from the addition of the surrounding rim, for, there is no co-action between the rim and the tubular body. The only function of the rim is to prevent the top piece from slipping. The application of the surrounding rim for the purpose of preventing the top piece from slipping required no invention, and makes a case of juxtaposition, not a new combination. It thus appears, that, whether the invention claimed in the reissue be the same as that described in the original or not, it must fail for want of novelty. The result is, that the bill must be dismissed, with costs. Erastus New, for the complainants. C. H. Watson, for the defendants. Abandonment-Acquiescence. INDEX. ABANDONMENT. 1. The question as to what constitutes an abandonment of an inven- 100 2. A defence in a suit in equity, that the patentee has, since he ob ACCOUNT. SEE EQUITABLE JURISDICTION, I; JURISDICTION, 4, 5. ACCOUNTING. SEE MASTER, I; PROFITS AND DAMAGES, 4. ACQUIESCENCE. 1. Whether acquiescence can be inferred from failure to bring suit 2. G., having a patent for an improvement in stoves, acquiesced, See ASSIGNMENT, 3; LACHES, 2, 4. 441 169 353 Action at Law-Anticipation. ACTION AT LAW. See LIMITATION, 3. ACTION OF PATENT OFFICE. See COMMISSIOner, 1; Composition, I; PRESUMPTION, I. ADMINISTRATOR. See EXECUTORS AND ADMINISTRATORS. AGENT. See INJUNCTION, 5. AGGREGATION. See PARTICULAR PATENTS, 23, 108. AMENDMENT OF PLEADINGS. See BILL OF REVIEW, I. ANSWER. See ABANDONMENT, 2; PLEADING, 2. ANTICIPATION. 1. A feature in a machine, anticipating the invention described in the 2. The rule, that, a claim for a combination of old instrumentalities, . Clark Thread Co. 100 133 |