Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge.
Before BIGGS, MARIS, and CLARK, Circuit Judges.
The appellants sued Freed Heater & Manufacturing Company, the appellee, charging infringement of claims 21, 22, 24 and 26*fn1 of United States Letters Patent No. 1,886,577, issued to Adolph Ousdahl upon an application filed upon February 10, 1925. The court below found there was no infringement and dismissed the bill of complaint. The appeal at bar followed.
The patent is for a coal burning apparatus, an automatic coal stocker to be installed in a furnace. The specification states: "The present invention is concerned with the means for handling and burning the fuel after it has been delivered by the feed screw 8 into the fire pot, and the means for removing ashes from the burner itself." Ousdahl goes on to say that a cup is formed within a casing and that the feed screw delivers coal from the bottom of the cup, advancing it upward into the fire pot by the pressure of the oncoming fuel from beneath. This is the portion of the device devoted to handling and burning the fuel.
Turning now to the second part of the device, that dealing with means for removing the ashes from the burner, the patent specification states in part, omitting reference to numbers, "The coal as it burns forms ashes which by the addition of fresh coal from the bottom of the burner-pot, are pushed outward over the edge of the burner whence they pass * * * substantially uniformly around the circumference * * * of the burner. I provide a ring having a peripheral flange upstanding therefrom to receive these ashes. The right is positioned below the edge of the grate and all ashes forced over this edge fall upon the ash-receiving ring. Inasmuch as the burner rotates, it is possible by providing one or more sweepers or scrapers, pivoted upon the grate, to cause this scraper to move over the ring * * * in an annular path to which the ashes from the burner find their way and to sweep the ashes in front of it. Then by providing a localized opening or hole in the bottom of the ring communicating with a spout the ashes may be swept around to the spout and dropped therethrough into position to be carried away by the screw * * * ."
All of the four claims in suit refer to a path into which the ashes fall from the burner and to a sweeper designed to move through this path. Three of the four claims refer to a "localized opening" into which the ashes are to be swept by the sweeper to the end that they may be removed from the burner. The fourth claim refers to an "opening" for this purpose as distinguished from a "localized opening". If the four claims are read upon the specifications of the patent and with reference to its drawings, it is apparent immediately that by the "localized opening" or "opening" of the claims is meant an opening in the ash trough, that opening leading by some means, such as a spout, to the ash conveyor.
In the appellee's device in like manner a screw conveys coal which is forced up into an annular burner. There is also an ash sweeper mounted upon a ring revolving around the burner and below it upon the fire box floor a conveyor in a conduit to carry off the ashes. The appellant contends that the opening of this conduit is the equivalent of the localized opening or opening disclosed by the patent in the annular pathway around the burner and that the "path" of the claims finds its equivalent in the circular formation of the ashes heaped up in the fire box around the burner. In the appellee's device, however, the ashes simply spill over the edges of the burner and fall down into the fire box, the sweeper moving around the burner and leveling the fallen ashes, pushing some of them toward the mouth of the conduit and the conveyor. There is neither ash trough nor opening in the sense that the patent specifications or the claims sub judice employ those terms.
The claims sub judice are combination claims and there is no infringement since claimed elements of Ousdahl's device have been omitted in the appellee's mechanism and there are no substituted equivalents in the alleged infringing machine. Fairbanks, Morse & Co. v. American Valve & Meter Co., 7 Cir., 31 F.2d 103, 105; Chester-Pollard Amusement Co., Inc. v. Popular Games, Inc., 8 Cir., 34 F.2d 409, 412; McKays Co. v. Penn Electric Switch Co., 8 Cir., 60 F.2d 762, 768, 771; Stearns-Roger Mfg. Co. v. Greenawalt, 10 Cir., 62 F.2d 1033, 1039; Dillon Pulley Co. v. McEachran, 6 Cir., 69 F.2d 144, 147; Bailey v. Galion Iron Works & Mfg. Co., 4 Cir., 80 F.2d 805, 807; Russell Grader Mfg. Co. v. F. B. Zeig Mfg. Co., 6 cir., 259 F. 575, 577; Walker on Patents (Deller's Edition, 1937) Sec. 461, and cases there cited. It is also apparent that the appellant's device is different in construction and action in the respects indicated from that of the appellee and construction and action in the two machines must coincide if a charge of infringement is to be sustained. Lektophone Corporation v. Western Electric Company, 2 Cir., 16 F.2d 10, 12.
Accordingly the decree of the court below ...