Transcript of Record — Stilz v. United States

SUPREME COURT OF THE UN ITED STATES.

OcToOBER TERM, 1923.

No. 830.

HARRY B. STILZ, APPELLANT,

V8.

THE UNITED STATES.

APPEAL FROM THE COURT OF CLAIMS.

Original. Print.

Record from the Court of Claims

History of proceedings

Amended petition

Order of court entered Dec. 17, 1923

Amended findings of fact

Conclusion of law

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HARRY B, STILZ VS. UNITED STATES. 1

1 Court of Claims of the United States.

Harry B. Stiuz

v8. No. B-25.

Tue Untrep States.

I. History of proceedings.

On February 16, 1922, the plaintiff filed his original petition.

On March 7, 1922, the defendant filed a demurrer to said petition.

Subsequently, to wit, on March 24, 1922, by leave of court, the

plaintiff filed his amended petition.

On April 10, 1922, by leave of court, the demurrer to the original

petition was withdrawn by defendant.

The amended petition, filed March 24, 1922, is as follows:

9 II. Amended petition.

Filed March 24, 1922.

To the honorable the Court or Ciars.

The claimant, Harry B. Stilz, respectfully represents:

I. He is a resident of the city of Philadelphia, in the county of

Philadephia and State of Pennsylvania.

II. On the 18th day of November, 1908, claimant, being ‘vithin

the meaning of the statutes of the United States then in force, the

inventor of certain improvements in oil burners and being entitled

te a patent thereon under the provisions of said statutes, duly filed

in the Patent Office of the United States on application for letters

patent for said invention; and on the 11th day of January, 1910,

all the requirements of the statutes then in force having been com-

plied with, letters patent of the United States, No. 945873, were

duly issued pursuant to said application, and thereby claimant be-

came, and now is and continues to be, the sole and exclusive owner

of said letters patent of the United States and of the invention or

improvement therein described and claimed.

III. On the 8th day of May, 1911, claimant, being within the

meaning of the statutes of the United States then in force, the

inventor of certain improvements in oil burners and being entitled to

a patent thereon under the provisions of said statutes, duly filed

in the Patent Office of the United States an application for letters

patent for said invention; and, on the Ist day of July, 1913, all of

the requirements of the statutes then in force having been com-

plied with, letters patent of the United States, No. 1066161, were

duly issued pursuant to said application, and thereby claimant be-

came and now is and continues to be, the sole and exclusive owner

of said letters patent of the United States and of the invention or

improvement therein described and claimed.

2 HARRY B. STILZ VS. UNITED STATES,

IV. Claim 2 of patent No. 945873 and claims 1, 6, and 7 of patent

No. 1066161 broadly cover a new principle in the art of burning oil,

which has been widely demonstrated to be an epoch-making improve.

ment.

V. Said improvement was reduced to practice as a demonstrated

success during August of 1910. Shortly afterwards, the Bureau of

Steam Engineering, Navy Department, made and _tested, at the

Philadelphia Navy Yard, fuel-oil burners in which said principle

was embodied. _

VI. Fhe Navy Department, since then, has manufactured, at the

Philadelphia Navy Yard, oil burners which infringe said patents,

and oil burners which likewise infringe said patents have been

manufactured for the United States by the Schutte & Koerting Co,

ofPhiladelphia, the Babcock & Wilcox Co. of New York, the

Bethlehem Shipbuilding Corporation (Ltd.), and probably others.

VII. With comparatively few exceptions, said infringing oil

burners were manufactured by or for the United States during the

six years prior to Feb. 16, 1922, and they continue to be used by

the United States to the present day. me

VIII. Claimant has given notice of said letters patent, as required

by the statute in such case provided.

3 IX. The invention described in and covered by said letters

patent of the United States, #1066161, has been used and

manufactured by and for the United States, during the six years

prior to the filing of this petition, without license or lawful right

to use or mannfacture the same. Claimant therefore seeks his

remedy by a suit herein for the recovery of his reasonable and en-

tire compensation, in accordance with the act of June 25, 1910, chapt.

423 (36 Stat. L. 851), amended by the act of July 1, 1918, chapt.

114 (40 Stat. 704).

