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2. Patents Om 168 (2)-Claims cannot be construed as broad as those which

were cancelled,

The claims in the patent as issued cannot be construed to be as broad as

those which were canceled after rejection by the patent office. 3. Patents 328_979,849, daims 9 to 12, for automatic stoker, held infringed

The Hanna patent, No. 979,849, claims 9 to 12, for an automatic stoker, the essential element of which was a distributing plate having an unob

structed central portion and divergent channels, held infringed. 4. Patents Cw328—1,130,443, claims 1 to 3 and 9, for automatic stoker, held

not infringed.

The Street patent, No. 1,130,443, claims 1 to 3 and 9, for an automatic stoker, one element of which was means for delivering the fuel above the firing door, held not infringed by an automatic stoker in which the fuel was delivered through the firing door if those claims are given the limited construction necessary to avoid the prior art.

In Equity. Suit for infringement of patent by the Mechanical Construction Company against the Locomotive Stoker Company, in which defendant by way of counterclaim alleged infringement of a patent by plaintiff. Bill dismissed as to one of plaintiff's patents, decree rendered for plaintiff as to the other patent, and counterclaim dismissed.

Walter F. Murray, of Cincinnati, Ohio, and W. G. Doolittle, of Pittsburgh, Pa., for plaintiff.

Gillson & Gillson, of Chicago, Ill., and Paul Synnestvedt, of Philadephia, Pa., for defendant.

THOMSON, District Judge. The Mechanical Construction Company, a corporation of the state of Ohio, brings this suit against the Locomotive Stoker Company, for infringement of letters patent No. 979,849 for an improvement in an automatic stoker, issued to the plaintiff on December 27, 1910, on an application filed by William T. Hanna. The defendant denies infringement, alleges the invalidity of the patent, and by way of counterclaim alleges infringement by the plaintiff of letters patent No. 1,130,443, issued to the defendant on March 2, 1915, as assignee of Clement F. Street. Plaintiff in reply, denying validity of the Street patent or infringement thereof, prays that the counterclaim be dismissed. Plaintiff's bill was also based on letters patent No. 1,002,513. At the opening of the trial plaintiff's counsel stated that this patent was withdrawn. Defendant's counsel have filed a motion to dismiss as to this patent, which motion is granted, as will later appear in the decree.

[1] The questions involved in the Hanna patent, No. 979,849, are the validity of claims 9, 10, 11, and 12, and their infringement by defendant through its use of the device embodied in Plaintiff's Exhibit 3 and Defendant's Exhibit D. The subject-matter of these claims is a distributing plate for spreading over the grate area with uniformity the fuel which is forcibly injected by steam pressure into the fire box. The immediate problem which Hanna sought to solve was the co-operation of a distributing plate with a steam blast in separating from a moving stream of coal an amount sufficient to keep the rear corners

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

(274 F.) and back sheets of the furnace supplied, and permitting the steam blast to carry a suficient quantity forward to the sides, and forward ends of the fire box, so that uniformity of distribution will result. Such uniformity is necessary for efficient firing. Hanna accomplished this by the use of a comparatively flat plate, which has in its face divergent channels discharging at opposite sides of the plate, the channels gradually deepening to the discharge end, and turning at the ends at substantially right angles to the longitudinal axis of the base. The deepening of the channels prevents their being clogged or choked with fuel, and their turning at right angles near the discharge end is to insure deflection of the coal to the rear corners. The testimony has satisfied me that this distributor plate as constructed by Hanna is efficient to accomplish the purpose desired. Tests were made by Mr. Fowler on December 4 and 6, 1920, over a run of 102 miles on the Norfolk & Western Railroad, from Roanoke, Va., to Bluefield, W. Va. The train crews and the coal used were the same in each test. An accurate, tabulated account of each trip showing the speed of the engine, pressure of the steam, amount of coal thrown into the fire box by the fireman, the points to which it was thrown, and the times of stopping and starting the engine were kept by Mr. Fowler. The tests showed that on the first trip, with the channels of the distributing plate in their normal condition, the stoker maintained a comparatively even fire through the whole run, no coal being thrown into the fire box by hand, and the fire being hooked by the fireman only a few times. On the second trip the channels on the distributing plate were filled to the level of the surface of the plate, with the result that the fireman hooked the fire 39 times, threw 16 shovelfuls of coal into the back corners, the engine died three times, and the poor distribution of the coal was plainly manifested in the average steam pressure, in the running time, in the difficulty of maintaining steam, and the times of total failure of power. Nor do I think that the value and efficacy of the channels is minimized by the fact that wings are used in the spreading of the coal over the distributing plate. The device illustrated in the patent are wings or guides which are not moved automatically, but may be set to direct the fuel to a selected part of the furnace in order to counteract the presence of clinkers, or otherwise aid in obtaining a uniform fire; while in plaintiff's commercial device the wings move continuously to secure an even distribution of fuel over the distributing plate. But the tests show that the channels are an efficient means by which uniformity of distribution over the grate area is obtained. I do not find anticipation by the defendant. A separate discussion of these several patents is not necessary. Mr. Carter, defendant's expert, in discussing these patents, gave as his opinion that the one most nearly resembling the distributor plate in the Hanna patent is the English patent to Cotton. Defendant's Exhibit Q is a model of the distributing plate of that patent. It appears that the plate is flat, and the action of the fuel over it would be similar to the Hanna plate with the channels filled in. From the location of the plate with reference to the wall, it is evident that the problem of throwing the coal to the rear corners was neither solved nor attempted

