two claims of re-issue 8,598 must be the tubes, F and F, placed within the globe, where they can and do receive a supply of heated air, so that the ascensive current of heated air forms a part of the supply for the tubes, and also that the device or plate, I, which surmounts the globe, must both inject and eject air. In the defendant's lantern the injecting devices are directly over the tubes, and no air is injected from the opening over the globe.

There has been no adjudication by a court upon this question of construction. If it should be held that the fresh-air conduits must necessarily be within the globe so as also to receive heated air, or if the injecting devices must necessarily surmount the globe, then there is no infringement. It seems to me that the litigation in this case, taken in connection with the opinion in Irwin v. McRoberts, goes very far to answer the requirement of a deliberate examination and a decision by a court. Irwin and his co-owners engaged in an earnest and thoroughly-contested litigation with the Buffalo company upon the subject of these patents. The latter had the advantage of the skill and knowledge of the senior expert of the present defendant. It came to the conclusion to purchase peace and the right to manufacture under the Irwin patents. With a great sum it obtained its freedom. The settlement of the litigation and the acknowledgment of infringement by the defendant, was deliberately made under the advice of counsel, and after earnest attempts at compromise. The payment of $210,000 was a confession of inability to make a successful contest. This litigation, coupled with the opinion of Judge Blodgett in the case of Irwin v. McRoberts, where he was "very much impressed with the conviction that the defendant's lantern infringes the claim of the complainant's patents as they are re-issued," and in the opinion in Irwin v. Dane upon the broad character of the invention, brings the question of infringement as near to an adjudication as it is practicable without having an opinion by a court upon the precise question in dispute. I am satisfied that, by virtue of all the recited decisions and the circumstances of this case, the question has been so far settled that I ought not to refuse an injunction upon the ground of non-adjudication.

The defendant's experts, starting apparently upon the premise that the Irwin patents are only improvements upon the old English and French patents, properly come to the conclusion that they should be narrowly construed, and should be confined to the specific forms of devices which are respectfully shown. Without going back to the v.8,no.5-21

earlier Irwin inventions, I think that in his patent 89,770 he was the predecessor and not a follower of others, and while, for the purposes of this motion, it is held to be true that his claims in the original patent were limited to the particular form of the devices described in the specification; yet that, by re-issue 8,595, he properly covered broader territory.

"If one inventor precedes all the rest, and strikes out something which includes and underlies all that they produce, he acquires a monopoly, and subjects them to tribute." Sayles v. Ry. Co. 97 U. S. 554.

I have not deemed it expedient to examine the claims of re-issue No. 8,611 upon the question of infringement. The plaintiffs make out a clear case of very serious injury in case a provisional injunction should not be granted.

The motion for an injunction, pendente lite, against the infringement of the first and second claims of re-issued patent No. 8,598 by the manufacture or sale of lanterns Nos. 13 or 14, or lanterns containing a combination of devices equivalent thereto, is granted.

GOTTFRIED V. CONRAD SEIPP BREWING CO.

(Circuit Court, N. D. Illinois. June 22, 1881.)

1. PATENT No. 42,580-MODE OF PITCHING BARRELS-HOT AIR-KRAUSCH MACHINE-SUPERHEATED STEAM-INFRINGEMENT.

Letters patent No. 42,580, g anted May 3, 1864, to J. F. Holbeck and Matthew Gottfried, for mode of pitching barrels, operating by driving a blast of hot air, by means of a blower, thr ugh a bed of ignited coals into a pipe, whence it is conducted into the barrel to be pitched, held, not infringed by the Krausch machine, which opera s by the introduction of superheated steam into the casks to be pitched.

2. PATENT COVERING A COMBINATION DEVICE AS AN ENTIRETY

WORN-OUT PARTS-INFRINGMENT.

REPLACING

Where a patent covers as an entirety a machine composed of several separate and distinct parts, the purchaser of such machine from the patentee will not infringe by replacing such parts as wear out as often as is necessary, so long as the identity of the machine is retained. If the patent is for a separate and distinct element of the combination, a purchaser will infringe by replacing such element.

Banning & Banning, for complainants.

West & Bond, for defendant.

BLODGETT, D. J. This is a bill to recover damages for the alleged infringement of a patent issued on the third of May, 1864, to the complainants for an improvement in pitching the inside of barrels.

Two defences are set up: First, that the patent is void for want of novelty; and, second, that the defendant does not infringe. This patent has been before this court and the United States circuit court for the eastern district of Wisconsin, and nearly all the testimony in this record, on the question of novelty, was fully discussed and passed upon in those cases. I do not propose to re-examine the testimony bearing upon the question of novelty, as this case must, in my opinion, be disposed of upon the question of infringement; if the defendant does not infringe the complainants' patent, there is no occasion for discussing the question of novelty. The defendant uses one machine constructed substantially after the specifications of the complainant's patent, but insists that it was purchased of the complainant Holbeck, and is used under a license from him. It is admitted that a machine was purchased by the defendant from Holbeck, but the complainants deny that this is the machine so purchased, because it is claimed that the essential working parts have been worn out and replaced with new parts; that the blower, pipes, and body of the furnace are renewals, and that the only parts of the old machine which remain are the ash-pit and top of the furnace.