X. By reason of the facts aforesaid there is justly due to claimant

from the United States a sum of money. equal to the difference in

the cost of oil fuel, which has been burned, during the six years pre-

ceding. Feb. 16, 1922, by means of said infringing oil burners and

the cost of oil fuel, which would have been consumed in order to

obtain the same results, during the same time, had it been burned

by means of the next best oil burner, which was then on the market,

plus such royalties as the United States might have been obliged to

pay, for the right to use the latter burner, plus the reduction in first

cost of boilers, equipment, etc., required to, deliver the maximum

power desired in the various installations, which have been made

by and for the United States, where fired with said infringing oil

burners, from what, said first cost would have been, had any other oil

burner been used for firing said bojlers.

XI. No other action has been had on said claim in Congress or

by any of the departments; no person, other than the claimant, is

the owner thereof or interested therein; no assignment or transfer

of this claim, or any part thereof or interest therein, has been made;

the claimant is justly entitled to an amount as herein claimed from

HARRY B. STILZ VS. UNITED STATES. 8

the United States, after allowing all just credits ‘and offsets; the

claimant has at all times borhe true allegiance to the Government of

the United States and has not in any way voluntarily aided, abetted,

or given encouragement to rebellion against the said Governnient.

The claimant is a citizen of the United States.

Claimant therefore prays that defendant may be décreed to ac-

count for and pay to claimant the gains unlawfuly derived from

the violation of claimant’s rights.

Harry B. Sriuz.

[Jurat showing the foregoing was duly sworn to by Harry B.

Stilz omitted in printing.]

4 III. Argument and submission of case.

- On June 4, 1923, this case was argued and submitted on merits

by Mr. Harry B. Stilz, for plaintiff, and by Mr. John W. Loveland,

for defendant.

IV. Proceedings after submission of case.

On November 5, 1923, the court filed findings of fact and conclu-

sion of law and entered a judgment dismissing the petition, with

an opinion by Booth, J.

On November 19, 1923, the plaintiff filed a motion for ‘a new trial,

and for amendment of findings.

V. Orders of Court entered December 17, 1923.

Ir 1s OnpERED By THE Court that the plaintiff’s motion for amend-

ment of findings be and the same is allowed in part and overruled

in part. The former findings of fact are vacated, set aside, and

withdrawn, and amended findings are this day filed—the former

judgment and opinion to stand.

The plaintiff’s motion for a new trial is overruled.

5 VI. Amended findings of fact, conclusion of law, and epin-

ton of the court by Booth, J. Entered December 17, 1923.

This case having been heard by the Court of Claims, the court,

upon the evidence, makes the following

Amended findings of fact.

I.

At various times from 1900 to 1911, inclusive, the plaintiff, Harry

. Stilz, was in the employ of the United States. From 1900 to

1905 he was an employee in the Bureau of Construction and Repair

of the Navy Department, and subsequently he was at various times

4 HARRY B. STILZ VS. UNITED STATES.

in the employ both of private shipbuilding companies and of the

United States navy yards at Philadelphia, Pa., and Mare Island,

California. During all of the time of such employment his duty

and work included the examination, designing, and making of draw-

ings relating to oil burners or oil-burning devices for oil-heated fur-

naces, and he had access to the various dré wings, blueprints, and

publications relating to such devices, at the places where he was

employed.

Il.

On November 18, 1908, plaintiff filed an application in the United

States Patent Office for letters patent for certain improvements in

oil burners, upon which application there were granted to him,

y under date of January 11, 1910, United States Letters Patent No.

' 945873, a copy of which is by reference made a part of these findings »

of fact as Exhibit A.

III.

On the 8th of May, 1911, the plaintiff, while in the employ of the

United States at the Mare Island Navy Yard, filed an application

with the United States Patent Office for letters patent on certain im-

provements in oil burners, upon which application there were granted

to him, under date of July 1, 1913, United States Letters Patent No.

1066161, a copy of which is by reference made a part hereof as Ex-

hibit B.

6 The proceedings in the Patent Office upon said application

are shown by the file wrapper and contents of the case, a copy

of which is by reference made a part hereof as Exhibit B-1.

IV.

In the successful burning of oil for fuel the oil must be atomized;

that is, reduced to the form of fine spray, to permit of its admixture

with the proper amount of air necessary for combustion; and at the

time of the filing by plaintiff of his said applications for letters pat-

ent there were, as appears from the prior art hereinafter disclosed,

two general types of oil burners in use for the firing, or heating, of

boilers or furnaces. These types differed in the method of the atomi-

zation of the oil, and were generally known and referred to as “ me-

chanical atomizers ” and “ steam atomizers.”

