Appendix — Triplett v. Lowell

35

APPENDIX A.

Patented Nov. 14, 1922. ‘1,435,199 >

UNITED STATES PATENT OFFICE.

LEWIS VAN DEVENTER BLAIR, OF CHICAGO, ILLINOIS, ASSIGNOR

TO THE MANTLE LAMP CO. OF AMERICA, OF CHICAGO, ILLINOIS.

HEAT-INSULATED RECEPTACLE.

Application filed October 29, 1919. Serial No. 334,212.

To all whom it may concern:

Be it known that I, Lewis Van Deventer Bian, a citi-

zen of the United States, residing at Chicago, in the

county of Cook and State of Illinois, have invented cer-

tain new and useful Improvements in Heat-Insulated Re-

ceptacles, of which the following is a specification.

The invention relates to receptacles of the heat-insulated

non-vacuum type, objects thereof being to economically

produce relatively large recepiacles, to render such recep-

tacles sanitary and easy to clean, to improve the insulation,

to provide means fdr easily and pernianently assembling

and uniting the component parts, and to minimize the trans-

mission of shocks to the inner vessel or container which,

being preferably composed of glass or other frangible sub-

stance, is likely to be broken if means for its protection

from extraneous shocks are not utilized.

The invention will be best understood by referring to

the drawing constituting a part of this specification in

which Figure 1 is a view in elevation with portions broken

away to show the lower parts of the outer jacket and the

container with which a receptacle made in accordance with

the invention is to be provided; and Figure 2 ‘is a sec-

36

tional view of a portion of such a receptacle showing the

construction of the upper parts thereof on a larger scale.

The outer jacket, 1, is made of at least two parts, a lower

cylindrical section, 2, having a bottom, 3, and an upper

cylindrical section 4, which terminates in a threaded neck,

d, having an inturned flange, 6. These two sections, 2

and 4, which are preferably of metal or other non-frang-

ible substance, are united by a substantially air-tight and

water-tight spun joint, 7, consisting of an outwardly-turned

‘bead, 8, on one section and an inwardly turned lip, 9,- on

the other section, said lip being spun over said bead and

being a continuation of a deflected portion, 10, of the upper

section which constitutes a shoulder. against which said

_ bead rests.

The inner ‘eahiliaass 11, may be made of glass or some

other vitreous substance, which, despite its fragility is em-

ployed because it is a poor conductor of heat and in order

that the interior of the container may be properly cleaned’

and insanitary conditions avoided. The container is pro-

vided with a neck, 12, the upper edge, 13, of which termi-.

nates under the inturned flange, 6, of the threaded neck,

5, to which it is bonded by a substantially infusible sub-

stance 14, of low heat conductivity. The bond may be in

part disposed between the necks 5 and 12, of the jacket

and the container which are separated to leave'a space,

15, whereby their only physical connection is through the

‘bond, 14, which on account of its low heat conductivity and

its consequent disability as a heat conductor is incapable

of transferring much heat from the container to the jacket

if the contents be hot,.or from the jacket to the contairier

if the contents be cold. The container should be silvered

to intercept radiant heat,. and, for corivenience of manu-

facture, is made of one piece of glass. The bottom of the

container is devoid of angles and is approximately of semi-

ey RRO ROD Ulcer

WS Lied eS tht

37

spherical form, the object being to avoid fractures which

are caused by unequal expansion of parts of vessels of

irregular shapes.

The bottom, 3, of the jacket is provided with a sabia

16, of. limited area to enable the receptable to rest upon

irregular surfaces without tilting and for reducing con-

duction of heat to: objects on which the receptacle may be

placed. ~

The stopper, 17, for the container, 1, is hollow and

' preferably made of glass, and it is provided with a rib, 18,

from which it may be sustained. The air may be ex-

hausted from the space within the stopper, or rarefied by

_ expansion before the stopper is closed. A gasket, 19, which

may be of rubber, is interposed between the rib, 18, and

the edge, 6, of the container to make a tight joint, to cushion

the surface thereof and to prevent any considerable heat

from being conducted to the stopper, 17. The eylindri-

~ cal outer wall, 20, of the stopper and the inner cylindrical

wall, 21, of the neck, 12, are separated by an annular-space,

22, to limit heat conduction and are ground to remove any

protuberances or irregularities which might, if present, in-

terrupt the continuity of said annular space, 22, and es-

tablish undesirable and excessive paths of heat condue-

tivity. The stopper, 17, is normally ont of contact. with

the contents of the container, 11, and hence all of the heat

which is conducted to the stopper must be transmitted

through the glass neck, 12, of the container which is of rela-

tively small cross-section and a poor conductor of heat.

If the stopper were not spaced from said neck, the in-

sulation would be appreciably impaired and the period of

heat retention would be somewhat shortened.

The stopper has a relatively small mouth, 23, which is

_ provided with an external bead, 24, and this mouth is closed

by a convex cap, 25, that is secured in position by a her-

vide as yen re i ga

As

a

Barb lea tak ape th ita lgids)

38

metical adherent seal, 26, extending over the edge of said’

mouth, and, if desired, over said external bead.

A cover,. 27, having a threaded. lower edge, 28, which

engages the threads of the neck, 5, of the jacket, 1, is pro-

vided with a centrally disposed cavity, 29, in its top wall

which cavity coincides with the convex é¢ap, 25, of the

stopper, 17, to thereby center said stopper and compel a

concentric disposition of said stopper and the neck, 12, of

the container, as well as to maintain the separation of

their adjacent surfaces.

. The receptacle i is ener with a bale, 30, to facilitate

its handling. a

The space between the jacket, and the container 11, is

filled with a comminuted substance 31, of poor heat con-

ducting properties, such as cork, and this substance: is

packed with sufficient density to prevent violent pendu-

lous movements of the container occasioned by shocks ad-

. ministered from without the receptacle, while permitting

the expansion and contraction and the slight bodily move-

~ ° ments of the container which are produced by changes of

temperature. The walls of the jacket, 1, and the container,

11, are spaced apart.a sufficient distance to prevent in,

dented portions of the ‘jacket from exerting pressure upon

or transmitting shocks to the frangible wall of the con-

tainer, and te admit of the dispersion of the force of ex-

ternal blows into the relatively thick protective- packing,

31, in order that said frangible wall may not be broken.

