in his first application; but it is the end of the interference proceedings, and does show that nothing in them adjudged away that priority. The delay in that office is said, however, to have been caused by his abandonment of this first application, and the taking out of the patents on the subsequent ones before taking out this is said to have so superseded this as to make it void. Of course, there cannot "be two patents at different times for the same thing, to the same or different persons, and both be valid. The prior patent to the same person would of itself avoid the subsequent one, although the latter should be granted upon a prior application. But these patents do not appear to be for the same invention. The intermediate ones are for differences from and improvements upon that of Goodfellow's first application and last patent. Necessarily the later application somewhat described the apparatus of the first, but they do not claim it, nor so describe it as to of themselves show it to be abandoned. These claims for this mode of propelling the carrier seem, upon this consideration of them, to be valid. The defendant uses this method of propelling a carrier up an inclined way, to run back by gravity. He does not use the elongated two-part wedge of the specification and other claims for retaining the carrier at either end. It is said that without something to retain the carrier at the ends the apparatus would be inoperative, and that the wedge must be read into the claims for that purpose, or the claims must be held void, as for an inoperative thing. The invention covered by these claims is, however, this mode of propulsion, of which Goodfellow seems clearly to have been the first inventor, and by his persistence in the patent office not to have abandoned. Palmer came near it, as for a retarder, but not near enough to see its use as a propeller, and took the clumsy mode of raising and lowering alternately each end of the way to have gravity move the carrier instead. No one else seems to have come so near to it as Palmer before Goodfellow. There were prior carriers, but none of them had anything resembling this as a mode of propulsion. The claims of a patent distribute the parts of the invention described in the specification intended to be covered by each, and these claims seem to well distinguish this part of this patented invention from the other parts without drawing them into it. The right to it does not appear to have been lost, and the defendant appears to have taken it. Decree for plaintiff.

Albert H. Walker and W. S. Kerr, for appellant.
M. B. Phillipp, for appellee.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

PER CURIAM. Decree of circuit court affirmed, with costs, on opinion below.

(106 Fed. 989.)

PELZER v. DALE CO.

(Circuit Court of Appeals, Second Circuit. February 27, 1901.)

No. 91.

PATENTS-INVENTION-ELECTRIC LIGHT AND GAS FIXTURES,

The Stieringer reissue No. 11,544 (original No. 294,697), for a combined gas and electric light fixture, is void for lack of patentable invention, in view of the prior patent to the same inventor, which covered a device for utilizing gas fixtures for electric lights with safety, the improvement on such device embodied in the later patent, by which certain of the arms of the fixture were still used for gas, while the others carried electric lights, being one which would readily occur to a mechanical electrician.

Appeal from the Circuit Court of the United States for the Southern District of New York.

This was a suit for infringement of a patent. From a decree dismissing the bill, plaintiff appeals.

The opinion filed below, and here reprinted from 103 Fed. 494, was in full as follows:

SHIPMAN, Circuit Judge. This bill in equity was brought to restrain the infringement of reissued letters patent No. 11,544, dated May 26, 1896, issued to Luther Stieringer, assignor to George Maitland, in lieu of original patent No. 294,697, dated March 4, 1884, for a combined gas and electric light fixture. Another original patent had been issued to Stieringer, dated June 6, 1882, for an improvement in electrical fixtures, and had been reissued as No. 11,478, dated March 12, 1895. These two original patents were declared invalid by the circuit court for the Eastern district of Pennsylvania (Maitland v. Gibson, 63 Fed. 126), which decision was affirmed by the circuit court of appeals (11 C. C. A. 446, 63 Fed. 840). Thereupon applications for reissues of each patent were filed, reissues were granted, the earlier patent was sustained in this court (Maitland v. Archer & Pancoast Co., 72 Fed. 660), and its decision was sustained in the court of appeals for this circuit (29 C. C. A. 607, 86 Fed. 124). The object of the invention described in the reissued patent now in suit was to produce a combined gas and electric light fixture, which should in all material respects have the appearance of the usual gas fixture with radial arms, but in which a part of the projecting arms should be devoted to gas and a part should be exclusively used for electric light. The invention was safe, useful, and successful, while each device of the prior art shown in the record, which attempted to be a combined gas and electric fixture, was a failure. The Stieringer patent was not anticipated, and infringement of its claims 1, 5, and 6 is not denied. The defendant's fixtures are, in material respects, a copy of the patented fixture.