In the mechanically atomizing burner the oil was atomized by

purely mechanical means by being projected, under great pressure,

from the burner into the furnace in a whirling cone-shaped film,

which almost immediately developed into a fine spray, air for com-

bustion being admitted through a surrounding air register and be-

coming more or less intimately intermixed with the oil spray.

HARRY B. STILZ VS. UNITED STATES. 5

In the so-called steam atomizer burner there was a combination

with the stream of oil, while yet within the burner proper, of a

stream of steam, or of air or other gaseous fluid under pressure, for

the purpose of aiding in the atomization of the oil, the air for com-

pustion being admitted and intermixed with the oil spray as in the

case of the mechanically atomizing burner.

V.

In the prior art to which the plaintiff’s said Letters Patent No.

945873 relate there were, among others, the structures disclosed by

the following patents and publications, which are hereby made a part

of these findings of fact as Exhibits C-1 to C-17, inclusive:

1. British patent No. 2414, to Norton and Hawksley, Aug. 22,

1867—Exhibit C-1.

2. U. S. patent No. 391865, to Schutte, Oct. 30, 1888; application

filed Nov. 5, 1887—Exhibit C-2.

3. U. S. patent No. 481088, to Chaney and Wires, Aug. 16, 1892;

application filed Jan. 12, 1892—Exhibit C-3.

4. British patent No. 17938, to Rusden and Eeles, July 25, 1896;

application filed Sept. 25, 1895—Exhibit C-4.

5. U.S. patent No. 584951, to Moore, June 22, 1897; application

filed Nov. 21, 1896—Exhibit C-5.

- 6. U.S. patent No. 629338, to Chelimsky, July 25, 1899; application

filed Nov. 29, 1898—Exhibit C-6.

7. U. S. patent No. 630320, to Billow, Aug. 8, 1899; application

filed June 28, 1898—Exhibit C-7.

8. U. S. patent No. 638340, to Kermode, Dec. 5, 1899; application

filed Dec. 5, 1898—Exhibit C-8.

9. British patent No. 24021, to Carr, Oct. 22, 1903; application filed

Nov. 3, 1902—Exhibit C-9.

10. United States naval report, “ Liquid Fuel,” published in 1904,

pages 70 to 100, 215 to 270, and 320 to 363—Exhibit C-10.

7 11. British patent No. 15269, to Kermode, July 8, 1905; ap-

plication filed July 8, 1904—Exhibit C—11.

12. British patent No. 3089, to Armstrong, Jan. 19, 1905; applica-

tion filed Feb. 8, 1904—Exhibit C-12.

13. British patent No. 10326, to Meyer, Jan. 24, 1907; application

filed May 2, 1906—Exhibit C-13.

14. U. S. patent No. 903736, to Lee, Nov. 10, 1908; application

filed Aug. 15, 1907—Exhibit C-14.

15. Blue print of drawing of Bureau of Steam Engineering, Navy

Department, Washington, D. C., Jan. 6, 1908, No. “ 11-Y-130,” sheet

1—Exhibit C-15.

16. Londen, England, publication, “ Engineering,” of June 19,

1908, pages 805 to 808—Exhibit C—16.

17. Photographic copy of drawing No. “ 11-Y-139,” Department

of Steam Engineering, Navy Yard, Norfolk, Va.—Exhibit C-17.

6 HARRY B. STILZ VS. UNITED STATES,

VI.

In the prior art to which the plaintiff’s said Letters Patent No,

1066161 relate, there were, in addition to the structures shown by the

patents and publications set forth in Finding V, as Exhibits C-1 to

C-17, the structures, or devices, disclosed by the following patents

and publications, which are hereby made a part of these findings of

fact as Exhibits D-1 to D-9, inclusive:

i. French patent No, 396292, to Corneuve; application filed Oct.

4 1908; delivered Jan. 22, 1909; published Apr. 6, 1909—Exhibit

:

2. French patent No. 396476, to Pages; application filed Jan. 27,

1908; delivered Jan. 28, 1909; published Apr. 13, 1909—Exhibit D-2,

3. Blue print of drawing No. “A 643” by Schutte & Korting Oo,,

Philadelphia—Exhibit D-3.

4. French patent No. 396955, to Normand; application filed Dee,

1, 1908; delivered Feb. 9. 1909; published Apr. 26, 1909—Exhibit

D4.