The distance between the walls of a vessel having substan-

tially a capacity of one gallon should be one inch or more,

and the packing should be such as to readily disperse

shocks. f

By employing a two-part jacket the manufacture of the

receptacle is greatly facilitated. The Various parts are

separately produced ready for assembling, whereupon the

-

' 39

' container is inserted into the top portion of the jacket

from below and. bonded thereto. The container is then

silvered by a well-known process and the coating of silver

covered by a film of protective paint. The packing is next

introduced, and. this part of the. assembling operation is

accomplished by telescoping a cylinder, 32, of paper. or

other poor conductor of heat into the section, 4, of the

jacket, 1, said cylinder being substantially coextensive with |

said jacket. The non-conducting filling, 31, is then placed

within said cylinder and packed in the desired degree,

whereupon the section, 2, of the jacket is slid over said.

_ eylinder and secured in position by spinning the lip, 9, over

the bead, 8.

The substance of which the bond is composed is, pref-

- erably, & prepared shellac which is fully described in United

States Letters Patent +1,309,967, granted to Simonson —

and Blair on July 15, 1919. This substance is of es-

. pecial utility as a bond inasmuch as it may be fused in situ

at a temperature which is lower than the temperature at

‘which glass fuses and, by sufficient heat treatment at nor-

mal pressures, becomes, exceedingly tenacious and perma-

* nently adherent to the neck of the jacket and the container.

The substance is ground before it is applied, and when

heated’ it fuses and becomes sticky and immediately at-

taches itself to the adjacent parts. Prolonged heating-

hardens it, renders it substantially insoluble in alcohol,

and materially raises or eliminate$ its melting point, so that

its durability as a bond is ensured. The tenacity of this ~

bond is such that it is capable of supporting the container

in its pendent position with the jacket without the aid of

adjunctive supporting devices. The filling’ between thé

jacket and the container is primarily employed as a shock-

absorber and an insulator, and for the purpose of pre-

venting the container from responding to external shocks ~

ee

40

‘which, if of sufficient intensity, would cause the container

to oscillate to such extent, relatively to the jacket, as to

fracture ‘its neck. Experiments have shown that the bond .

will remain intact and adherent to the parts even when

contiguous portions of the glass of the container are broken

by a shock.

y

It is important that the inner container be composed of

a substance which is a poor conductor of heat, so that

lt ll not be readily transmitted upward through the -

body of ‘the container to the outer jacket from which it is

suspended. Although the bonding material constituting the |

_ seal.is itself a poor conductor of heat, it is desirable to:

supplement its non- heat transmitting properties as much ©

., as possible. ; ——- pa

Having thus described my invention, what I claim is:

“Ll. A heat-insulated vessel ofthe non-vacuum type

having an outer. jacket of non-frangible material, an inner

container of frangible material, said inner container being —

bonded to and pendently supported from said jacket, and

heat-insulting and shock-absorbing means surrounding

said container for limiting oscillations of said container

while permitting expansion thereof by changes ‘of tem-

perature.

2. A héat-insulated vessel a a transversely divided

outer jacket of’non-frangible material, an inner container

of frangible material honded to the upper portion of said .

i jacket and pendently supported thereby, a lining disposed

within and substantially coextensive with said jacket, and

a comminuted body of heat insulating and shock-absorb-

ing material disposed between said container and said

lining for limiting oscillations of said container while per-

mitting expansion thereof by changes of temperature.

41

3. A heat-insulated vessel of the non-vacuum type, hav-

ing an outer non-frangible jacket provided with a neck

and consisting of a plurality of parts united by a circum-

ferential spun seam, a strong inner ‘frangible container °

having a neck which is sealed to the neck of said jacket,

and a packing of shock-dispersing and heat-insulating ma-

terial enveloping said container and of sufficient thickness -

to prevent indentations or distortions of said jacket from

exerting a breaking ‘pressure on said container, whereby

oscillation of said container is limited and expansion there-

of by changes of temperature permitted.

4. <A heat-insulated vessel of the non-vacuum type hav-

ing a non-frangible outer jacket, an inner frangible con-

tainer, and a bond uniting said jacket and said container at

their upper ends and sustaining said container in a pen-

dent position within said jacket, said jacket and said con-

tainer being sufficiently spaced to prevent indented or dis-

torted portions of said jacket from touching said container.

5. A heat-insulated vessel of the non-vacuum type .hav-

ing a two-part outer jacket, an inner container of non-cor-

rosive material bonded directly to and pendently sustained

by said outer jacket, artd a comminuted packing, disposed .

around said container to limit pendulous movements of

| _said container while permitting expansion and contrac-

tion thereof by changes of temperature.

Se £& heat-insulated vessel having a non-frangible outer

jacket provided with a top portion and a bottom portion

each formed with a cylindrical wall and united by a cir-

cumferential joint, ‘and an intergral non-corrosive inner

container united to said top portion by an adherent bond, ’

‘and supported by said bond i ina pendent position. '

7. - A heat-insulated vented consisting of a divided outer .

‘jacket, a single-wall container, a bond directly uniting the

eV

ate ei > ota

~

tops of said jacket and said container and sealing the space

within said jacket, and cushioning means, said cushioning

means substantially filling the space between said jacket

and said‘container and having low heat conductivity for

insulating said container and for limiting pendulous move-

ments thereof. |

8. A heat-insulated vessel having an outer jacket and

an inner container provided with ajmeck, a body of heat-

insulating material surrounding said container and-a clo-

sure for and engaging the neck of said eontainer and sepa-

rated from the inner wall of said neck by a heat-insulating

air space. |

9. -A heat-insulated vessel having an outer jacket and

an inner singlé-wall container provided with a neck, a body »

of heat-insulating material surrounding said container, a

closure for the neck of said container separated from the

inner wall of said neck, by a heat-insulating air space and

a heat-insulating gasket disposed between said neck and

said closure. |

10. <A heat-insulated receptacle of the non-vacuum type, |

including a multi-part‘outer jacket having an inturned por-

tion at its upper end, a single-walled strong inner frang-

ible container having a neck surrounded and laterally sus-

tained by said jacket, and resilient heat-insulating material -

disposed between said jacket and said container and extend-

ing from the inner wall of said jacket to the outer wall of

said container for limiting the oscillation of said container

while permitting expansion thereof by changes of tempera-

- ture.

