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buckets, valves for said steam cylinders to control the admission of steam thereto and the movements of the pistons therein, a valve-driving engine connected with and to positively move said valves, a valve mechanism for said valve-driving engine, a rocking beam pivoted at its middle and connected at its ends with and to be rocked by said piston-rods, and a connection between said beam and valve mechanism whereby the movements of the valve-driving engine are positively controlled by the vibration of the beam and the movements of the main steam valves for the steam cylinders by the valve-driving engine, substantially as described.

"2. The combination of two pump cylinders, an entablature supported above the same and sustaining thereupon two steam cylinders in line respectively with said pump cylinders and having their pistons connected with buckets in said pump cylinders by common piston-rods, a bracket on the under side of said entablature, a beam, D, comprising two members pivoted in said bracket and having its opposite ends connected with and at opposite sides of the said piston-rods, a valve-driving engine having its valve mechanism connected with and operated by said beam, and valves to control the admission of steam to the steam cylinders respectively actuated by said valve-driving engine, substantially as described."

The term “direct acting engine” is proved to have been long used in the engineering art to exclude engines with a crank and fly wheel and other rotative parts, and the Whiting & Wheeler specification states:

"The devices for actuating the steam valves may be of any desired character, so long as they are positive in action; i. e., without 'dead centur,'” etc.

While there is evidence from the defendant tending to show that this usage of the term “direct acting is not uniform, it is not necessary to determine which usage is the more general or better It is enough if the patentees have used terms which are warranted by good usage to limit the character of the engine named in the claims. The complainant's expert testimony is sufficient to show that, upon a fair construction of the claims and specifications, the patentees intended to use an engine which works without the use of crank and fly wheel or other device for producing rotary motion. Pumping engines controlled in operation by crank and fly wheel are therefore not relevant to limit the claims, and it is well proved that they are not adapted to secure the advantages of the complainant's device.

The pumps constructed according to the patents in suit are controlled in speed and length of stroke solely by the pressures in the steam and pump cylinders, instead of by a crank and fly wheel, and it is abundantly proved that from this difference follow practical results of importance.

Another feature of the device of the Whiting & Wheeler patent in suit is that in one mode of use pointed out in the patent it is not only entirely independent and free from control by crank and fly wheel, but is free from control by a circulating pump, presenting for the first time in the art, so far as appears from the evidence in this case, an absolutely independent air pump.


While the patentees have said in the Whiting & Wheeler patent that:

"The circulating water that passes through the condenser can also be advantageously pumped by the same independent engine that operates the air pump."

155 F. 19

And also:

“The object of our invention is to apply a direct acting engine to the air pump or combined air and circulating pump in such a manner that the whole will occupy very little space and at the same time to furnish facility for access to the valves and other parts of the pumping engine”and while the patentees considered that their invention was present when the pump was a combined air and circulating pump, yet they clearly show and clearly direct the use of the patented structure in such manner that it is entirely free from any control by the circulating pump.

The advantages which are proven to result from the use of the structure as an air pump, free from the impediment of control by the main engine, of crank and fly wheel, or of the circulating pump,

, are:

"First. The movement of the buckets is controlled by the pressure in the air pump cylinders, so that, the pressure being small at the beginning of the stroke, on account of the air in the cylinders, a jump of each bucket during the first part of the stroke takes place, this jump being very quick and extending through a large portion of the stroke, until the bucket strikes the water on the down stroke or the water strikes the head valves, if these be used, on the up stroke, when the bucket slows down and moves very slowly during the rest of the stroke. This jump is of great importance in securing a high vacuum, by acting to open the valves in the bucket quickly and thus getting the air out of the condenser quickly.

“Second. The air pump automatically adjusts itself to the varying conditions of the condenser, the speed varying with the amount of air and water coming from the condenser, and the pump slowing up in case of gulps of water coming over, so as to avoid shock 'and strain. This automatic adjustment aids greatly in maintaining a high vacuum and preventing damage to the pump.