5. British patent No. 20653, to Bevis, Oct. 1, 1909, application filed

Oct. 1, 1908—Exhibit D-5.

6. British patent No. 15747, to Laing, Aug. 8, 1910; application

filed July 6, 1909—Exhibit D-6.

7. U.S. patent No. 1020048, to Normand, Mar. 12, 1912; applica-

tion filed Nov. 11, 1909—Exhibit D-7.

8. U. S. patent No. 1025279, to Laing, May 7, 1912; application

filed Feb. 16, 1910—Exhibit D-8.

9. U. S. patent No. 1023707, to Anthony, Apr. 16, 1912; applica-

tion filed June 1, 1910—Exhibit D-9.

Vil.

Since the granting to the plaintiff of his said Letters Patent Nos.

945873 and 1066161, and subsequent to February 16, 1916, there have

been manufactured or used by the United States oil burners and

equipment alleged by plaintiff to infringe his said letters patents of

the type and character shown by the following blue prints and photo-

graphic copies of drawings, which are hereby made a part of these

findings of fact as Exhibits E-1 to E~-7, inclusive:

8 1. Blue prints of tuyere and burner for “U.S. T. B. de

stroyers,” Bath Iron Works, Bath, Maine; file Nos. 0294 and

0295—Exhibits E-1 and E-2, respectively.

2. Blue print of Navy “ Bureau standard natural forced draft air

register,” file No. 414; and photoprint of “ Bureau standard natural

forced draft register "—Exhibits E-3 and E-4, respectively.

3. Blue print showing “Atrangement of Yarrow boiler,” file No.

0118; and photoprint of “ Bureau standard register (Cramp modi-

fication) "—Exhibits E-5 and E-6, respectively.

4. Photoprint of “ Peabody register and burner ”—Exhibit E-7.

As appears from said exhibits and other evidence in the case, said

oil burners and equipment provided for the atomization of the oil

= ‘; ng TT St a> ee ey oh e

EB EI EL ESB EE EINE SILL ELON AB ED

HARRY B. STILZ VS. UNITED STATES. 7

by means of its projection into the furnaces under heavy pressure

through spiral passages in the nozzle end of the burner in a whirling

cone-shaped film of oil, which almost immediately upon leaving

the nozzle of the burner developed into a fine spray. The air for

combustion was furnished under mild blower pressure in the furnace

yoom through an air register surrounding the burner and burner

opening into the furnace, this air register being provided with vanes

or other means for giving the air a whirling motion to facilitate the

intermixture with the oil spray around and into which it was dis-

charged, the oil and the air being whirled in the same direction./ No

steam, air, or other gaseous fluid was introduced into or used in the;

burner proper for any purpose nor used with any part of the equip- |

ment for the atomization of the oil, the air supplied through the air

register encircling the burner proper being for supplying the oxygen }

sary for the combustion of the oil. —

Vill.

The claims of the plaintiff’s said letters patent, for infringement

of which recovery is sought by plaintiff in this suit, are claim 2 of

Letters Patent No. 945873 and claims 1, 6, and 7 of Letters Patent

No. 1066161.

IX.

The devices of said Letters Patent No. 945873 are illustrated by

the patent drawing reproduced and shown in the appendix hereto.

Figure 1 of the drawing is a sectional elevation through the nozzle

and connections at right angles to the axis of the nozzle. Figure 2

is a section through the axis of the nozzle. Figure 3 is a plan view

of the burner with a part of the furnace shown in section, and it also

shows’the circular air register attached to the end of the furnace,

through the center of which the oil is projected from the nozzle of

the’ burner into the furnace, and through the ports of which, 14, the

ait for combustion passes into the furnace.

The invention provides for the use of steam, air, or other gaseous

fluid under pressure in the following manner, as an aid in the atom-

ization of the oil. Referring to the drawing, oii under heavy pres-

sure passes through the supply pipe 9, filter 8, and port 4 and is

discharged tangentially into the annular space of the nozzle, between

the outer casing 1 and the center plug 2, thus giving the oil

9 a rotary motion in the nozzle. The steam or other fluid under

pressure passes through the pipe 10 and port 5 and is also

discharged tangentially into said annular space of the nozzle, in the

same direction as the oil, with which it rotates and mixes, disinte-

grating or atomizing the oil, which issues from the orifice 3 of the

nozzle at a high velocity through the air register and into the furnace

in a cone-shaped film and spray. Air for combustion is supplied

through the ports 14 of the air register, the air encircling and mixing

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8 HARRY B. STILZ VS. UNITED STATES,

with the oil spray in the air register, and in the furnace, where com-

bustion takes place.