11. A heat-insulated vessel of the non-vacuum type,

‘having a non-frangible multi-part outer jacket, an innér |

strong single-walled container of low heat conductivity

pendently sustained in and separated at all points from

—

Se

_—,

Ppa ant Ai Sa I A MN RO Ss i

.

43

said outer jacket by heat-irtsulating material which limits |

oscillation of said container while permitting expansion

thereof by changes of temperature. :

12. <A heat-insulated vessel of the non-vacuum type, hav-,

ing a non-frangible outer jacket, a strong inner single--*

walled frangible container of low heat conductivity pen-

: dently sustained in said jacket and separated at all points

below the point of suspension in said outer jacket by heat

insulating material for limiting oscillation of said container

while permitting penne thereof by changes of tem-

perature.

_ 13. A heat-insulated senptiede of the non-vacuum type,

including a non-frangible outer jacket,.a strong inner vitre-

ous container supported in the upper portion of said outer

jacket, and a comminuted heat-insulating material disposed

between said jacket and said. container for limiting oscil-

lation of said container while permitting expansion thereof .

by changes of temperature, said container having sufficient

opacity to substantially conceal said insulating material.

14. A heat-insulated receptacle of the non-vacuum type,

having a non-frangible outer jacket, a strong inner single-

walled container of frangible material, said inner container

being pendently sustained in said jacket, and heat-insulat-

ing and shock-aborbing means surrounding said container

for limiting. its oscillation while permitting expansion

thereof by changes of temperature.

15. A heat- insulated receptacle including an inner vitre-

ous container, a sectional outer jacket, heat insulating ma-

terial disposed between said container and jacket,.and a

retainer for holding said insulating material in place pend-

ing the placing in position of a section ef the outer jacket.

16. A heat-insulated receptacle of the non-vacuum type,

including an outer non-frangible jacket, a strong inner —

44

vitreous container supported in the upper portion of said

jacket, and heat insulating matgr}al disposed between said

container and said jacket for Jimiting. oscillation of said

container while permitting expansion thereof by changes

* of temperature, said container having an outside coat- -

ing of silver to render it opaque and reflective of heat

rays.

17. A hent-dnadlated receptacle of the non-vacuum type,

including a multi-section outer jacket, a strong vitreous

_ single-walled inner container sustained in the upper por-

tion of said outer jacket, resilient heat-insulating material

disposed between said jacket and said container for limit-

ing oscillation of said container while permitting expansion

thereof by changes of temperature, one section holding a

cover, and a seal to prevent moisture from reaching said

insulating material.

18." A: heat-insulated receptacle of the non-vacuum type,

including a multi-section outer jacket, a strong vitreous

single-walled inner container ‘sustained in the upper por-_

tion of said outer jacket, resilient heat-insulating material

disposed between said jacket and said container for limit-

‘ing os~“Ilation: of said container while permitting expan-

sion thereof by changes of temperature, a screw-threaded

section for holding a cover, and a seal for preventing mois-

ture from reaching said insulating material. af

19. A heat-insulated receptacle including a multi-sec-

tion outer metallic jacket,'a vitreoxs inner container, heat-

insulating material disposed beffreen said jacket and said

container, and a vitreous stopper carrying a resilient gas-

ket, said stopper being retained \in position by a cup en-

gaged with a section of said outer jacket.

20. “A heat-insulated receptacle including a ‘multi-sec-

tion outer metallic jacket, an opaque vitreous inner con-

————

45

tainer, heat-insulating material disposed between said

jacket and said container, and a vitreous stopper having

a recess carrying a resilient gasket, said stopper being re-

tained in position by a cup engaged with a ‘ae of said

duter jacket. |

21. A heat-insulated receptacle of the non-vacuum type,

including a multi-section, outer jacket, a vitreous open-

mouth single-walled inner container sustained in the upper

portion of said outer jacket, resilient heat-insulating ma-.

terial disposed.between said jacket and said container for

limiting oscillation of said container while permitting ex-

pansion thereof by changes of temperature, and an in-

sulated stopper for closing the mouth of said container,

a section of said. outer jacket having means for holding

and vertically adjusting a cover.

22. A heat-insulated receptacle of the non-vacuum type,

including a non-frangible outer jacket, a strong inner frang-

ible container having a body portion and a neck, said

neck being held laterally by an upper part of said ‘re-

ceptacle, and additional means for laterally holding said.

body portion and for restricting. convective air currents

around said container, said means consisting of com-

minuted heat-insulating material surrounding said body

portion to thereby substantially — lateral. move-

ments of said body portion.

23. A heat-insulated receptacle of the non-vacuum type,

including a non-frangible outer jacket, an inner frang-

ible container having a neck, the neck ‘of said container

being laterally positioned by -an adjacent part of ‘said

jacket, and the body of said container being laterally sus- ©

: tained in the body of said receptacle by a mass of com- ¢

‘minuted heat-insulating material disposed in the space

between said bodies to restrict convective currents of air

therein and to limit the amplitude of pendulous movement

of the body of said container.

24. A heat-insulated receptacle of the non-vacuum type,

including a non-frangible outer jacket, a strong inner

frangible container positioned at its upper end by an ad-

‘jacent part of said jacket, and heat insulating material

disposed within said jacket, filling the space between said

jacket and said container and of sufficient density to sub-.

stantially: prevent *said container from whipping, vibrat-

_ ing or oscillating at its lower end. _

In testimony whereof he affixes his signature in the

presence of two witnesses. | ;

Lewis Van Deventer Biarr,

Witnesses:

Cart J. Powers,

B. E. Facror.

47

APPENDIX B

No. 3812

UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE SEVENTH Circuit -

Ocroser Term, 1926, Apri Szssion, 1927.

Macoms Manvuracturine Company, )

Appellant, Appeal from the District

VS. Court of the United States

for the Southern District

of Illinois, Northern Divi-

THe Mantz Lamp Company oF —"

AMERICA,

Appellee. ,

—_—_—————————SooeeeeeEeEeEeEeEeEeE———e

May 28, 1927.

Brrore ALSCHULER, Evans and ANpERSON, Circuit Judges.

