1. The claim of letters patent No. 105,765, granted to John F.
Barker, July 28, 1870, for an "improvement in gas burners," is
valid.
2. Although in its method of supplying additional gas and in its
valve arrangement for regulating the supply, a gas burner made
according to the description of those letters infringes both of the
claims of letters patent 104,271, granted to Theodore Clough, June
14, 1870, for an "improvement in gas burners," yet as it dispenses
with the interior tubular valve of Clough, and is made in two
pieces instead of three, and is less expensive to make, and as, in
regulating the supply, the shell alone revolves, and the flame
always remains in one position, the modifications are new and
useful, and therefore patentable.
The facts are stated in the opinion of the Court.
Page 106 U. S. 179
MR. JUSTICE BLATCHFORD delivered the opinion of the Court.
This suit was brought by the appellee against the appellant to
recover for the infringement of letters patent granted to John F.
Barker, July 26, 1870, for an "improvement in gas burners." The
specification of that patent and its claim are set forth at length
in the opinion in
Clough v. Barker, ante, p.
106 U. S. 166. The
answer of the defendant admits that he has made and sold gas
burners substantially like those described in the Barker patent.
The principal defense set up in the answer is that the defendant
invented the improvement patented to Barker, and obtained letters
patent therefor from the United States on the 14th of June, 1870,
being the same patent on which such other suit was founded, and the
specification of which is set forth at length in the opinion
therein; that the burners which defendant has made and sold were
made under and according to that patent; that the defendant made
and used said improvement in December, 1869, and applied for a
patent for it December 4, 1869, which was granted, being the said
patent of June 14, 1870; that after he had invented and perfected
said improvement and had filed such application for a patent for
it, he showed a sample of it to Barker in May, 1870, and that
Barker thereupon, fraudulently intending to deprive the defendant
of the benefits of his invention, obtained a patent for it, being
the said patent of July 26, 1870, the gas burner patented by him
being substantially like that previously patented by the defendant
in construction, mode of operation, and result, and being a mere
mechanical equivalent therefor. No other anticipation of Barker's
invention is set up in the answer. The decree of the court below
was in favor of the plaintiff.
The claim of the Barker patent covers a gas burner having these
features: a pillar with holes therein around the circumference at
its bottom and an adjustable or movable surrounding
Page 106 U. S. 180
shell or tube, such shell, by being moved up or down, either
closing or opening the holes, and thus stopping or permitting the
flow of gas through the holes. The general principle of the burner,
so far as regards supplying additional gas to the burner through
the holes and the surrounding tube as the illuminating qualities of
the gas become weaker, and as regards having a method of increasing
or diminishing such supply by a valve arrangement covering or
uncovering the holes as required, is the same as that of the prior
patent to Clough, the appellant, and which was the prior invention.
It has been held by this Court in the other suit between the same
parties that a gas burner made according to the description in the
Barker patent infringes both of the claims of the Clough patent --
the claim for the method of supplying the additional gas and the
claim for the application of a valve arrangement to regulate the
supply. But the point of the invention and patent of Barker is that
the surrounding shell or tube is so arranged that the screwing of
such shell up or down causes it to act as a valve on the outside of
the pillar to close or open the holes. As a consequence, the
interior tubular valve of Clough is dispensed with, the burner is
made in two pieces instead of three, is less expensive to make, and
moreover, in regulating the supply of gas, the shell alone
revolves, and not the burner with it, as in Clough's burner, and so
the flame always remains in one position. We think from the
evidence that these modifications were new and useful and
sufficient in character to sustain a patent. The burner in the form
patented by Barker appears to have superseded the burner in the
form patented by Clough, and after Barker had introduced his burner
into use, Clough commenced making for market burners in the same
form patented by Barker.
As to the claim that Clough made prior to Barker the form of
burner covered by Barker's patent, the circuit court held that the
burden of proof being on the defendant to make out that allegation
satisfactorily, the evidence fell short of showing clearly that
Clough anticipated Barker as to that form of burner. Without
discussing the evidence in detail, it is sufficient to say that we
concur in that view. The burner of Clough which Barker saw before
he made his burner was the
Page 106 U. S. 181
Clough burner which had the tubular valve in the inside of the
burner tube.
If the evidence as to the existence prior to the invention of
Barker of other burners than that of Clough be considered on the
question of the novelty of the arrangement claimed by the Barker
patent, it must be held that none of the prior forms of burner
introduced in evidence anticipate the arrangement covered by the
claim of the Barker patent.
Decree affirmed.