Claim 2 of this patent, alleged by plaintiff to be infringed by the

United States by the manufacture or use of the devices specified and

described in Finding VII, reads as follows:

“A nozzle having a restricted discharge orifice and independent

inlets for a gaseous fluid and a liquid, there being a passage from

each of said inlets to the discharge orifice, said passages having a

portion in common which forms a mixing chamber, and each of said

/ passages being arranged to produce a rotary motion in the fluid

[__ passing therethrough toward the discharge orifice.”

The patent drawing illustrating the devices of plaintiff's said

Letters Patent No. 1066161 is shown in the appendix hereto. Figure

1 of the drawing is a longitudinal section through the burner end

of a furnace 1, equipped with an air register 4 and burner 7. Figure

2 is a transverse section of the furnace on line 2-2 of Figure 1,

Figure 3 is a transverse section through the nozzle of the burner.

Figure 4 is a central longitudinal section through the nozzle.

The devices of this patent also provide for the use of steam, air,

or other gaseous fluid under pressure as an aid in the atomization of

the oil, but in a different manner from that provided by the devices

of patent No. 945873, the operation here being as follows:

Referring to the drawing, oil under heavy pressure is forced

through the pipe 9, spiral 15, and orifice 14 into and through the

front of the annular space 18, between the inner casing 12 and outer

casing 17 of the nozzle, in a rapidly rotating cone-shaped film. The

steam, air, or other fluid under pressure passes through the pipe 10

and is discharged tangentially into the said annular space 15, rotat-

ing around in it and toward the discharge outlet 19 in a whirling

layer. The oil leaving the inner orifice 14 in a conical film or spray

is struck by the rotating steam before it passes through the outer

orifice 19, which steam aids in the atomization of the oil.

Air for combustion is supplied through the ports 5 of the circular

air register 4 attached to the furnace front, and through the center

of which the oil is projected from the nozzle of the burner into the

furnace in a cone-shaped spray, the air from the register flowing in

all around the oil spray and mixing with it in the register and in the

furnace, where combustion takes place.

XI.

% It does not appear that any of the devices of the plaintiff's said

Letters Patent No. 945873 and No. 1066161 have been manufactured

or used by the United States or that said letters patent have been

infringed by the United States.

10 XII.

It does not appear from the evidence whether the plaintiff gave

to the public the notice required by section 4900 of the U. S. Revised

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HARRY B. STILZ VS. UNITED STATES. 9

Statutes as to the devices of his said letters patent being patented,

or that he at any time during the alleged infringement of said letters

patent for which recovery is sought by him notified the defend-

ant of such alleged infringement.

XIII.

At the time of the filing of the plaintiff’s petition in this suit

there were pending in the United States District Courts for the

Southern District of New York and the Eastern District of Penn-

sylvania, respectively, suits by the plaintiff against the Babcock and

Wilcox Company, of New York City, and the Schutte & Koerting

Company and the Bethlehem Shipbuilding Corporation, of Phila-

delphia, Pa., for an injunction against each of the defendants in

said suits and an accounting by them for profits for alleged in-

fringement by them of the plaintiff's said Letters Patent No. 1066161

in the manufacture and sale by them of certain oil burners, some of

which were alleged to have been sold to the United States Navy for

installation and use on naval vessels of the United States.

It appears from the evidence that the suit against the Babcock &

Wilcox Company was pending in the court as late as February 14,

1922, and the suit against the Schutte & Koerting Company and the

Bethlehem Shipbuilding Corporation as late as January 22, 1923;

and it does not appear that either suit has yet been dismissed or

otherwise finally disposed of in said courts.

Conclusion of law.

Upon the foregoing findings of fact the court decides, as a con-

clusion of law, that the petition herein should be, and the same is,

dismissed.

i aS

HARRY B. STILZ VS. UNITED STATES,

APPENDIX.

H. B. STILZ.

OIL BURNER.

APPLIOATION FILED SOY. 18, 1908.

945,873. Patented Jan. 11, 1910,

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13 Opinion.

Boorn, Judge, delivered the opinion of the court.