Anverson, Circuit Judge: This is an appeal from a

decree holding patent No. 1,435,199, issued to the appellee

as assignee of Lewis Van Deventer Blair, valid, and claims |

1, 4, 5, 6, 7, 10, 11, 12, 13, 14, 17, 18, 21, 22, 23 and 24 there-

of infringed.

Appellee, in its brief, after differentiating ‘these 16

claims, says they ‘‘are not redundant, but define one’ or

|

48

another of the aspects of the invention.’’ 1 and 17 are

put forth ‘as ‘‘examples’’ of the claims.. These are:

_ 1. A heat-insulated vessel’ of the non-vacuum type,

having an outer jacket of non-frangible material, an

inner container of frangible material, said inner con-

tainer being bonded to and pendently supported from

' gaid jacket, and heat-insulating and shock-absorbing

means surrounding said container for’ limiting oscilla-

tions of said container while ‘permitting expansion

thereof by changes of temperature.

17.. A heat-insulated receptacle of the non-vacuum

type, including a multi-section outer jacket, a strong

vitreous single-walled inner container sustained in the

upper portion of said outer jacket, resiliefit heat-in-

sulating material disposed between said jacket and

said container for limiting oscillation of said container

while permitting expansion thereof by changes of tem-

perature, one section holdingjga cover, and a seal to

prevent moisture from reaching said insulating ma-

terial. |

The patent says: ‘‘The invention relates to receptacles

of the heat-insulated, non-vacuum type.’’ Such receptacles

are found in prior patents. We will therefore consider this '

- ease without reference to the heat-insulated, vacuum re-

ceptacles so common’ when the patent was issued.

a LEON Ve IED tO COT ASRS DS eT Oe oe rn o

eee TTT TT TE TEER LIN IROL NS ALP IMME APE MARE ge aN

After stating, in general terms, the state of the art at

the time of Blair’s application, appellee says: ‘‘The prob-

lem, therefore, which confronted Blair, * * * was the pro-

duction of a receptacle, without the intervention of a vac-

uum and of relatively large size, for the maintenance for

many hours of a desired high or low temperature of fo

or liquid contents, and of a better shock-resisting ch

acter.’’

LOPE LPLLTIS LLL IIL IA ORE ILO MIE SSAN GET AO Bt SSID ERIE AEA AGM BASS fap Pyare d Age

49 a

This problem, in the language of appellee, was solved

by the following means: : -

‘‘His receptacle includes a metallic protective Sadat

and a single wall container.”’

‘This container is fixedly and firmly connected at

- its upper end with the top of the outer metal sce -by

‘means of a bond. ”

‘‘The space ‘between the jacket and the ‘ieee of the

inner container, as distinguished from the neck por-

tion, contains comminuted material, which material

impedes the transfer of heat by induction between the

inner-container and the jacket and limits the pendu-

‘lous vibrations of the ‘container within the jacket.’’ .

‘‘Theeeomminuted matérial, if allowed to become

moist, would be a good condu¢tor of heat. But mois-

ture is kept therefrom by an inturned flange extend-

ing from the neck of-the jacket, which flange while

acting as a seal’also protects the frangible neck of the

container ‘and positions the container in the jacket

while the parts are being assembled. The means con-

stituting a bond and also acting as a seal, which hold

the neck of the container in place within the neck of

the jacket, also operates to prevent moisture from

reaching the comminuted material, in case moisture

should pass ie Se flange and the neck of the

container.’ wee

And appellee continues:

‘<Tt will thus be seen that all of the elements above

enumerated are tied together in a true combination

producing a single and useful result and that if any

one element, the jacket, the container, the spacing, or

the packing were omitted, or some’ sealing means were

not used to keep moisture away from the packing, and .

e .

‘i -a sre

— BoA LE NR NEE LEN IE LMI LS LEVEL ILE REIL EI AIEEE LAE AE LG NIA ROPES TES GH LTT ORNS

RO eta" ea ee cx z fs oe 7 3. ; 5 ees

: . 1 .

e ;

50

to pendently support*the container so that only one

path of heat conductivity is afforded, the device would

- not be such as efficiently to perform its intended funce-

tions.”’

The prior art discloses heat-insulated and shock-resist-—

ing receptacles of the non-vacuum type. Prior patents.

show each of the elements enumerated by appellee. We

need .only to call attention to three, which appear in the

record: No. 211,092, issued to Heath, January 7, 1879;

No. 358,732, issued to Clisbee, March 1, 1887; and No.

438,149, issued to Fox, October 14, 1890.

- Heath calls his invention ‘‘an-encased bottle,’’ and says:

‘‘the object sought for being the prevention of breakages

.during transportatiog’’ This is the shock-resisting object

of the patent in suit. Heath discloses an outer jacket, a

single wall container, spacing between the jacket and the

‘ container, and the packing*therein. The container had its

neck extended up through the jacket, and the jacket and

the ‘container connect or contact with each other only at -

the extreme .end of the neck. At no other point is the -

container in contact with the jacket. So far, Heath de-

scribes the constriction of the patent in suit.

Clisbee calls his invention an ‘‘insulated can,’’ and says:

‘‘The object of this invention is to furnish an improved

. insulated can for coffee and other beverages * * * so that

~ the liquid may retain its heat * * *.’’. Clisbee has the

outer jacket, the inner single wall container, the spacing

. between the. jacket and the container, the packing in the

spacing, and the neck of the container connecting with the

jacket at the upper end of the neck and nowhere else.

Blair positions these elements as they are positioned in

| Heath’ ‘8 and Clisbee’s patents.

NA a, ENE Te

‘ .

PEPE RT ROE NT ONE Oe > ee - } a — . a 9

-

51.

In these two patents we;have disclosed every element

claimed to be in the patent in suit, except the bond or

bonding means which appellee says holds the container

. firmly and fixedly, pendently positioned in the jaeket. This

use of a bonding means to thus hold the container firmly

and fixedly in its position, and also to prevent moisture

from getting into the. packing, is disclosed in the Fox

patent.