“Third. The speed of the pump, apart from this automatic adjustment, may be readily regulated to the speed which is found best suited to the running conditions of the condenser and engine with which the pump is used. The speed is not dependent upon crank and fly wheel operation, nor upon the speed of a circulating pump, as in the Aries and Coryell pumps."

These statements, which I quote from the complainant's brief, are fully proved, and there is no substantial denial of these advantages. The Coryell pump of the prior art resembles the complainant's device in the use of twin bucket pumps. This device was a combined air and circulating or water pump, and was constructed in accordance with patent No. 306,467, October 14, 1884. In this patent there is indicated no perception of the advantages resulting from freeing the action of the pump from the control of the water circulating pumps. It is said by the defendant:

"The Coryell patent, on the contrary, makes a merit of such an arrangement; for it states that the water cylinder of the pumping engine renders the movements of the steam engine and air pump very uniform."

It is quite true that the Whiting & Wheeler patent in suit does not specifically point out the advantages which will follow from operating the pump as an air pump, nor does it state the specific node of operation of the parts. It makes no express reference to the fact that its operation will be different when it is used solely as an air pump from its operation when it is used as a water pump or as an air and water pump

It makes no express reference to the fact that its

rate of speed may be such as is suitable for pumping air only, and need not be such rate of speed as is required for a circulating pump. The defendant insists that the complainant is attempting to support a claim for invention upon an obscure mode of operation, which merely lurked in a particular use of the thing claimed, but which did not belong to all its uses, and was not even indicated or suggested as appertaining to it, and that this is not countenanced in the administration of the patent law.

Nothing is clearer, however, than that these patentees have specifically suggested the entirely independent use of the structure of the patents in suit as an air pump. The complainant has proved th in such use it is an air pump which is superior to those of the prior art. The descriptions by the experts of the novel operations whereby this important result is reached are not expert attempts to read into the patent what it does not contain, but are merely explanations of a mode of operation whereby the machine described differs in operation from the devices of the prior art and whereby superior results are attained. The complainant's brief states:

“The invention in issue involves a novel idea, which is the operation of the direct-acting bucket air pump without control by a crank and fly wheel or a circulating pump. The idea is new, and the fact that the means for carrying out the ideas were all old does not negative patentability, in view of the new use to which they were adapted, new functions, and the great utility of the combination. It is not conceivable that the combinations by which this important advance in the art was made were obvious.”

I am of the opinion that the record in this case fully warrants the above statement of complainant's counsel. The evidence of the long-continued attempts to produce a satisfactory air pump, and that it was previously considered necessary or advantageous to control the pump either by attachment to the main engine, or by a crank and fly wheel, or by circulating pumps, and the practical results following from securing a really independent pump controlled only by the pressures . in the steam and pump cylinders, in my opinion, is sufficient to establish invention in the Whiting & Wheeler patent against all the devices produced by the defendant to show that all Whiting & Wheeler did was to make a permutation of devices of the prior art. The ultimate position of the defendant is that there are two aspects of the want of substantial novelty in the structure of the patents in suit: (1) That by substitution in a particular structure, like the Chiswick pumping engine, of homologous features taken from other twin steam pumps, the complainant's structure might have been produced as a mere matter of modification of structural details; or (2) that the Aries direct acting single steam pump, or the wrecking bucket water pump duplicated and twinned together by the same means exemplified in other twin steam pumps, would have produced the pump of the patent in suit without the use of the inventive faculties. It is finally said:

"The issue of patentable novelty in the case at bar is resolved into the question whether, given a considerable number of instances of prior vertical steam pumps all fundamentally alike and containing certain subordinate structural features, there was any invention in transferring either or any of these features to a vertical twin steam pump of the same kind, to perform therein exactly the same functions as before."

This statement erroneously assumes that the functions of the features combined in the Whiting & Wheeler patent in suit are exactly the same as before. It is well proved that the pumps which are the ultimate factor in exhausting the condenser are made to operate in a different way from the pumps of prior devices, and that this operation is more efficient in securing a vacuum, and that this superior efficiency is due to a new combination of old elements.

