The opinion
On Rehearing.
(October 2, 1893.)
A motion for rehearing has been made in this case. The chief argument for the motion is based on the fact which the record discloses, that a short time after the issuance of the S til well patent the appellee erected a purifier for the Dayton Manufacturing Company’s works, in which the gas-escape pipe was connected not with the steam dome, but with a live-steam pipe, near its boiler outlet, which supplied the steam-heating apparatus and the feed pump. This tends to weaken the conclusion of fact reached in The foregoing opinion that Stilwell, when he obtained his patent, did not know that anything but a connection with the boiler direct would accomplish his purpose; but we cannot see how it affects the reasoning and result reached in the opinion, which are based on the language of claim,- — one which excludes from the monopoly of the patent .anything but a connection with the steam space of the boiler. Even if we were to concede that a connection with a live-steam pipe near its boiler outlet was a connection with the steam space of the boiler, it is to be noted that the escape pipe of appellant does not connect with the boiler or any outlet from the boiler. It is an outlet of the purifier away from the boiler. It is true that it connects with a steam-using device, but it furnishes the steam to this device itself. In other .words, the purifier, with its siugle boiler connection and the escape pipe to the feed pump, makes a single live-steam connection between the boiler and the feed pump. This is a different device from that described in the patent, and no construction of the language of the latter can bring the former within it.
Before closing, reference should he made to the averment of the original hill filed by appellee in this action in reference to the Day patent, which, as has béen said, was identical with the device used by appellant:
“And your orator further complains and says, on information and belief, that heretofore, and before the 9th day of June, 1890, Ralph B. Day, of Mansfield, Ohio, was the original and first inventor of a certain new and useful improvement in live-steam purifiers, fully described in the letters patent hereinafter mentioned, and which had not been known or used by others in this country, and not patented or described in any printed publication in this or any other country, before his invention or discovery thereof, and not in public use or on sale for more than two years prior to his application for a patent therefor.”
*742 This averment does not work an estoppel against the appellee and complainant below, for when the interference proceedings between Day and Hoppes resulted in the issuance of Hoppes’ patent, and the consequent defeat of Day, the averment was withdrawn in an amended bill; but it has much probative force to show that the complainant below did regard the Day device as different from that patented to Stilwell, and owned by it. This, too, is the only effect of the circular referred to in the opinion. Counsel for appellee seem to think that the court has treated the circular as an estoppel. In this they are mistaken. Beferenee was made to it as evidence of the construction given to its own patent by the complainant below.
The motion for a rehearing is denied.