This Fox patent is for a carboy, and shows an outer

jacket, called a box or frame, a single wali container inside

the jacket with a neck extending up through the jacket,

and packing between the container and the jacket, and the

patentee says: ‘‘Around this neck of the carboy I tightly’

pack plaster-of-paris or other suitable material, as shown

‘at B (in the drawing), for the purpose of firmly holding

“the carboy in place, * * * and also for the purpose of ex-—

cluding moisture or water.’’ And, again: “B is a pack-

ing of plaster-of-paris or other suitable material, intended

to hold the carboy firmly in place within the box or frame

enclosing it and to exclude water or moisture from the

packing C.’’ - “t

Thus ‘we-have all the elements-in appellee’s clatms dis-:

closed in these three ,prior patents, each operating in its

old way and effecting its old result,.and the only question

to be decided is: Did it involve invention for Blair to take

the bond from Fox and the other elements from Heath or

Clisbee, or both of them, and assemble them in-one heat-

insulated, non-vacuum receptacle?

With Heath, Clisbee and Fox in the field—Heath and

Clisbee both showing (except the bond between the con-

tainer and the jacket) the construction adopted by Blair,

Heath’s object being shock resistance and Clisbee’s heat .

insulation, both using the same means and construction—

did it involve invention to take Fox’s bond and add’ it to

NTE Ree eT re NS ry morte REE Te eee Tres DELO PEP Oy

a2

Heath or Clisbee? We think this involved mechanical skill,

and not-inventive genius. In the language of- the Supreme

Court in Hollister v. Benedict :M fg. Co., 113 U. 8. 59, on

page 73, 5 S. Ct. 717, 724, (28 L. Ed. 901): ‘‘It is but

the display of the expected: skill of the calling, and -~

involves only the exercise of the ordinary faculties of

‘reasoning upon the material supplied by a special knowl-

edge; and the facility. of manipulation which results

from its habitual and intelligent. practice. ae. person.

| skilled in the art pertaining to heat-insulated receptacles

of the non-vacuum type, knowing what had been done be-

fore, and seeing these various elements porforming their

functions in the patents above mentioned, would not re-

quire a flash of genius to combine with the structures —

. shown by Heath or Clisbee a bond to hold the container

: in position and at. the same time prevent moisture from

getting into the insulating packing. aor:

We are not now concerned with the particular bond set -

forth in appellee’s patent, which says: ‘‘The substance of

which the bond is composed is, preferably, a prepared

shellac which is fully described in United States Letters

Patent No. 1,309,967, granted to Simonson & Blair on July

15,-1919.’’ If appellant used the bond described in that

patent, for such use the suit should be for its infringe-

- ment; but it is not claimed that appellant used this par-

¢ . . ticular bond. It used plaster-of-paris, or a mixture of

plaster- of-paris and cement or white lead,-none of which,

singly or combined, is the bond of appellee.

The result obtained. by Blair may be a better structure.

than was ever before produced, and yet, for the lack of

novelty of device, or new result produced, it may have no

patentable quality. He has assembled—combined, in the

_. ordinary sense—old and well-known elements, but he. has

not made an invention.

nr

Setesesd, with direction to dismiss the bill of complaint

for want of equity.

A true Copy; Teste. ene.

Epwarp M. Hotioway,

Clerk of the United States Circuit

Court of. Appeals eal the Sev-

_ enth Circuit. >

( Sean - +)

(United States Circuit Court)

(of Appeals, Seventh Cirtuit. )

Mieatee denied Dee. 5, 1927.

(\

No. 3889 ;*

UNITED STATES CIRCUIT COURT OF APPEALS.

_ FOR THE SEVENTH CiRcuIT

Ocroser TERM, 1926, Apri Sesston, 1927.

cme ncen.~ dar sine animiaaeee = —- —<—<———

Mowarcn Company, Inc. anp }) rey

Tuerm-A-Jua Company, Inc.

Appellants, Appeal from the District

Court of the United States

vs. . for the Northern District

‘ of Illinois, Eastern ‘Divi- -

THe Mantis Lamp ComMpPany OF — ~:

AMERICA, a ee |

Appellee. )

May 28, 1927,

Before AuscHu.er, Evan A. Evans, and ANnpErson,

Circuit Judges:

_ Anverson, Circuit Judge: Appellants filed suit against

appellee for unfair competition in the sale of heat-insulated

receptacles designed to keep hot liquids hot and cold liquids’

cold. Appellee filed a counterclaim charging that, plain-

tiffs, in making their receptacles, infringed patent No.

55

1,435,199, owned by appellee and cdnsidered in the case

of Macomb Manufacturing Co. v. Mantle Lamp Co., (No.

3812): 22. oF. (2d) 93, decided this day. ;

The court dismissed the bill of complaint for want of.

equity, upheld the counterclaim, and adjudged the patent

valid and infringed as to the same claims relied on in No.

3812. The only question presented upon the issue of un-

fair competition is whether the decree was right upon the

evidence. We have examined the evidence, and are satis-

fied that it does not warrant a decree for appellants upon

this issue. That part of the decree dismissing the bill of

complaint is affirmed.

But we cannot approve the decree upon the patent branch

of the ease. For the reasons stated in our opinion in the

Macomb Case, we hold the patent invalid. This part of

the decree is reversed, with direction to dismiss the coun-

terclaim. Costs shall be divided equally between the par-

ties.

APPENDIX D

ee .

=

Filed Nov. 3, 1931

John W. Menzies,

Clerk.

) | No. 2506 -

UNITED STATES CIRCUIT COURT OF APPEALS

Suts Circuir

THe Mantis Lamp CoMPANY oF )

Appeal from the District

AMERICA, ye

App ellant, Court of thé United States

v8. .( for the Northern District .

of Ohio.

Geo. H. Bowman Company,

oo Appellee.) .

’ (ll :

Decided November 3, 1931.

Before Denison anp Moorman, Circuit Judges,

_ and Simons, District Judge. . ) —

Denison, Circuit Judge: This is the usual patent in-

fringement suit, based upon the Blair patent, No. 1,435,199,.

of November 14, 1922, for a ‘‘heat insulated receptacle.’

It discloses the type now common onthe market, which

ote fA GNRMA,

57

_eomprises a large mouthed receptacle, holding a gallon

or more, insulated within an outer casing which is in the

- general form of a pail or a large bottle, and which effi-

ciently keeps a substantial amount of food or drink hot

or cold for several hours. ‘The patent was sustained in

the Monarch and the Macomb cases, in the Northern Dis-

trict of Illinois. (unreported), but these decrees were re.

versed by the Seventh C. C. A., (22: Fed. (2d) 93, 95),

and the patent was. held to be lacking im invention.

