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hole in the outlet pipe at the top, and within, the coagulation chamber. Thus the gases do not pass through the body of water in the chamber, as is the case in plaintiffs' apparatus. The salts coagulate any organic matter in the water, and owing to the quiescent state of the water the heavier parts of this material fall as a sediment to the bottom of the chamber, where it is removed periodically through an outlet controlled valve into a waste pipe. This avoids fouling and clogging of the filter, making it unnecessary to continually clean it, as was necessary in the apparatus using the ozoning pipe or chamber.

"In plaintiffs' patent 943,188, the claims relied on are 1, 2, 6, 7 and 8, and each of these includes as an indispensable part of the apparatus, means for periodically reversing the current; and in addition, claim 8 requires a chamber through which the liquid is passed in such manner that the entrained free oxygen is given time to act on the impurities of the liquid. I have heretofore considered the construction of the defendants' coagulation chamber as compared with the 'ozoning chamber of the plaintiffs' apparatus, and the action of the gases in those chambers respectively. Neither of these features is included in defendants' apparatus. The evidence clearly shows in harmony with the wording of the patent, that the invention of the patents in suit is necessarily addressed solely to the use of the direct current, and it is direct current only that requires a reversing mechanism to carry out the purpose and intent of this patent, in order to keep the plates clean. An alternating current when used, requires no such mechanism. And although exceedingly inefficient, such current is used in the defendants' apparatus at the Western Theological Seminary. The evidence shows that in installations requiring a large machine, where alternating current only is available, the defendants supply their customers as a part of the equipment, a motor generator, set to convert the alternating current into a direct current. They also supply a hand reversing switch, such as is shown in Fig. 2 of the Lemp & Koedding patent, which antedates all the Hartman patents involved and is owned and controlled by the defendants. If the hand reversing switch is used in accordance with directions furnished, the switch would be thrown at definite periods of time, having no reference to the amount of the liquid flow, as, for instance, once every day or every other day, causing the current to flow successively in opposite directions. But clearly, this operation does not and cannot assure substantially equal quantities of current flow in opposite directions, as on one day much current may be used and on the next day little or perhaps none at all. I therefore conclude that the claims of the patent in question are definitely limited to a combination requiring an automatic current reversing mechanism within the apparatus as a part thereof, and which current reversing mechanism is of such construction and operation as to maintain the current in both directions for substantially equal periods of time during the flow of the liquid, thereby passing substantially equal quantities of current in each direction through the impure liquid.' That otherwise, these claims would be invalid, in view of the Lemp & Koedding patent showing both a hand switch for occasional reversing of current, and an automatic current reversing device; and in view of the patent to Boucher, No. 760.302, showing an automatic current reversing device, which is an embodiment of the invention of Hartman in the patent in question, with the exception of the provision of a definite means whereby the current may be maintained to flow in both directions for substantially equal periods of time during the liquid flow. Considering the fact that the defendants' apparatus in suit uses an alternating current, which requires no current reverser of any kind, and in view of the prior art and the limitations which that art imposes, I do not think any of the claims of patent No. 913,188 are infringed by the defendants' device.

"As to the second principal feature of plaintiffs' invention, namely, the delayed action in the opening of the electric switch in order to prolong the electrical treatment of the water after the flow is cut off, involved in patents Nos. 951,311, 951,312, and 951,313, while patent 951,311 relates to a method or process of purifying water, the same necessary element, namely, the delayed action of the electrical switch, is a requirement of the claims relied on in all three of said patents. All of the eight claims of 951,311 depend for their validity upon this specified feature and requirement of making and breaking the

electric circuit when starting and stopping the flow of liquid, and in a manper to maintain the current flow appreciably longer than the liquid flow.

"And so claims 1 to 8 inclusive, relied on in 951,313, are limited to the feature of retarding the breaking of the circuit until after the liquid flow ceases. The special means employed for carrying out that operation are covered specifically in claims 4, 6, 15 and 16, relied on in patent 951,312. This last named patent is for a control valve mechanism, comprising a valve and electric switch. The particular feature of construction for accomplishing the delayed action therein described, is the provision of a piston and a valve as separate members, which are connected to each other in such manner as to cause the valve to be set before the piston has completed its downward stroke' and has opened the electric circuit. The limitations of these claims by the Patent Oflice were accepted by the patentee in order to secure the patent; and the owner of the patents is estopped from setting up any other construction that would not include such limitations. Hubbell v. United States, 179 U. S. 77, 21 Sup. Ct. 24, 45 L. Ed. 95. Claims 4, 6, 16 require a valve and a movable member or piston which are separate and distinct parts and have a connection between them for the purpose of obtaining the long delay in the opening of the switch, after the liquid flow ceases, as contemplated by the patent; while claim 15 is likewise limited to the feature of a valve 'and connections whereby said circuit controller maintains the circuit closed until after the valve is closed.' Thus it will be seen that an essential of this patent is a separate valve and a separate plunger and, as expressed in the claims involved, 'connections whereby the delayed action is made possible.' The defendants' apparatus does not have a separate valve and plunger, and has no provision for a delayed action or for a retarded movement, or means operative after the current flow ceases, for breaking the circuit. Defendants employ an electrical snap switch, which opens and closes as quickly as is practicable for a mechanical device of this character to operate, and is connected directly with the single piston or plunger of the valve mechanism, and commences to operate instantly when the faucet is turned off. A demonstration in open Court of the operation of the two devices showed that there was a time delay of about thirty seconds between the closing of the valve to cut off the water, and the opening of the electric switch to break the electrical cir(uit, in the plaintiffs' device; while in the defendants' device this delay was less than one second, and there appeared to be only the time element involved in the normal, mechanical movement of a snap switch.