The plaintiff brings this suit to recover for an alleged infringe.

ment of his patents. The case is here under thé act of July 1, 1918,

40 Stat. 705, and compensation is sought for infringement of claim

2 of patent No. 945873 and claims 1, 6, and 7 of patent No. 1066161,

The patents involved relate exclusively to oil burners. The plaintiff

was granted Letters Patent No. 945873 on January 11, 1910, and

Letters Patent No. 1066161 on July 1, 1913.

The pertinent inquiry, in fact, the crux of the issue, depends

entirely upon whether the plaintiff’s patents, in view of the prior

art, are entitled to a broad construction, at least sufficiently broad to

cover the devices used by the defendant, for it must be conceded that

in all respects the devices are not identical, and unless the plaintiff

may by the record in the case establish a user of a device, upon the

mechanical construction of which his claims may be read, he may

not recover.

It is a well-known and long-established precedent that where the

prior art has inevitably narrowed the field of invention, and a

patentee thereafter projects himself therein, and does no more than

accomplish in a new and novel way a result long since accomplished,

he can not assert the right of a primary patentee to extend his

patent beyond the express limitations of his claims. Singer Manv-

facturing Co. v. Cramer, 192 U.S. 265.

Beginning in 1899, and from thenceforward, as shown by the

numerous inventions set out in the findings, many inventors turned

their attention to oil burners. The patents without exception dis-

close two essential elements, not to be dispensed with in all devices

to be employed as oil burners, i. e., the element of atomization and

the admission of air to cause combustion. The inventors, therefore,

were and have been continuously employed in conceiving a device

which would so function as to produce the greatest efficiency ia this

respect. The plaintiff dedicated to this purpose his t\.o inven-

tions. His first improvements, for which he secured Letters Patent

No. 945873, is precisely stated in his specifications as intended to

accomplish a fourfold purpose—first, “to construct a burner which

will efficiently burn any of the different kinds of fuel oil used in

practice; second, to reduce to a minimum the amount of air or

steam used as an atomizing agency when starting the flame; third,

to produce an oil spray which, when under normal firing condi-

tions, will be sufficiently atomized to cause perfect combustion with-

out the aid of an external atomizing fluid; and fourth, to render

the system simple and easily accessible for. cleaning.” The device

which was brought into existence to bring about these contemplated

results was expressly designated by the inventor “to be an improve-

ment in oil burners in which the oil is atomized principally by

mechanical means.” Claim 2 of the above patent, the only one

alleged to be infringed by the defendant, is somewhat general in

LE TL IE St LTE LL LRN MTT T LRN IEE S ARAINS AM

HARRY B. STILZ VS. UNITED STATES. 13

language, but when read in conjunction with the specifications and

detail references to the drawings, it is manifest that the inventor

was claiming novelty for a device so constructed as to produce a

higher degree of atomization than the old devices had produced by

purely mechanical means. The claim recites: “A nozzle hav-

14 ~—Ss ing a restricted discharge orifice, and independent inlets for a

gaseous fluid and a liquid, there being a passage from each of

said inlets to the discharge orifice, said passages having a portion in

common which forms a mixing chamber, and each of said passages

being arranged to produce a rotary motion in the fluid passing there-

through toward the discharge orifice.” The plaintiff does not con-

tend that a restricted discharge orifice in an oil-burner nozzle is new;

neither may he assert that producing atomization by a violent whirl-

ing motion is new. As a matter of course, in any device there must

at least be a passage for the introduction of oil, so the improvement

designed is necessarily restricted to the creation.of a device so con-

structed that oil and steam may enter simultaneously at varying

Iagrees Of PISS IMO We nisin chamber Ne Constructs, so that

he may not only add to the velocity of rotation produced by me-

chanical means, but appreciably and effectively in disintegrating

e oil and producing a much more perfect atomization of the same.

While this may not be said to be a strictly mechanical device, still if

you remove the element of gaseous fluids introduced in the mixing

chamber you have the old mechanical method, old _in the art, and

the one the inventor was intending to improve. “We can not escape

this construction of the claim, because the plaintiff says in his speci-

fications: “ When starting the combustion, however, conditions are

such that auxiliary means are useful to bring desired results. At

this stage the oil should preferably be diluted with air, steam, or

other gaseous fiuid, which affords an additional agency for not only

inducing a strong current of air supply, but also for distributing the

atomized oil through a large volume.” The auxiliary means em-

ployed to improve the old mechanical process was the introduction

tangentiafly into the mixing chamber of the gaseous fluids as de-

scribed for the express purposes hereinbefore alluded to. If the

Government did not use this device, it is not an infringer.