The question of importance is that of patentable invention in view of Stieringer's prior patent, reissue No. 11,478, and this question. compels a restatement of what the patentee had done, as shown in the

earlier patent. The demand for that invention, the gist of it, and its utility were described in the opinion of the court of appeals (29 C. C. A. 607, 86 Fed. 124) as follows:

"Shortly before the year 1881 the means by which Edison's incandescent electric lamp could be introduced into houses and buildings which had theretofore been lighted by gas, and which were supplied with gas fixtures, began to be actively discussed by electricians and mechanics. The public was accustomed to gas fixtures. Much money had been expended in developing graceful and ornamental styles. The fixtures to be used exclusively for the new lamp were undeveloped, and those who proposed to try electricity as an illuminating agent desired to use the class of fixtures to which they were accustomed. The objection to such use was that, if the gas-pipe system was employed as a support for the two electrical wires, the gas-pipe outlet, which connected with the ground, would be a source of constant danger to the safety of the electrical appliances and of the house itself. Underwriters against fire became alarmed, and finally demanded that, where incandescent lights were attached to a gas fixture, or a metallic fixture having a ground connection, the wires should be separated 21⁄2 inches from each other, or should be separated from the metal of the fixtures by some solid insulation. The gist of the invention consisted in making use of metallic gas fixtures by introducing insulated conducting wires concealed within the fixtures, and capable of carrying the electric current to and from the electric lamps; in supporting the fixtures by the gas outlets or gas pipes; and in placing a joint having metallic couplings and an intermediate section of insulating material between the upper end of each fixture and the end of the gas pipe, so as to secure complete insulation of the fixture from the grounded piping of the house. The utility of the invention is acknowledged by the universality of its use without special modification. The gas metallic terminals furnish a strong and convenient support, the insulation avoids the danger which would otherwise result from the use of grounded metallic piping, and the concealed wires are neither unsightly nor liable to abrasion."

What Stieringer did was to make a safe and successful electric light fixture from a gas fixture with radial arms, and unaltered in its external appearance. What he successfully undertook in the new invention was to alter this new fixture so that a part of the arms could be used for gas and a part for electric light; and the way in which he accomplished the desired result was, speaking generally, by preventing the flow of gas into those radial arms which were to be used for electric light, by making openings into those arms for the wires which carry the current to the electric lamp arms, and introducing the two main wires into the space between the ordinary iron gas pendant and the ornamental shell which surrounds it. In the complainant's brief a more particular description is given, which is condensed as follows: In the ordinary gas fixture this central iron pendant is screwed at its bottom into a cast-iron distributing body, from which the gas arms project radially. The distributing body is a small cast-iron box, having a hole in its top for receiving the central gas pipe, and holes in the sides for receiving the arms. The central gas pipe, the distributing body, and the arms are the skele ton of the fixture. This skeleton is surrounded by an ornamental shell. The radial gas arms are usually not so surrounded, being generally made of polished brass. Taking this structure, Stieringer closed the gas passage between the gas distributing body and part of the radial arms, and made openings into these radial arms outside of the distributing body, but within the space formed by the ornamental shell. The electric mps are mounted upon these radial

arms, which are cut off from the gas passageway, while the gas burners are carried by the radial arms which remain open to that passageway. For supplying current to the electric lamps, two main wires are introduced into the space between the ornamental shell and the central gas pipe. They enter that space below the upper end of the central gas pipe, but above an adjustable canopy. Openings are made in the top of the ornamental piping to permit the passing of the wires into this space. These main wires pass down alongside of the central gas pipe, but inside of the ornamental piping, and enter the space between the gas distributing body and the ornamental shell. The electric lamp arms are provided each with two wires, which pass from the electric lamp socket through that arm into the space around the distributing body, where the two arm wires are connected with the two main wires.

