ports upon its face to be for a product. But it is contended that the earlier patent is, in ly into a broad outward corrugation. This is the process which the defendants follow. It is the claim of the defendants that they, as well as the plaintiff, have thus omitted one of the essential steps of the patented process in that: A. By the use of the mandrel no "narrow uncorrugated connecting portions between the outwardly extending corrugations" are left in the sense in which the phrase last quoted is used in claims 1, 3, and 5 of the patent. B. That an excess of temper and toughness in the outer bends of the outer corrugations over the bends of the inner corrugations is a prime characteristic of the patented process in which the presence of the expansion brace is essential.

As to "A," it is admitted by the defendants in their answer to the tenth interrogatory that in their use of the mandrel the broad outward corrugations are so located with reference to one another as to leave the portions between such corrugations narrower than the outward corrugations. The term "narrow" being a relative one, it is apparent that the use of the mandrel does not prevent the leaving of narrow portions of the tube between the broad corrugations. Nor is any reason perceived for attributing to the word "uncorrugated" any unusual meaning, and while the use of the mandrel may result in the surface of the tube following what is often called a sine curve, nevertheless the portions of the tube between two outward corrugations formed by the mandrel are as clearly uncorrugated in that such portions have not been made the subject of a process of corrugating as though the expanding brace had been used in opposition to the surface of the flange of the matrix roll. True the use of the brace serves to prevent the inward forcing of the narrow uncorrugated portions but as will more fully appear later, I deem the use of the brace a part of the illustrative method of following the process rather than an essential thereof.

As to contention "B," it is to be borne in mind that the means of carrying the process into effect described in the patent is only illustrative. This is common in process patents and in the instant case such description is introduced with the words "the inventive idea is capable of expression in a variety of methods, one of which for the purpose of illustration is hereinafter specifically described." The conclusion is therefore reached that the use of the expanding mandrel by the parties is not an effective departure from the process of the patent, and that in the process used by the defendant narrow uncorrugated portions are left connecting the broad corrugations, within the meaning of the claims 1, 3, and 5.

In defendant's process, however, there are no rolls or their equivalent used in opposition to one another, between which the metal of the tube is rolled, and I therefore find that the defendant does not use a metal rolling operation, as the term is used in claim 1 of the pat

ent.

Considerable testimony and argument has been heard with reference to the meaning of the phrase "subjecting the said curved portions to swaging pressure to toughen and tem per the metal in said curved portions," found

fact, for a process, and the same process as the other, and that the later patent is therein all of the claims save the first, with particular reference to the meaning of the word "swag" ing pressure." The term "swage" is defined in Hawkins Mechanical Dictionary as "a tool, variously shaped or grooved on the end or face, used by blacksmiths or other workers in metals, for shaping their work, whether in sheet metal or forging, by holding the tool upon it, or the work upon the tool, and striking with a sledge."

Webster's definition is the same, and the latter says the verb "to swage" means "to shape by means of a swage." The Century Dictionary's definition of the noun is "a tool or die for imparting a given shape to metal when laid hot on an anvil, or in a stamping press or dropping press, or between rollers. It assumes many shapes, as an indenting or shaping tool or as a die for striking up said metal or in stamping or presses. Stamping presses are sometimes called swage machines."

Whatever may be the lexicographer's definition of the word "swaging," it is quite clear that, as used in the patent in suit, the term does not contemplate that such portion of the tube as is being subjected to swaging pressure must be bottomed against an opposing surface. The expanding brace heretofore referred to is spoken of as preventing the inward swaging of the tubular wall by the opposing surface of the matrix flange, and the action of the flanges of the matrix roll in subsequent steps of the process where the expanding brace is not used and where no surface is in apposition to the inner surface of the inward corrugations, is termed swaging. In view of these applications of the term by the patentee, the intent to use the term in a sense limited to pressure of the metal by one roll or tool against the surface of another in the process of swaging is so negatived as not to warrant, much less require, such a limitation. Pressure by a shaping tool stretching and bending the metal is what was intended, as I view it. That the drawings of the patent illustrate the outer corrugations in their extreme positions, bottomed against the curved surface of the sinus of the matrix, is of no particular moment, inasmuch as there is nothing to indicate that the working of the metal is to continue after such contact is effected. That the defendants avoid such bottoming, does not, in my opinion, differentiate their process from "swaging" as that term is used in the patent in suit. Defendants define their process as "spinning" rather than swaging, but spinning is a process spoken of in the specifications as one which might be used instead of the rolling process, without departure from the essence the invention.