“It is well established that it is not enough to support the charge of infringement that a defendant has accomplished the same purpose as the patentee, or that he has used some of the elements recited in the claims of the patent. He must have accomplished the same purpose by substantially the same means, and each element of the claim must be represented in the infringing device, performing substantially the same office in the same relationship. Under all the facts of the case, I think plaintiffs have failed to establish their charge of infringement, and the bill must therefore be dismissed at the plaintiffs' cost.”

It will be observed from the opinion of the learned trial judge as well as from a careful reading of the claims of the patents that the only matters here seriously in dispute are the method for automatically and periodically reversing the electric current after a predetermined quantity of water has passed and the method and means for maintaining the flow of the current appreciably longer than the flow of the water. These constitute the essence of the several inventions; all other features are subsidiary and of minor importance.

The infringement charged to the defendants is twofold: First, the use of an alternating current, that is, a current that reverses from the negative to the positive electrode one hundred and twenty times a second; and, second, the use of a hand manipulated switch in an ap

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paratus in which direct current is employed. In the first method practiced by the defendants, current reversal is effected by the very character of current used, and, in the second, it is effected by a hand applied mechanism which is controlled not by the quantity of water that passes, but by the memory and hand of a human operator. Current reversal automatically controlled by water volume is the invention, and as the defendants do not employ this control, we think they do not infringe.

With respect to the delay in opening the electric switch and breaking the current after the waterflow has ceased, disclosed in the remaining method and apparatus patents, the patentee very clearly claims as an element of his invention that during this period of time electrolytic action is continued on the arrested water. “The method of purifying liquids consisting in causing the liquid to flow between electrodes containing aluminum and there subjecting the same to the action of electric current and breaking the electric current when starting and stopping the flow of liquid and in a manner to maintain the current flow appreciably longer than the liquid flow" is the language of a typical claim. In a word, the lag is, as appears by the specification, purposely made and by appropriate mechanism is given a function, measured by seconds (15 to 27). By this function the electrolytic action on the water is allowed to continue after the flow of water has stopped, so that when the flow is resumed, the water which initially leaves the pipe will have been previously purified. In the defendants' apparatus, between the shutting off of the water and the breaking of the current, there is a delay, a lapse of time, or a lag, similarly measured by seconds, but reduced in number from 15 to 27 in the plaintiffs' apparatus to from 1 to 3 in the defendants.' No function is claimed for this delay or lag, so far as we have been shown, and none is performed during this very brief period, so far as we can conjecture from the teachings of the art set out in the briefs and elaborated in the argument. This delay, it is testified

-and it so appears to us—is a mere unintentional and functionless incident which is as nearly instantaneous as mechanism involving the shutting off of the current by a snap switch will permit. Were the break in the current actually instantaneous with the break in the waterflow, there would be no lag, and hence no infringement. the lag of one second, or of one and one-half seconds, in the defendants' apparatus permits nothing to be done different from that which would be done in an instantaneous breaking of the current, then the lag in the defendants' apparatus is functionless, and, manifestly, the defendants do not infringe. As the time delay in the defendants' apparatus appears to lack a duration that suggests any function, and being unable readily to find in the record evidence bearing on the presence or absence of a function in the lag of the defendants' mechanism similar to the function in the lag of the method and apparatus of the patents in suit, we asked counsel to file supplemental briefs on the subject, for, manifestly, if no function was shown, no infringement was proved. Supplemental briefs have been filed, and it is very plain, not only from what they show and fail to show, but from our

own very careful search of the record, that there is in the case no evidence indicating even remotely that in the lag of the defendants' apparatus there is the function of the lag in the plaintiffs', nor is there found in the lag of the defendants' apparatus any element of the theory involved in the lag of the invention of the patents. For lack of testimony on the subject, if for no other reason, we find that the defendants have not infringed.

The decree below is affirmed.

BUFFALO FORGE CO. v. CITY OF BUFFALO et al.

(Circuit Court of Appeals, Second Circuit.

December 11, 1918.)