It will thus be seen that, having utilized the old gas fixture so as to make it safe for electric light purposes, the patentee, in his second invention, permitted a part of the arms to be used for gas purposes, and sent the electric current through main wires placed in the space between the central pendant and the external shell. This use of that space was not novel, but had been customary in devices for electrically lighting gas fixtures. If one places himself at the point of time prior to the earlier invention, there is, as it seems to me, little difficulty in seeing inventive genius in the entire result of a combined gas and electric light fixture; but when the practical difficulties in the way of safety had been surmounted, and an electric light fixture had been obtained from a gas fixture, I see no inventive genius in permitting the new electric fixture to accomplish in part its original object,-that of furnishing light by gas. The accomplishment of the result would have been difficult for a mechanic of another class, but to the mechanical electrician the important feature of the invention, which was to place the main wires in the vacant space between the pendant and the shell, and connect them with the wires in the electrical radial arms, was a simple matter. I therefore think that Stieringer's improvement upon his first invention, although novel, useful, and still utilized by persons who desire to have in their houses means for the immediate use of either illuminant, has not the element of patentable invention. The bill is dismissed, with costs. Richard N. Dyer, for appellant.

Henry M. Brigham, for appellee.

Before WALLACE and LACOMBE, Circuit Judges.

PER CURIAM. Decree of circuit court affirmed, with costs, on opinion below.

(106 Fed. 989.)

ROTHSCHILD et al. v. UNITED STATES.

(Circuit Court of Appeals, Second Circuit. February 27, 1901.)

No. 74.

DUTY ON WRAPPER TOBACCO-PERCENTAGE SYSTEM.

Except for the purpose of imposing a penalty for importing a bale containing more than 15 per cent. of wrapper and less than 85 per cent. of filler, any percentage system is abandoned in the tariff act of 1897; and all wrapper tobacco, wherever found, and in whatever amount, is subject to the duty of $1.85 per pound, provided in paragraph 213 of said act.

Appeal from the Circuit Court of the United States for the Southern District of New York.

Appeal from a judgment of the circuit court, which sustained the decision of the collector of the port of New York and reversed the decision of the board of general appraisers, touching the duty on certain wrapper tobacco found packed in bales of filler tobacco, but not exceeding 5 per cent. of each bale.

The opinion filed below, and here reprinted from 87 Fed. 798, was in full as follows:

LACOMBE, Circuit Judge. Amid the awkward, tortuous, and obscure phraseology of paragraph 246 of the act of 1883, one thing was manifest, namely, that, in determining whether any particular leaf tobacco should pay a lower or a higher rate, it would be necessary to calculate a specified percentage of something. It became absolutely necessary, in order to apply the rule prescribed in the paragraph, to determine upon what base or on what unit such percentage should be calculated. In Falk v. Robertson, 137 U. S. 225, 11 Sup. Ct. 41, the court had to deal with an abnormal, if not a bogus, bale; and it is not surprising that the language used in the opinion was not practically of much use when normal commercial bales came under consideration. The necessity of finding a base number or unit available for such cases could not be overlooked. U. S. v. Blumlein, 5 C. C. A. 142, 55 Fed. 383. Such a unit was declared to be the bale, and it is understood that the conclusion upon that point reached in that case has not since been questioned. Erhardt v. Schroeder, 155 U. S. 124, 15 Sup. Ct. 45; U. S. v. Rosenwald, 14 C. C. A. 399, 67 Fed. 323. The McKinley tariff of 1890, however, concededly abandoned the practice of taxing according to percentages. Under that act it was wholly unnecessary to fix upon any base number or unit at all. Quite possibly, the percentage method was restored by the Wilson tariff of 1894, indirectly by the use of the words "commercially known"; but there seems much force in the suggestion that, when those words were dropped out of the Dingley tariff of 1897, the percentage system dropped with them. Of course, if the percentage system were abandoned, the necessity of determining a unit or base number ceased also, and the decisions in the cases cited would be no longer instructive.