of

Thus construed, defendant's method clearly infringes. It is immaterial that they add steps to the process which they consider improves the product, so long as they slavishly follow the patented process so far as it goes. Tilghman v. Proctor, 102 U. S. 707, 731 et seq., 26 L. Ed. 279; Lalance & Grosjean Mfg. Co. v. Haberman Mfg. Co. (C. C.) 53 F. 380; Ford Morocco Co. v. Tannage Patent Co. (C. C. A.) 84 F. 644. But it is earnestly contended that if the patent be so construed it is invalid, being anticipated, it is said, by five prior art patents-three United States patents, Daelen No. 266,976, dated No

No evidence is given tending to show that the methods of these patents have ever been used and the testimony indicates that no one piece flexible corrugated tubular walls were known, having or in any degree approximating the highly sensitive flexibility of the Fulton bellows, prior to Fulton. Four of the above patents relate to the manufacture of expansion joints, indicating the use of comparatively heavy tubes with corrugations comparatively shallow, designed to afford but slight elasticity when compared with that which results from the Fulton process as applied to the type of tube contemplated. When it is borne in mind that the Fulton process is intended to operate on extremely thin tubes, those ordinarily used being .003 to .008 inches in thickness, and that the requisite corrugations must be deep, it is apparent that machines or processes intended to form corrugations in tubes to be used in expansion joints in steam pipes, boiler flues and tubes, condensers, couplings between locomotives and their tenders, hose for fire engines, etc., are not likely to disclose a method of dealing with a tube so frail as that, the forming of which is the first step of the Fulton process. Nor do they. The evidence indicates that Fulton tried out most, if not all, of these processes in his efforts to solve his problem but without success and defendants apparently perceive little of virtue in them, if their adherence to the Fulton process be given weight.

The Daelen patent, most relied on, does not deal with expansion joints, however, but cov. ers a machine "for corrugating plates and tubes." The drawings and specifications dis close a machine for corrugating sheets of metal, but the inventor says that the machine "may also be used for pressing corrugations into tubes." Some doubt may exist as to whether or not the machine would operate to form corrugations in a tube, except in the form of a helix; but, laying that and other doubts aside, the Daelen machine assuredly does not operate to "reduce the radius of curvature of the bends" during successive operations nor to "transfer into the lateral portions, portions of said bends." The steps of the Fulton process last above quoted indicate important elements thereof, to wit, the swaging by successive sets of rolls or tools, progressively narrow, so that the corrugations are not only deepened but narrowed, and portions of the bends transferred into lateral portions of the corrugations, thus giving that increase of temper as one approaches the curve of the bend where the maximum of toughness exists. This same distinction exists between the process in suit and the machines or processes disclosed in Emery No. 297,244, Hollerith, No. 349,718, and Koffler, the German patent, No. 98,096, all three of which use hydraulic pressure as a means of forcing the corrugations outward and relate to the manufacture of expansion joints as already indi

cated.

The Webster patent (English, 1856) discloses a series of operations, using rolls progressive

ly narrow, but applied wholly upon the exterior of the tube to make and deepen inwardly extending corrugations only. This patent discloses no method of preventing the inward crumpling of the tube. Assuming that the Webster machine would successfully corrugate tube for the purposes specified, to wit, for couplings of locomotives with their tenders, hose for fire engines and other like purposes, they being of sufficient thickness and weight to withstand the contemplated operations, I find that this method would not be successfully operative upon the thin tube used in the patented process. In all probability the thin tube of the process in suit would crumple under the pressure, but if not that, I am convinced that body wrinkles, so called, would result, to the serious detriment of the product. Furthermore the ripe age of this patent, the years of which seem barren of actual contribution to the art, tend to deny it a status anticipating the quite substantial contribution of the Fulton process.

Other earlier patents have been referred to but not seriously pressed and it is not thought necessary to treat them separately. All have been considered.

In accordance with the foregoing, I find claims 2, 3, 4, and 5 of the patent valid and infringed. I find claim 1 is not infringed.