From the functions of the different parts of this machine it is obvious that some of them will wear out much faster than others, and I think there can be no doubt that the defendant has the right to replace those parts as often as necessary, so long as the identity of the machine is retained. The proof in this case shows, to my satisfaction, that as the grates, pipes, and blowers were worn out, they were renewed, and therefore the identity of the machine is retained. If, for instance, this patent had been upon a peculiar grate, and there had been no patent upon the other parts of the machine, when the grate was worn out the defendant would have no right to put in another like it, because the grate was covered by the patent; but if the grate is only a part of an entire combination, I think it has a right to replace the worn-out parts, and it cannot be said to be a different machine. Chaffee v. The Boston Belting Co. 22 How. 217; Wilson v. Simpson, 9 How. 109-124.

It is also admitted that the defendant uses what is known in the trade as a "Krausch machine." This machine is constructed upon what seems to me a substantially different principle from that of the complainants. The complainants' invention operates by driving a blast of air by means of a blower through a bed of ignited coals into

a chamber, from which it is conducted by a pipe into the barrel to be pitched, whereby the inside of the barrel is heated, so that the melted. pitch can be quickly and evenly spread over the whole inside.

It is claimed by the complainants that the essential principle involved in their patent is the burning out of the oxygen from the air driven by the blast through the fire, so that, although it passes into the cask heated to a very high degree, it will not burn the inside of the cask; in other words, that it involves the process of heating barrels for pitching by means of a hot blast which is deprived of its oxygen before use, and thus rendered incapable of injurious burning. I do not consider it necessary to discuss this question, for, in my view, the Krausch machine operates upon a different principle. It consists of a furnace or fire-box, containing a coil of steam-pipes so arranged that the steam passing through the pipes will be superheated. This superheated steam is let into the barrels, and heats the inside so as to melt the pitch, so that it can be evenly distributed or coated over the inside. The fire in the fire-box is stimulated or kept going by a steam exhaust, which passes out of the top of the box so as to induce a blast through the fire, and the pipe used for letting the steam into the large casts is so arranged that it passes through a larger pipe from the upper part of the fire-box over the grate, and which might possibly, by reason of the draft occasioned by the jet of steam, carry into the cask some of the burnt air and products of combustion which are contained in the fire-box above the fire. But it is obvious that this burnt air would be only a very small part of the means by which the heating is accomplished, and is not the main process by which the heating is secured. I think, therefore, the defendant does not infringe complainants' patent by the use of the Krausch machine.

The complainants' bill will therefore be dismissed, on the ground that no infringement of their patent is shown.

WATKINS v. CITY OF CINCINNATI.

(Circuit Court, S. D. Ohio. August 10, 1881.)

1. PATENT-VAPOR BURNERS-RE-ISSUED LETTERS PATENT No. 7,706.

Re-issued letters patent No. 7,706, being a re-issue of patent granted Louis Fischer, March 30, 1869, for improvement in vapor burners, held, valid, and infringed by burners known as "Globe burner" and "Champion burner," 2. SAME.

The Fischer patent held to cover vapor burners having a tube or passage arranged to conduct a portion of the oxygenized vapor from the mixing or gas chamber to a point below where the commixture takes place, in order to heat fluid in the lower part of the chamber.

3. SAME.

Various prior patents distinguished from the Fischer, and held not to embody the invention described and claimed in it.

In Equity. Bill for injunction and account. Final hearing on pleadings and proofs.

The Fischer patent is described in the opinion.

The "Champion burner," used by defendant, had, instead of the external return tube to convey the oxygenized gas back to heat the generating chamber, shown in the Fischer patent, a sleeve surrounding the mixing chamber, into which an opening from the mixing chamber, just below the tip of the burner, allowed a portion of the oxygenized gas to pass, while openings at the bottom of this sleeve, about on a level with the bottom of the mixing chamber, discharged the gas, forming a jet which served to heat and vaporize the oil below.

The "Globe burner" had a similarly-arranged sleeve in the form of a globe, the gas passing into the top of this globe in the same way as in the "Champion," and being discharged through perforations in this globe at a point below where they entered, but slightly above the bottom of the mixing chamber, producing a jet serving to heat the generating chamber beneath.

Parkinson & Parkinson, for complainant.
Paxton & Warrington, for defendant.

MATTHEWS, Justice. This is a bill in equity, complaining of an infringement of a patent for "improvement in vapor burners," originally granted to Louis Fischer, March 3, 1869, subsequently assigned to complainant, and re-issued to him May 29, 1877, as re-issue No. 7,706. The bill prays for an injunction and account. The design of the patent is:

*Reported by J. C. Harper, Esq., of the Cincinnati bar.