No. 54,

1. PATENTS 328-ANTICIPATION OR APPROXIMATION-HEATING AND Hu

MIDIFYING AIR.

Neither anticipation of, nor close approximation to, plaintiff's method of heating and humidifying air, covered by Carrier patent, No. 854,270,

claims 1, 3, 5, 6, and 7, held discoverable in the prior art. 2. PATENTS 119_CLAIMS COVERING METHOD AND APPARATUS-DENIAL IN

PART.

If Patent Office had granted claims both for a method of heating and humidifying air and apparatus to conduct the method, that fact would not have vitiated the patent, and, conversely, no more does the fact that

it refused so to do, in the same patent at all events. 3. PATENTS 328—METHOD OF HEATING AND HUMIDIFYING AIR-INFRINGE

MENT.

Carrier patent, No. 854,270, covering a method of heating and humidifying air, held infringed by the heating and humidifying apparatus of

schools erected by defendant company in defendant city. 4. PATENTS 157(2)—CONSTRUCTION—FIRST CO-ORDINATION OF PROCESS.

Where an inventor was the first to co-ordinate and disclose a series of operations constituting a method to heat and humidify air, and air moistened by such method was a successful novelty, his patent is entitled

to benevolent construction. 5. PATENTS Om 328—MECHANICAL PROCESS-METHOD OF HEATING AND HUMID

IFYING AIR.

Method of heating and humidifying air covered by Carrier patent, No. 874,270, claims 1, 3, 5, 6, and 7, a process involving only mechanical and not chemical operations, held a patentable and meritorious mechanical

process. 6. PATENTS Cm7–PROCESSES.

That the means, and the only means, of applying the process, are strictly mechanical, is of no moment, so far as patentability of the process is concerned; but if the process, when distinguished from the means of performing it, is new, useful, and intellectually rises to the dignity of invention, it is patentable, if it falls within the meaning of the word "art" as used in the statute.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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

Suit by the Buffalo Forge Company against the City of Buffalo and Thomas & Smith, Incorporated. From decree for complainant, defendants appeal. Affirmed.

Action is on claims 1, 3, 5, 6, and 7 of patent to Willis M. Carrier No. 854,270, granted May 21, 1907, for a “method of heating and humidifying air."

The patentee's stated purpose is to automatically regulate the temperature and humidity of fresh air especially in textile mills, and to do so "regardless of external atmospheric conditions within limits," by introducing "into the air, water at properly regulated temperatures below the boiling point."

The specification, which remained substantially unchanged through Patent Office criticism, consists of two easily separable parts: (1) A description in general terms of the process; and (2) an explanation of how the apparatus embodying the process and shown in the patent drawings should and would function. On this disclosure Carrier originally rested both method and apparatus claims. The latter he was ordered to make the subject of a separate application. This patent accordingly issued on the method claims only, and whether Carrier ever sought or obtained a patent on his disclosed apparatus is not shown by this record.

The patentee's description of his process is as follows:

"In carrying out the method forming the subject-matter of this invention, warm or hot water at a temperature above that of the air and below the boiling point is intimately mixed with a current of air, preferably by discharging the water into the air in a very fine spray or mist. The water raises the temperature of the air, which will therefore vaporize and assimilate an amount of the water depending upon the rise in temperature of the air so that its humidity is increased. A thermostat subject to the influence of the heated and humidified air controls means in the water supply system, whereby the water is maintained at the proper temperature to raise the temperature of the air to the degree required for the air to become saturated with an amount of vapor sufficient to give the desired absolute humidity to the air when raised to the temperature at which it is to be utilized. The free water is separated from the air current and is preferably collected, reheated and returned in the form of spray to the air, the same water with such additional amount as is necessary to maintain a constant volume of water being thus repeatedly circulated and used. Incidentally the air is thoroughly washed and cleansed, as the water sprayed into the air collects the solid particles of dust and foreign matter, which adhere to the free particles of water and are separated with the latter from the air."

Of the claims in suit the first is most general, and is as follows:

"1. The herein described method of humidifying air, consisting in causing an intimate contact of the air with water heated to a temperature above that of the air and below the boiling point, and automatically regulating the temperature of the water to maintain a practically constant temperature of the air, substantially as set forth."

The infringement alleged is embodied in the humidifying apparatus which is a part of the heating plants of two public schools in the city of Buffalo. These plants having been supplied to the city by the intervening defendants, they have assumed the burden of defense.

The District Court after overruling several defenses (some not now insisted on) found the patent valid and infringed; whereupon defendants took this appeal, urging in this court:

(1) Claims in suit are invalid on patents of the prior art; but

(2) If invention is disclosed it must reside only in the apparatus, which is not covered by this patent; but further

(3) Assuming validity, infringement is not proved; but, through all these contentions runs appellants' principal point, viz.:

(4) Carrier's method or process is nothing more than a description of the

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