SWIFT v. EAMES VACUUM BRAKE CO.

SWIFT v. EAMES VACUUM BRAKE CO. (Circuit Court of Appeals, Second Circuit. March 22, 1895.) Patents — Construction and Infringement — Exhaust Steam Muffuers. The Swift patent, No. 209,939, for an improvement in mufflers for the escape of exhaust steam, construed, and held infringed by an apparatus made under the Eaines patent, No. 228,744. Appeal from the Circuit Court of the United States for the Southern District of New York. This was a suit in equity by William H. Swift against the Esunes Vacuum Brake Company for alleged infringement of a patent. The circuit court sustained the patent, and held that tlie same was infringed by tlie defendant’s apparatus. Tlie following opinion was rendered below by Wheeler, District Judge: The plaintiff’s patent, No. 209,939, dated Nov. 12, 1878, for an “improvement in mufflers for the escape of exhaust steam,” is, upon the pleadings and proofs, to be compared with patent No. 131,807, dated October 1, 1872, and granted to George S. Bassett, for an “improvement in vaporizers for steam-heating apparatus,” and No. 195,003, dated September 11, 1877, and granted to Herman Guels, for an “improvement in devices for preventing the noise of escaping steam,” as well as with No. 228,744, dated June 15. 1880, and granted to Elisha D. Earnes, for a “noise muffler,” under which the alleged infringement is made. Bassett’s vaporizin' lias angular diaphragms, against which the steam is sent for the taking out of water and conducting; it away, and a perforated cap for spraying the steam into the air of the heated rooms to moisten it; and Guels’ devices are finely-perforated plates. The plaintiff’s muffler is composed of literally sinuous passages, and one or more series of perforations graduated to proper size to prevent setting hack the steam, and dividing it mío jets. The diaphragms of Bassett form pockets for drying the si cam, rather than passages mitigating its flow; and the passage leading that part of it wanted for spraying to the perforations is not sinuous, and the perforations are not graduated to prevent setting hack. The devices of Guels have no sinuous passages. And neither anticipates the combina Hon of sinuous passages and one or more series of graduated perforations of the plaintiff's patent. A construction of the patent always including an intermediate series of perforations is plausibly argued for the defendant; but one series, which may he tlie outer one, or more, seems to be well covered by the. patent. The, patent of Eaines and the alleged infringement to a greater extent have the sinuous passages mitigating the flow of the escaping steam, and both have one series of perforations, dividing it into jets. Tlie patent of Eames may cover improvements upon the plaintiff’s muffler; but, notwithstanding this, the substance of the plaintiff’s patented invention appears to have been taken into the improvement, and tlie alleged appears to be an actual infringement. Decree for plaintiff. J. E. Maynadier, for appellant. Gowen, Dickerson & Brown, for appellee. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. Inasmuch as no defense of want of novelty, based on tlie prior patent to Bassett, has been interposed by the defendant, and we are unable to adopt the narrow construction of the first claim of the patent in suit contended for in behalf of the defendant, we are constrained to affirm the decree of the court below, and do not deem it necessary to add anything to tlie observations in tlie opinion of Judge Wheeler. The decree is affirmed, with costs.