In the present case, the defendant filed an answer rely-

ing upon the former decision and setting up a long list

of earlier patents.‘ It did not take proofs and did not

appear at the final hearing in the court below., The plain-.

tiff voluntarily put in evidence all the patents set up in

the answer. The District. Judge felt obliged to follow the

earlier decision; and dismissed the bill. Upon this appeal

the defendant did not appear ; and we accept the assur-

ance: of plaintiff’s counsel that they know of no reason

for defendant’s default except lack of sufficient pecuniary

interest. At our suggestion, we have been furnishedswith

copies of the records and of the briefs-in the former cases, ‘

and have thus been quite fully informed. as to the proofs

and the contentions therein.

The modern art of efficient insulated receptacles for

domestic use seems to have been begun about 1907, with

the now very familiar thermos bottle, and with similar

structures known as ‘‘icy-hot’’, or by other names. These

comprised a double wall of glass with an intervening

vacuum; from necessities of manufacture they were very

delicate and fragile; and they had usually no greater

. capacity than one quart; though a two-quart size was made °

to some extent. Beginning about 1907, this vacuum type

for keeping liquids hot or cold, became exceedingly popu-

lar. The invention now involved was put upon the market »

-58

about 1918, under the trade name “‘ Aladdin.” It com- |

prised a much larger receptacle, holding from one up to

three or four gallons, and, by reason of its size and per-

missible large neck, was adapted to keep, hot or. cold not

only 4iquids but solid or semi-solid food. It was well

received and had large and increasing sales. Within a.

short -time, it and similar articles made by others, 4nd

which are said to be infringements, had established their

position ‘as practically a new article of manufacture, and

plaintiff was far and away the leader in the sales. Up until

the proofs were taken-it had sold over one million of them.

What Blair did, in substance, was to depart from the

vacuum type; to rely for his heat insulation upon a rela-

tively non-conducting packing between his outer and inner

walls; to use an outer casing made. of metal, whigh would ..

be strong enough to receive ordinary shocks, and an inner

container made of glass or some vitreous material that.

‘would allow the minimum of ‘heat to escape therefrom;

and. to unite the outer and inner casings at their upper

. or neck ends, so that the inner would be pendently sup- .

ported by the outer and so that the uniting means or bond

should also serve as an insulator against. heat or cold and

as a seal to exclude air or moisture fromthe packifg ma-

terial. He was thereby enabled to, and was the first who

did, put on the market a strong and satisfactorily efficient

- portable insulated jar or can, of relatively large size. There

was, of course, nothing new in having merely the outer

and inner vessels, with a packing between; but both the.

face of the patent and a review of the prior art and the

oral testimony, indicate that Blair’s useful novelty, which

is incorporated in several of the claims, and which we take

to be the dominant charactéristic of his invention, con-

sisted in hanging the inner container to the outer shell

at the upper extremity of each by a bond which was suffi- .

59

cient for this supporting function and which also served

- the essential insulating and sealing purposes. He was

thus enabled to avoid relying upon the packing material

' for supporting the inner container from below—a function -

which it could only imperfectly perform,—and to avoid

any extensive contact between the inner receptacle and the .

outer casing, whereby there would be any substantial chan-

nel for the escape-of heat. Obviously, the use of a bonding

material between the two instead of having any mechanical _

direct union, gave opportunity for interposing a compara-

tively non-conducting material. So far as the record in-

dicates, there is no material used by the plaintiff or by

infringers, which is suitable for this bond, which is not

also, in considerable degree, heat insulating.

Claim 1 is given in the note,’ andeis sufficient to siiteabe

_ the limits of the controversy. For the outer and inner

containers, the parties have not used any materials other

than metal for the outer and a vitreous or glasslike ma-

terial for the inner. -There is nothing to show that the

more generic terms, non-frangible and frangible, have prac-

tically any wider application which might extend the field

of prior use. The claim may, therefore; as well be read

as if it called for containers that were ary metal-

: lie and glassy. ee, :

_ The record leaves no doubt that Blair’s combination was

new, and its utility is demonstrated by the large sales and

x a . . -.

(ee a - ~

*A heat-insulated vessel of the non-vacuum type, hav-

ing an outer jacket of ‘non-frangible material, an inner’ |

container of frangible material, said inner container being

bonded to and pendently supported from said jacket, and

heat-insulating and shock-absorbing means surrounding

said container for limiting oscillations of said container.

while permitting expansion thereof by changes of tempera-

ture. |

SERIT S er t

‘ : 60

the adoption by infringers. The argument against valid-

ity, is that all the elements were old and there was no

‘invention in putting them together. The earlier existence *

of the, elements must be conceded; outer metallic casings

used with an inner glass receptacle and ‘with interposed

insulating packing were old; metal and glass had been

bonded together for some purposes .and-to some extent

by material which would adhere to each; and an inner

. receptacle of bottle shape had been hung by its neck from

the indrawn neck of an outer casing through mechanical.

_ direct contact. All these comstructions had defects which © ;

apparently had prevented them,—something had,—from. ~

going into general use. The packing interposed between

the outer and inner parts was certain to become, with use,

somewhat denser and to leave the inner imperfectly sup-

ported and subject to jar and breakage. If the inner -re-

ceptacle had its neck extended out so that it would rest

upon the outer casing, and might, e. g., be soldered thereto,

a ‘path was given for the escape of heat. By adopting the

plan of pendent support, Blair insured against failure of

» the interposed packing to support sufficiently, and by ef-

fecting this support by a bond between the two, rather than _

“by a mechanical union, and by using for the bond this

described material, or any other which has been found

effective for that purpose, he at the same time gave sup-

port, prevented the escape of heat and sealed out the air

‘and moisture from the packing. Further, this method of

bond support was mechanically more efficient and satis-

factory than the other methods which had been tried.