In 1913 the inventor, a distinguished and expert mechanic, again

secured Letters Patent No. 1066161 for improvements in oil burners,

and it is now insisted that claims 1, 6, and 7 of this patent were

infringed by the defendant. The imperfections, among many others,

which he was seeking to remedy in the last device, as appears from

the specifications, was the apparent inability of the old device to

so atomize the oil that it might be readily ignited in the combustion

chamber on a cold morning without producing too great a volume of

smoke, and that certain qualities of oil, particularly California oil—

of which State the inventor was a resident—could not be readily

heated so that it would flash into a vapor upon delivery from the

nozzle, where mechanical means of atomization were alone employed.

Another serious defect of the old inventions was the restricted de-

PRA ESTE ep EM SS aoe WER ace than te pe MIG Sue Re NLM oe Sot eae ee Nine hee tice a geo

| 14 HARRY B. STILZ VS. UNITED STATES. |

livery orifice, which because of its size was subject to choking up. Tp

overcome these apparent defects the plaintiff designed a device which

retained the idea of a mixing chamber, but completely reversed the

: method of accomplishing the result. Instead of introducing the

gaseous fluids into the chamber immediately surrounding the means

adopted to produce a whirling motion, and there mixing the oil and

gaseous fluids prior to their discharge through the restricted ori-

fice, a separate casing was attached to and entirely surrounding the

nozzle, with a much larger_[nt still restricted orifice, concentrically

located as to the smaller one, into which the gaseous fluids

15 are introduced, passing through the casing in a whirling mo-

tion, thereby securing the coveted heating and greater atomi-

zation of the oil after it leaves the small and first restricted orifice,

resulting, as claimed, in a much expanded triangle of vaporization

and greatly improved atomization, and facilitating the use of any

quality of fuel oil.

We set forth claims 1, 6, and 7 in the margin.’

Claim 1 covers in detail the detached device, and claims 6 and 7

the identical device in combination with a furnace. Reading the

claimis involved in the light of the specifications and the prior art,

it is not for us to say in this litigation that the plaintiff failed in

any particular to reach the goal he set out to negotiate. Granting

the validity of all he claims, it must be conceded that if a user is

content with a device falling short of attaining the perfection the

‘patent in suit attains, we can not hold him responsible as an infringer

J if he does not trespass upon the newer and improved device by adopt-

ing its mechanism to attain the desired end. Neither may we do s0

if the alleged infringer attains by anoAter and distinct device the

very same result, if the art is so narrow as to preclude the assertion

V of a claim for more than an identic device to accomplish a purpos

long since accomplished and old in the art. The plaihtiff’s patents,

as we conceive them, are, so far ‘as the record discloses, admirably

J adapted to secure an improved degree of atomization of fuel oil

The wiethod he points out sets before the public a device Which

utilizes the in ble to be utilized, agenciés well knowh

: and a e , to attain improved atomization and fuel combis-

tion and afford a practical oil burner, but we are unable to perceive

that the plaintiff has done more than this. The history of the pat-

ents in the Patent Office is confirmative evidence of this fact. Froi

an already crowded art he evolved a distinct device, differing in

“th. * having a small : mediately adjac

pet ¥—. I~ y motion fea liquid Aula pote thecsthroagh, ac

surrounding said nozzle and having a ge concentric with

fluid passing through the space within said

f

tr cotar said port in u whicling current. 3

“6. In combjoation,’« furnace having an shmteiee hole through its casing, a nonale

means e., oT pole of oil from a round hy ;

orifice furnace m su Dn ozzle

sessing dscns of Yascons Bond aincced to be fo ipenetrate eld fin of

HARRY B, $TILZ VS. UNITED STATES. 15,

some important particulars from previor:s ones, For this device he,

To

ich secured letters patent, and unless the defendant seizes upon his

the patented device and takes advantage of the new and improved

the ffi] essential functioning elements of his device, it is not an infringer

Ans of the same. Greene v. Buckley, 135 Fed. 520.

