TOWNSEND ESTATES, Inc., et al., Appellants, v. KERNER INCINERATOR CO., Appellee

TOWNSEND ESTATES, Inc., et al., Appellants, v. KERNER INCINERATOR CO., Appellee. Circuit Court of Appeals, Sixth Circuit. July 6, 1928. No. 4963. Appeal from the District Court for the Northern District of Ohio; D. C. Westenhaver, Judge. Harry Frease, of Canton, Ohio, for appellants. Laurence A. Janney, of Chicago, Ill. (Emery, Booth, Janney & Yamey, and A. Trevor Jones, all of Chicago, Ill., on the brief), for appellee. Before DENISON, MACK, and MOORMAN, Circuit Judges. [MAJORITY — PER CURIAM.] PER CURIAM. Decree appealed from [27 F.(2d) 599] affirmed. Plaintiffs invention is embodied in an apparatus to carry out his novel concept of a miscellaneous collection of garbage and refuse being air-dried and then self-consumed by surface burning. His structure was differentiated from prior ones by an air by-pass, which at all times assisted in maintaining the air-drying current and deflected some of it through or over the top part of the accumulations. Kenner’s present testimony that his intent in permitting the use of his invention more than two years before application for the patent was for experimental purposes which could be accomplished only during the several seasons of the year and under conditions of complete apartment occupancy, while subject to careful scrutiny, states an entirely natural if not inevitable conclusion as to such intent. It is consistent with all the evidence and suffices to overcome initial doubts. Appellant’s further contentions are answered in Judge WestenhavePs memorandum opinions of January 27, 1926, and January 19, 1927, with which we fully agree.