The substantial character of Blair’s step and its non-

obviousness, are demonstrated by the testimony. The

manager of a leading manufacturer of bottles of the ther-

mos or vacuum type, testifies that when they realized

__the demand for larger receptacles, they tried. to enlarge

— - “ ° s . . a

&

61

their thermos bottle, the ‘‘icy-hot,’’ using its method of

manufacture, and they found it impossible. The mechan-

ical difficulties of handling hot glass in the manufacturing

process, sp as to produce a large and heavy receptacle,

were insuperable. Thereupon, in the endeavor to make

an article to compete with the Aladdin, thén on the market,

without adopting the pendent-bond-support, they tried the

best plan they knew. They inserted between the two bot-

toms supporting springs, which would hold. the upper one

against vibration ‘and compensate for any settling in the

packing; but when they produced this article for the mar-

ket, they found the best they could do was to maintain the

temperature three or four hours, as against six or eight

for the Aladdin. The manager says: that for his own use

he discarded his own and bought an Aladdin. The attempt

to market this article was abandoned.

_ The manager at the time, of the McComb Company, one

of Blair’s chief early competitors and defendant in one

of thé Hlinois cases,. testifies in this record. The McComb

Company began. to ‘make this non-vacuum type in 1921

(the Blair patent application was filed in 1919) and sold

about 1500 of its devices, which had an earthenware con- |

tainer supported at the néck by the indrawn neck of the

_metallic easing. There was no bond or séal,—at least,

not in any effective way. This form did not satisfy the

market, after one seasén’s trial, it was eee and

-Blair’s patent-bond-support adopted.

The record in the Monarch case contains, in our view,

most, persuasiye: evidence that Blair’s advance step was

not ohe obvious to those skilled in this art. The Monarch

_ Company was engaged for two or three years in the effort

to make a satisfactory article te meet the need for a

larger and stronger ‘‘thermos. bottle.’’ Its mechanics,—

certainly skilled,—tried several different forms, marketed

62

some, abandoned them, and eventually came to and adopted

Blair’s pendent-bond-support form, a year or more after

the Aladdin. was on the market.. A summary of: this evi-

dence is in the note.’ |

We thus find that in accomplishing this combination of |

old elements to make a new market article, there had been

2In 1918 the Monarch Company. began its attempt to

develop the non-vacuum type so as to get a relatively large

container. It swwas without knowledge of Blair’s idea. It

used an ordinary Mason jar, packed in a casing with inter-

posed insulation and with a metal tube for filling and

emptying, extended from the jar cover up through the open

top of the outer container and soldered thereto. There

was thus (perhaps) the pendent support, but no combina-

tion of metal: and glass, by such a bond or support by that

bond, as Blair provided, and there was an obvious metallic

channel for heat escape. About the same time the Mon-

arch people made a second form, using an earthenware

container with a neck and a metallic outer jacket conically

drawn in at.its neck and closely surrounding the project-

ing earthenware neck, but there was no attempt at insula-

tion at this point between the two, or support of one by the

other, but for this support the interposed packing material

was relied upon. As this could not maintain resilience, »

the structure was certain to be inefficient as well as heat

conveying. They planned to manufacture this on a large

scale, but very soon discarded it. About July, 1918, they

tried a third form, upon which, in December, they filed an

application for a patent (later abandoned). This was like

the second form just described, except that spring sup-

ports were interposed between the two bottoms to hold the

inner container up in position (like the trial form experi-

mentally produced by the ‘‘icy-hot’’). This could hardly

be satisfactory; the springs could not hold the inner jar

motionless, there was no bond or seal at the necks, mois-

ture and air would enter the packing material and both the

direct contact of the two necks and the lower springs would

make troublesome heat conveyers. In March, 1919, they

63 o ;

not only the delay of thirty or more years since the old «

‘patents now said sufficiénfly to teach the combination

(though during most of this period there was no foreseen

public demand for a thing of this kind), but there had been,

after the demand was known, two or three years of effort

PEM OW BS PPT IE ON re eS da alee

filed another patent application on a fourth and slightly

different form. It lacked springs, but it had the other

- recited defects. They had not felt justified in trying ‘to

market any of these four forms. A fifth form, adopted

October, 1919, was put upon the market. ‘This was like

numbers 3 and 4, except that they endeavored to avoid the .

heat escape at the contact point of the two necks by inter-

posing a rubber gasket. There was no suggestion of bond

or pendent support. There was a form of sealing by this

gasket, but nothing to compel contact so as to make the

seal effective. During 1919 and 1920, they marketed some

7,000 jugs of this type, of which nearly half were returned

@as unsatisfactory. In the fall of 1920, they. substituted for

number. 6,°form number 7. This was an elaboration of

the rubber gasket idea. In addition, the inner jar was

pendently supported. at the neck by a screw thread engage-

ment with the cap which was in contact with the outer con-

tainer. Here again there was a heat losing contact be-

tween the inner and outer parts, and nothing resembling

a supporting insulating bond between the two. As a seal-

ing means, the rubber gasket. was inefficient because it

would be released whenever the cap was taken off. They

manufactured and sold this form with some success for

two years. ‘Just at-what time they had knowledge of the

Blair construction does not appear, but in 1923, they

abandoned number 7 and adopted the Blair idea of pend-

: ent-bond-support. They discarded their rubber gasket seal

: and separable two-part form of the outer casing; they

abandoned direct contact between the two necks, enlarged

the outer one so as to get an intermediate space, and filled

this in with a composition which was both bond and seal

and which caused the inner to be pendently supported by

and from the outer. | |

64

by Blair’s competitors to satisfy. it by using ‘their best

skill in various combinations other than his, and we see

that eventually one of them dropped out and the other two

were compelled to use Blair’s system of bond support for

the pendent inner container. Seldom is there a record of

failure by other things and success by the patented means,

more helpful than this is, upon the. issue of invention.

We do not overlook the problem presented by the form

of the claim. The functions of the bonding material, as

an insulator to interrupt the flow of heat and as a seal to

exclude-air and moisture from the packing, are not speci-

fied in the claim, although they are of consider able import-

ance, (we do not say vital), in distinguishing from the

prior art.