nd If we are correct in the foreging conclusion, the defendant is

r- innocent of infringement, The defendant in its devices does. not,

the | and has not for a period antedating the granting of plaintiff's

lly tent, used steam. or other gaseous fluids in the process of antomi-

ids zation. The defendant made and used a device. designated in the art

no- + as a mechanical oil burner, and in this device atomization is the

m- result of mechanical means. The defendant’s oil nozzle is devoid of

ice, any casing attached thereto, and it does not employ a mixing

ton chamber where the oil and gaseous fluids are mixed, prior to

ny % discharge into the combustion chamber. Atomization in the

defendant’s device is produced by pressure and the rotation

of the oil as it issues from the nozzle unaided by any extraneous

d 7 gaseous fluids introduced into the nozzle or attached casing. We

the need not, speek in detail of means employed to use air for combus-

art, tion. Both employ an air register, manifestly old in the art. The

in record furnishes ample room for the statement that what the de-

ing fendant made and used, and is now using, is substantially the old

' is mechanical oil burner without the improvements claimed for in

the plaintiff's letters patent.

ger We have not been able to illustrate the defendant’s device, as we

»pt have the plaintiff’s, because the size of the drawings, preclude their

) 80 reproduction, at any reasonable expense. Se we must be content with

the making the same part of the findings by reference.

i6n A large number of authorities have been cited, in the briefs filed,

Ose It is quite unnecessary to review them in detail. The fundamental

principles of differentiation are obvious and elementary. The case

bly presents to us the one issue, adverted to in the beginning of this

oil. opinion. We have been unable after mature deliberatiqn to escape

‘ich | the conclusion that the. plaintiff’s claims to invention may, not, under

7 the law be accorded a wider scope than the bringing into existence.

Ww

of NDOT eS eo OTe eet art, well Rrown ta the public,

sive h= in settled use, That the defendant did not make or use this

identic device as improved is apparent from a mere examination. of

its exhibits, It seems to us impossible to, read. the claims of the

plaintiff’s patent infri upon. the mechanical con-

struction of the defendant’s device.

~ There are several othen defenses interposed to the plaintiff’s right

of recovery, We have given them consideration, but regard it as

unnecessary to discuss them in view of what has been said. It would

not do ta say they are entirely without merit, hut inasmuch as the

issue may be determined without, recourse thereto, we have deemed

SS

-

i

aa: EERE |

»”

ne Of it unnecessary to prolong this opinion.

4 The petition will be dismissed. It is so ordered.

Granam, Judge; Hay, Judge; Downey, Judge; and CaMpseELt,

Chief Justice, concur.

_M

16 HARRY B. STILZ VS. UNITED STATES,

17 VII. Judgment of the Court.

At a Court of Claims held in the City of Washington on the Sever

teenth day of December, A. D. 1923, judgment was ordered to be

entered as follows: i

The Court, upon due consideration of the premises, find in favo

of the defendant, and do order, adjudge, and decree that the plain.

tiff, as aforesaid, is not entitled to recover and shall not have and

recover any sum in this action of and from the United States; and

that the petition herein be and the same hereby is dismissed.

By tHe Court. |

VIII. Plaintiff's application for appeal.

Filed Jan. 21, 1924.

The claimant, Harry B. Stilz, makes application to the Honorable

Court of Claims for an appeal of the case. Harry B. Stilz vs. The

United States, No. B-25, to the Supreme Court of the United State

Harry B. Sriz, Claimant, |

IX. Order allowing plaintiff's application for appeal.

Filed Jan. 28, 1924.

Ir 18 ORDERED BY THE Court that the plaintiff’s application for

appeal be and the same is allowed. a

By tue Court. ~

18 Court of Claims of the United States.

[Title omitted. ] 4

I, F. C. Kleinschmidt, Assistant Clerk Court of Claims, certify:

that the foregoing are true transcripts of the pleadings in the abov

entitled cause ; of the findings of fact (as amended), conclusion of

law and opinion of the court by Booth, J.; of the judgment of the”

court; of the plaintiff’s application for appeal; of the order of th

court ‘allowing said application. 4

In TESTIMONY WHEREOF I have hereunto set my hand and affixe

the seal of said Court at Washington City, this second day 0

February, A. D. 1924. a

[ SEAL. ] F. C. Kizrscumivr, q

Assistant Clerk Court of Claims.

{isidiodieinint on cover:] File No. 30,140. Court of Claims. Te

No. 830. Harry B. Stilz, appellant, vs. The United States. File

February 21, 1924. File No. 30,140.

O