Dane vs. Illinois Mnfg. Co.

tom instead of the top of the guard. The mechanism by which he accomplished this result was a flange, or ring, extending outwardly from the lower edge of the top, or dome, of the lantern, into which the top of the guard rods was securely fastened, the lower ends of the guard rods were fastened into an annular ring or plate, large enough to allow the globe to pass freely through it. This lower guard ring was fastened by spring catches and lips to a flange projecting outwardly from the top of the base of the lantern, as is shown in the model.

It seems to me that we have in this device the idea of a removable globe fully worked out and applied, and it does not appear that any advantage is gained by taking the globe out through the top, instead of the bottom, of the guard, and the elements of the combination by which the same result is obtained, are the same in both lanterns. The parts of the Waters' lantern are transposed or changed by Westlake from the bottom to the top of the guard, and there perform the same, and no additional functions.

The band D, with its flange C, in Waters' combination is inverted by Westlake, and becomes the disc g in his combination, while the annular plate c of Waters' lantern is carried from the bottom to the top of the guard by Westlake, and there becomes Westlake's ring b. The spring catches are the same in both lanterns and fill the same office.

So, by simply inverting Waters' guard, you have exactly Westlake's combination, and you have only to fasten the springs in the bottom of the lantern to the inverted Waters' band D, and you have precisely Westlake's combination. They are built right up of the same parts the Waters lantern complete without changing the functions of a single part, or doing anything except to take the globe from the top instead of the bottom of the guard.

It is needless to cite authorities to show that the mere change of the location of the parts of a mechanism, so long as no different or additional function is performed, does not make

Dane vs. Illinois Mnfg. Co.

the mechanism patentable. Westlake cannot take Waters' mechanism, forming a loose globe lantern, and make it his own by simply re-locating the effective parts, so long as no different result is gained, and certainly there seems to me no substantial change in the results to take the globe out of the top instead of the bottom of a lantern guard.

The idea was to take the globe readily from the guard and lantern for the purpose of cleaning it, or replacing it if broken.

If Waters, by the specifications of his patent of July 17, 1855, had taught the whole world how to make a lantern from which the globe could be readily removed through the lower ring of the guard, with the whole mechanism made to operate together as appears to that end, he, in effect, had taught Westlake how to remove the globe from the top of the guard, because it required no invention to make the change. Waters taught everybody how the space between the enlarged ring b, as Westlake calls it, and the body of the lantern should be filled up by the disc g, and how the lantern should be put together in sections, as it were, and the place where the attachment should be accomplished, whether at the top or the bottom of the guard, was, after that, a mere matter of mechanical convenience, or artistic taste, in the construction of the lan

tern.

It appears to me there can be no doubt that Waters, in his lantern, has anticipated all that Westlake now claims in his patent-his re-issued patent.

It is true, as was suggested in the argument, that the disc g in Westlake's patent performs the double function of a reflector, as well as a means of attaching the guard to the dome; but a disc for a reflector in that place, as the proof shows, was old, and so I do not think the suggestion aids the complainants, as if it proves anything, it is that Westlake did not invent the disc, but only put the spring catches upon it wherewith to fasten the guard to the dome or disc.

I will only take time to allude to one other device, shown in the evidence as prior in point of time and foreshadowing, if

Dane vs. Illinois Mnfg. Co.

it did not accomplish, the same result as Westlake's, and that is Max Miller's patent, obtained August 17th, 1858.

This lantern has a loose globe, removable through the top guard ring, but the disc g or c does not appear in the combination; the same result is accomplished without the disc.

It is true it was urged that Miller's globe is a plain cylinder, and that his device would not allow the use of a globe shaped as Westlake's was; that is, bulging in the middle and contracted at the top. But he made his contraction by a cone above the globe, so as to accomplish the same result.

Finding, then, from the testimony, that Westlake's alleged invention had been successfully accomplished by the prior invention of Waters, it is hardly necessary to discuss the question of infringement.

I will, however, say that his disc, at the top of the globe, was old for the purpose of a reflector, and Waters having used a flange turned outwardly from the bottom of his dome band for the purpose of fastening his guard rods into it, it seems to me Irwin had a right to use it for for the purpose of hing ing the top ring of the guard of his lantern thereto, thereby making a basket, in which the globe was securely held, and obtaining a result different from that accomplished by Westlake and without the use of any part of the combination to which Westlake had an exclusive right. Irwin's fastenings are not the same as Westlake's-one uses two spring catches, and the other a hinge and spring catch, whereby Irwin makes a basket of his guard in which the globe is safely held. This bill must, therefore, stand dismissed with costs.

The suit of the same complainants against the Chicago Manufacturing Company on the same patent, and involving substantially the same facts, was heard at the same time and same order entered. [Reporter.

Dane vs. Chicago Mnfg. Co

DANE vs. CHICAGO MANUFACTURING COMPANY.

CIRCUIT COURT-NORTHERN DISTRICT OF ILLINOIS-NOVEMBER, 1872.

1. The date of an invention must be taken to be when the application was filed, if it does not appear when the model and drawings were made which show it to have been perfected, although the patentee had previously commenced experiments upon it.

2. Lamps have been well known with chimneys surrounding the flame, and thus promoting combustion, and with deflectors which closed the base of the chimney, and directed the air admitted through apertures upon the flame; and there can be no valid monopoly for enlarging the chimney, so as to form a globe and the deflector so as to close the increased aperture at its base, although the glass is thereby removed further from the flame and protected from the heat.

3. How far the globe shall be enlarged, and the chimney removed from the flame, is a question of judgment, and involves no invention.

Bill for an accounting and to restrain alleged infringement of the Gersten patent for "lantern deflector."

The bill of complainant sets forth that on the 25th of January, 1859, a patent was duly issued from the United States patent office to Conrad Gersten for an improvement in lanterns; that said Gersten afterwards duly assigned the said patent to the complainants, Dane & Westlake; that after receiving said assignment, said Dane & Westlake surrendered said letters patent, and made application for two new patents to be issued for the same invention, with corrected descriptions and specifications; and that on the 16th day of September, 1867, new letters patent, each for a distinct and separate part of the thing patented as aforesaid, and each for some material part of the

Dane vs. Chicago Mnfg. Co.

original invention, were duly issued to said Dane & Westlake, as assignees of said Gersten, one part of which re-issued letters patent was numbered 2,765, and that a legal, corrected description of that part of the original improvement contained in said re-issued patent 2,765, was given in the words of said Dane & Westlake, annexed to the said part of the said re-issued patent; that afterwards an equal, undivided interest in said re-issued letters patent was duly assigned by the said Dane & Westlake to the complainant, John P. Covert; that the defendant was making and vending lanterns containing substantially the improvement and invention described in, and secured to, the said complainant, by the said re-issued letters patent 2,765.

Defendant denied the validity of the said re-issued letters patent, and also any infringement thereof.

West & Bond, for complainants.

L. L. Coburn, for defendant.

BLODGETT, J.: The main point in regard to the validity of the patent is made upon the question of novelty; and on that question, the state of the art at the time, and before the time of Gersten's alleged invention, has been very fully discussed and examined by counsel.

The feature in the Gersten patent, of which the infringement is alleged, is the plate or deflector, q.

It appears from Gersten's specifications that the general scope and purpose of his invention was a lantern in which kerosene or carbon oils could be used for illuminating purposes.

To accomplish this he constructed a burner, the main features of which were, first, a cylindrical metallic ring or band, setting upon the top of the oil-cup, and divided into two compartments by a horizontal plate m, filling the entire ring. The lower apartment was termed a "cooling chamber," and was intended to prevent the heating of the oil in the oil cup.