We think this patent is entitled to a fairly liberal con-

sjpuction 1 in aid of its validity and ought not to be defeated

by any unnecessary adherence to technical rules. We think

also that the always implied ‘‘substantially as described”? -

and the doctrine of interpretation by the specifications,

justify regarding the ‘“‘bond’’ of the claim as one which

_ does effectively insulate the outer and inner members. The

patent specifies, in line 61 of page 1, that the bonding sub-

stance shall be of low heat conductivity, and the succeed-

ing lines emphasize that it is to be incapable of trans-

ferring much heat or cold from one to the other. Its

‘‘nan-heat transmitting properties’? are again emphasized

in line 115 of page 2. To import this limitation into the

claim is not to bring in an additional element. It is only

to interpret with the aid of the specification one of the

words of the claim, so that it may not he thought so broad

as to be destructive.

How far the sealing quality should also be implied in the.

claim in aid of its validity, it does not seem necessary to de-

cide. Nor need we decide just what would or would not be

x

65

the supporting bond contemplated by the claim. In de-

fendant’s form, the material of the bond is a sulphur

composition. It is strongly adherent, both to glass and

metal.. It seems probable that it would, unaided, suffi-

ciently support the pendent receptacle; but its operation

is aided by providing grooves in the outer surface of the

inner and the inner surface of the outer necks into which

grooves the bonding composition enters, and which grooves

therefore aid in preventing any slippage as between the

two members. This-construction renders it less vital that

the bonding material should adhere, efficiently to smooth

glass and smooth metal, as shown in the structure of the

patent drawings; but tle testimony of the experts that

there is infringement is not disputed, we have -no argu-

ment on the subject, and we think, for the purposes of this

record, we should find. that infringement exists.

The Seventh Circuit Court of Appeals relied upon three

old patents as the most pertinent out of the many cited

by defendant in that case, and expressed the view, that

in selecting elements. from these three and combining them,

as Blair did, there was no invention. Even if this were

a case where the lack of invention could be spelled out

in this way, the patents do not seem to us sufficient for

that result. ‘ Clisbee, No. 358,732, March 1, 1887 relates to

a double wall metallic can for keeping coffee hot. The

inner can is pendently supported by an upturned flange

on its. neck resting against the indrawn collar of the outer

¢an, and the parts are screw-clamped together. There is

no suggestion of bond or seal. Thé loss of heat from the

direct contact of the two’ metal pti obvious. The other

two patents relied upon (Heath, No. 211,092, January 7,

1879, and Fox, No. 438,149, October 14, 1890) do not relate

at all to heat insulation. They consist essentially of pack-

ing boxes to prevent the enclosed bottle from being broken

5 8 RETR TO CEN RETIN LETT SEI OG TEE RET LALA OT PM RTT,

66

in transportation. They do not have, in an effective sense,

any bond or seal. Fox shows a wooden packing case, for

transporting a glass carboy. He furnishes support ap-

parently only from below by an interposed packing. It

is true that between the neck of the carboy and the sur-

rounding hole in the top of the wooden ‘box, Fox puts in

_ plaster-of-Paris and says that it is ‘‘to exclude water or

moisture.’’ There was thus the thought of a seal, but the

proof is that plaster-of-Paris alone does not effectively

exclude air or moisture, and that it would not adhere to

‘the wood and glass so as to support the heavy carboy. It

never was intended to give pendent support. Heath, like-

wise, who has only a bottle cased for shipping, and whose

entire stated object was to prevent breakage, has no pen-

dent support and no bond or seal.

The leading decisions on the subject of invention are

too familiar for citation. Their application depends on

the facts of each case. We are constrained to the other:

conclusion from that reached by the Seventh Circuit Court

of Appeals. It may well be noted that’ the testimony of

two competitors, showing their unsuccessful efforts to get

Blair’s result by other means, was not in these McComb

and Monarch records, and this proof is so important that

it alone goes far toward justifying a different result here.

We have considered only claim 1. There are other claims

which are broader in séme respects and.do not incorpo-

rate the supporting bond. They thus present questions of

validity which we have not discussed. Some other claims

are narrower and suggest questions of infringement. We

see no object, upon this record, in considering any of these

claims. / .

The decree will be reversed and the case remanded, with

instructions to enter the usual decree for plaint#f on claim

1, and without prejudice to any rights of the plaintiff under ;

any other claim. *

67

APPENDIX E

——_—

b

Sec. 4917 Rev. Stat.; 35 U. S. ©. A. 65. Whenever,

through inadvertence, accident, or mistake, and without

.any fraudulent or deceptive intention, a patentee has

4 claimed more than that of which he was the original or

= first inventor or discoverer, his patent shall be valid for’

all that part which is truly and justly his own, provided

the same is .a material or substantial part of the thing

patented; and any such patentee, his heirs or assigns, .

; whether of the whole or any sectional interest therein, may;.

3 on payment of the fee required by law, make disclaimer

: of such parts of the thing patented as he shall not choose

to claim or to hold by virtue of the patent or assignment,

stating therein the extent of his interest in such patent.

Such disclaimer shall be in writing, attested by one or more

witnesses and recorded in the Patent Office; and it shall

thereafter be considered as part of the original specifica-

_tion to the extent of the interest possessed by the claimant

and by those ‘claiming under him after the record thereof.

But no such disclaimer shall affect any action pending at

the time of its being filed, except so far as may relate

to the question of unreasonable neglect or delay in filing

by ‘

is 3

na

Sec. 4922 Rev. Stat.; 35 U. S. C. A. 71. Whenever,

through inadvertence, accident, or mistake, and without

any wilful default, or intent to defraud or mislead the

public, a patentee has, in, his specification, claimed to be |

the original and first inventor or discoverer of any ma-

terial or substantial part of the thing patented, of which ©

he was not thé original and first inventor or discoverer,

:

1]

=

2

4

re

8

68

every such patentee, his executors, administrators and

assigns, whether of the ‘whole or any sectional interest in

the patent, may maintain a suit at law or in equity, for

the infringement of any part thereof, which was bona fide

his own, if it is a material and substantial part of t

thing patented, and definitely distinguishable from the

parts claimed without right, notwithstanding the specifi-

cations may embrace more than that of which the patentee

was the first inventor or discoverer. But in every such

case in which a judgment or decree shall be rendered for

the plaintiff no costs shall be reeovered unless the proper

disclaimer has been entered at the Patent Office before

the commencement of the suit. But no patentee shall be

entitled to the benefits of this section if he has unreason-

ably neglected or delayed to enter a disclaimer.

»