On the issue of unfair competition I find for the defendants. The defendant Laboratories Company has made and sold thermostatic regulating devices suitable for use in automobiles to automobile manufacturers. These devices combine the tubular wall, a process for making which is the subject of what has been said, with rigid end plates, making a hermetically sealed inclosure in which is confined a volatile fluid. Such devices are not easily distinguishable from those produced by complainant. On the latter's device for similar purposes the name "Sylphon" is stamped in the plate at one end of the device, while those of the Laboratories omits any designation or distinguishing mark. Both types of devices are strictly utilitarian and except as just indicated, bear no marks. So far as the tubular wall of the respective devices is concerned, neither concern

gives it any distinguishing mark, nor could that well be done, I think, without detriment to the strength or efficiency of the wall. However, the defendant Laboratories have sold such devices exclusively to manufacturers of automobiles whom it has informed that the devices were not of complainant's manufacture, and I find no deception nor confusion of goods has resulted. To the claim of complainant that users of automobiles will be likely to attribute failures of the Laboratories device to complainant's to the injury of the latter, it is sufficient to say that such contention wanders into the field of speculation. Also there is no evidence suggesting much less warranting a conclusion, that the devices of the Laboratories are any less efficient or durable than those of complainant. The conclusion being that there is no deception nor confusion of goods, nor is there any probability of same, it becomes unnecessary to determine the effect of the fact that complainant had a patent, No. 760,443, dated May 24, 1904, and which expired in 1921, prior to defendants' entry into the field, which covered "a hermetically sealed

Immediately after Covelli's arrival in New York in March, 1921, he again engaged in the coal and ice business; but in November, 1922, upon receiving word that his father was very ill in Italy, he again sold his coal and ice business to another cousin, withdrew all his funds from the bank (part of which he loaned to a relative here), and again went to Italy on November 15, 1922. His father died December 10, 1922, leaving an estate, consisting of a farm, which was then worth about $3,600. His deceased father's will provided that one-third of the property should go to his wife, and the remaining twothirds to his six children; Covelli's individual share being about $400. There were differences among the surviving children as to the division of the land, which were not adjusted until February, 1924, when a settlement was finally made, at which time Covelli received about $480 as his share. He finally returned to the United States on May 12, 1924.

Covelli's absence from the United States on the two trips herein before referred to amounted in the aggregate to two years and one month. While abroad on the first visit, he did not work, but supported himself and his family on his savings; but during his absence on the second trip abroad he worked on the farm which his father had owned.

The petition in this case should be denied. The applicant's wife and family have lived abroad for eight years. During that period he has been absent for more than two years, and each time he left sold out his business in this country. It is hardly to be supposed that a person would stay abroad for 18 months in order to obtain a legacy of about $400, when almost any imaginable earning capacity here would have yielded much more. I conclude that he has had no steady purpose to reside in this country since his family left here; his stay has been intermittent, and in each case he has, as it were, burnt his bridges before leaving. Continuous residence is not established.

lation for a second mortgage on real estate, which mortgage, by oversight, was never executed or delivered, was not entitled to recognition as an equitable lien, but lender was entitled to be recognized only as general creditor; Bankruptcy Act, § 47a (2), being 11 USCA § 75, not being applicable.

2. Bankruptcy ›188(3)—Bankruptcy court, as court of equity, is bound by positive state law denying recognition to equitable liens.

Bankruptcy court, as court of equity sit

ting in Louisiana, is as much bound by the positive law of the state refusing recognition of equitable liens as are the courts of the state or any court of law.

3. Equity 54-Aid of equity courts can be invoked only by those acting in good conscience, good faith, and with reasonable diligence.

The activity of courts of equity cannot be

invoked, except by those who act, not only in good conscience and good faith, but also with

reasonable diligence.

In Bankruptcy. In the matter of James E. Hagin, bankrupt. On petition by the Southern Development Company for review of referee's order refusing to recognize petitioner as the holder of an equitable lien against bankrupt's realty, or otherwise than as an ordinary creditor. Petition denied, and referee's order affirmed.

See, also, 21 F. (2d) 434.

Louis L. Rosen, of New Orleans, La., for petitioner.

A. P. Frymire, of New Orleans, La., for trustee.

BURNS, District Judge. [1] Petitioner for review, the Southern Development Company, loaned $750 to the bankrupt, stipulating for a second mortgage on certain real estate. By oversight on its part, the act of mortgage was not made, signed, or delivered. In due course, after adjudication, the trustee proceeded with the sale of the property, when the petitioner discovered that it did not hold the security intended. The referee refused to recognize petitioner's claim to recognition as the holder of an equitable lien, or otherwise than as an ordinary creditor. Hence the petition for review.

The referee must be sustained. Such liens are not recognized in Louisiana, where liens, privileges, and mortgages are precisely defined by the Civil Code, and no proof can be admitted of a verbal mortgage. Article 3305. The state Constitution (article 19, § 19), prescribes:

"No mortgage or privilege on immovable property, or debt for which preference may be granted by law, shall affect third persons