by Cotton. While distribution plates were old in the art, plaintiff's device was not merely a change of form, the work of a constructor. The plaintiff's plate, co-operating with a steam blast, resulted in depositing coal in the rear corners and along the rear wall of the furnace, without obstructing the uniform distribution to other parts of the furnace. This was a new mode of operation by which a new and useful result was obtained, and this is invention.

Does the defendant infringe? In the stoker of the defendant, constructed under the Street patent, a distributing mechanism comprising three separate distributors was used, two being located on opposite sides of the central line of the furnace to distribute coal over all parts of the furnace except along the rear wall. This latter function was performed by a central deflector. With this operation, there was a fuel separator by which the fine fuel was passed to the central deflector, and the coarse fuel to the side distributors. With this construction, defendant experimented with a flat plate having a central hollow stud, with radial steam outlets. This method was abandoned. Plaintiff's Exhibit No. 3 is admitted to be one of defendant's distributors as used in its Duplex stoker. In the Hanna type the fuel is introduced through the furnace door, while the defendant feeds through a plurality of openings. The tubular parts of defendant's distributor has sleeves, which pass through round holes in the back head of the boiler. In Hanna there is a rearwardly projecting flat extension, engaging a dovetailed way in the bottom of the furnace door frame.

118.7 HANNA A

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(274 F.) Fig. 2 DUPLEX

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In the preceding cuts, Fig. 1 is a pian view of the plaintiff's distributing plate. Fig. 2 is a horizontal sectional view, showing the bottom plate of defendant's Duplex distributor in plan view. The reference numerals B-B are divergent channels below the central portion. In each the central portion is wide and unobstructed.

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In the preceding cuts Figs. 3 and 4 are perspective views of the modified form of distributor, which defendant has used from a time shortly prior to the filing of the bill. I am satisfied that the functions performed by the channels are the same in each. In each the channels divert a sufficient amount of coal from the forwardly impelled stream of fuel to suply the rear corners of the back well of the furnace; while the remainder is projected forwardly to the other parts of the furnace. Mr. Fowler's tests showed that when the channels of defendant's distributors were filled the results like those in the Hanna tests were most unsatisfactory.

The form of defendant's distributor, Plaintiff's Exhibit No. 3, and the functions performed are substantially the same as the plaintiff's.

The difference between defendant's distributor, as illustrated in Plaintiff's Exhibit 3 and Defendant's Exhibit D, is that the latter has upon the forward edge of the channels a vertical ridge about onequarter of an inch in height. The testimony shows that the difference between these two distributors is only one of degree. They have substantially the same construction and the same operation. The change does not operate to escape infringement.

The claims in suit are as follows:

“(9) A distributing plate for blast feed stokers having a wide unobstructed central portion, and a comparatively narrow divergent channel at each side below the central portion of the plate and discharging at the side of the plate

"(10) A distributing plate for blast feed stokers having an unobstructed central portion and divergent side channels lying below the central portion of the plate and gradually deepening from the receiving to the discharge end, substantially as specified.

“(11) A distributing plate for blast feed stokers having an unobstructed central portion and divergent side channels lying below the central portion of the plate and turned at their outer ends to a direction approximately at right angles to the longitudinal axis of the plate, substantially as specified.

“(12) A distributing plate for blast feed stokers having an unobstructed central portion and divergent side channels lying below the central portion of the plate, gradually deepening from the receiving to the aischarge end and turned at their outer ends to a direction approximately at right angles to the longitudinal axis of the plate, substantially as specified."

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