In Computing Scale Co. v. Automatic Scale Co., 204 U. S. 609, 616, 27 Sup. Ct. 307, 310, 51 L. Ed. 645, it was said:

"It is well settled by numerous decisions of this court that, while a combination of old elements producing a new and useful result will be patentable, yet where the combination is merely the assembling of old elements producing no new and useful result, invention is not shown."

The principal basis for the contention that the complainant's devices have produced no new and useful result is the erroneous argument that the patent cannot be so construed as to give the complainant the advantage of new and useful results in air pump use. As I am of the opinion that the complainant is entitled to a construction of the patents which secures to it the structures claimed for all the uses of which they are capable, the present case falls into that class of cases where a combination of old elements producing a new and useful result is regarded as patentable.

The contention that the Whiting & Wheeler patent is invalid by reason of prior personal knowledge of the individual patentees is based upon a drawing of a proposed combination of air, circulating, and feed pumps; but there is shown in this device no conception of a completely independent air pump, or of the novel ideas which are characteristic of the Whiting & Wheeler structure, when employed as the patent directs for air pump use. The same argument as to equivalency or approximate equivalency of prior structures and the same peculiar interpretation of the Whiting & Wheeler patent underlies the contention that the patent is invalid by reason of prior personal knowledge as underlies the main proposition that there is no substantial novelty in the Whiting & Wheeler patent.

As to the Hall & Gage patent, the defendant contends that the structure is the same as that described and shown in the Whiting & Wheeler patent, with the sole exception of the addition of a connection between the walking-beam and the valve-driving engine.

The complainant insists that it cannot be properly said of the claims of the Hall & Gage patent that they are merely for combinations of old elements, since the valve movement, which is one element, is itself novel, apart from its combination with the direct acting bucket air pump, and also because with this novel element combined with the direct acting bucket air pump there is produced a structure in which the elements coact to secure a single result; that is, absolute certainty and reliability of operating the separate steam valves of the two cylinders instantaneously and at exactly the same moment, and under positive control as to time of operation by the pumps through the beam regardless of the variation of speed or jump of the buckets.

In both patents the framework is of such character as to perinit of a compact and self-contained construction, so that the jar and shock from the peculiar action of the buckets is taken up by the frame and not transmitted to cause strain upon the steam pipes or upon the operating parts. I am of the opinion that both patents are for true combinations, and that the contention that they are merely for pseudo combinations involves a disregard of the fact that all of the features named in the claims contribute to a unitary result.

The criticism that the claims specify "merely an assemblage of structural features, among which some are functionally independent of the others and have no mutual influence or effect upon one another,” does not present a proper test of the existence of a true combination. It is admitted that there is one sense in which all parts of such a structure are combined, namely, in the sense of sharing the strain derived primarily from the exertions of power by the steam engine ; but it is said this is incident to all machinery whatsoever. The practice of patent solicitors, however, to claim, in the manner of the patents in suit, those elements which are useful and which co-operate in the structure, even performing merely the function of support or resistance to strain, is common; and it would be introducing an impractical refinement to reject elements whose function was not novel or merely incidental to machinery in general, and for such reason to invalidate claims which are drawn in a usual, practical, and convenient form. The argument of the defendant fails to recognize and to meet the practical proposition that the parts enumerated are suitable and proper parts, each having its greater or lesser share in the improved work performed by a novel structure.

A further consideration of the details of the very elaborate defense, in my opinion, is unnecessary. I have very carefully examined all the defendant's contentions, and I find nothing therein sufficient to overcome the presumption of validity of the patents in suit. If, indeed, it is true that the devices of the prior art are in substance the same as the devices of the complainant, the defendant will be still at liberty to use them. The very strong preponderance of practical testimony is to the effect that they are not the same, and that the complainant's devices owe their value to those variations from the prior art which the defendant disparages as trivial.

I am of the opinion that both patents are valid and are infringed, and a decree may be entered accordingly.

Decree for complainant.


(Circuit Court, S. D. New York. July 23, 1907.)

No. 9,155.


The Duncan patent No. 550,823 for improvements in electricity meters of the motor type claims 1 and 8, the essential feature of which is a magnetic shield inserted between the armature and the damping magnets to protect them from the influence of the field coils, are void for anticipa

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