certain features of the Bancel structures, it does not obtain "substantially equal depth of penetration of steam" as set out in claim 1. Claim 2 requires merely "increasing the depth of penetration in the vertical sections in which the cooler water has more heat absorbing capacity." But it must be remembered that the plaintiff has insisted that we read this claim like the others, with the specification, and if that were to be done, there would be no escape from limiting it to devices in which all surfaces of the tubes work to condense steam, and none of them have an air cooling function.
The defendant has counterclaimed for infringement of United States patent, No. 1,347,436, to Bauman. This patent has to do with the support of the assemblage consisting of the turbine and the condenser. Ordinarily, condensers are placed underneath the exhaust of the turbine. In some cases the condenser has been supported entirely by its attachment to the turbine exhaust. In others it has been separately mounted upon a rigid base, below and separate from the rigid base upon which the turbine is mounted. The latter construction required an expansion joint between the condenser and the turbine to compensate for relative shifting of the two members due to unequal expansion or distortion.
The central idea of the Bauman patent is to base the end (water inlet and outlet) parts of the condenser, together with most of the load of the tube bank, upon separate rigid supports and to mount the shell (with some of the weight of the tubes) depending from the exhaust of the turbine. To take care of relative shifting of the parts, expansion joints are provided between the portion of the shell which depends from the turbine and the ends which are mounted upon rigid supports.
A number of issues are raised as to this patent.
1.The plaintiff's accused structure undoubtedly infringes the patent, if valid. The general apportionment of the load and the functioning of the supports and expansion joints is the same. The only departure from the patent is that it puts a somewhat larger portion of the weight of the tubes upon the support of the condenser shell depending from the turbine exhaust than the patent does.
2. The patent is not invalidated by abandonment or dedication to the public of the subject-matter. The claims of the patent originally were included in the application for an earlier patent, No. 1,277,830.Division was required and those claims canceled. Application for what were thus treated as divisional claims was not made until twenty-nine days after the earlier patent issued.The plaintiff contends that these facts are sufficient to establish a dedication of the subject matter of the claims to the public, and cites Gladding-McBean Corporation v. N. Clark & Sons (C.C.A.) 16 F.2d 50.
I confess that I am not able to reconcile the decision in that case with what appears to be the weight of authority and the better reason. See American Laundry Machinery Company v. Prosperity Company (C.C.A.) 295 F. 819; Eclipse Machine Company v. J.H. Specialty Mfg. Company (D.C.) 4 F.Supp. 306; American Optical Company v. Shur-on Optical Company (D.C.) 9 F.2d 932, affirmed (C.C.A.) 16 F.2d 1013.
Abandonment is a question of fact and depends upon a finding that there was an intention to abandon. Where the subject-matter of the second patent is a truly divisible separate invention and where the Patent Office requires division, the intention to abandon, if it is to be found anywhere, can only be found from delay in pursuing the divisional application. I do not think that it can be laid down that a failure to apply during the pendency of the first patent or until a month after its issue is conclusive evidence of abandonment. In addition, in the present case there is another fact which is in favor of the patentee on this issue. He had, in 1916, applied for and in 1917 received a British patent covering the subject-matter of the patent in suit in the counterclaim (the second American patent). Under the Nolan Act, 35 U.S.C.A. §§ 80-87, his priority rights as to the date of the British application were in existence when his first American patent issued. Apart from the question of law, which it is unnecessary to discuss, this has a definite bearing on the fact question upon the intention to abandon.
3. There is no question that the defendant's structure is novel and useful. The plaintiff's principal witness agreed that none of the earlier patents "show the condenser shell suspended from the turbine with water boxes separately supported and connected by expansion joints to the shell ends." The only serious question is whether invention is involved. Of course there was nothing new about the use of expansion joints to take care of the relative shifting of members of a structure and naturally they had been used in heating or condensing apparatus (Renshaw, British patent). The Ehrhart patent, No. 1,116,042, cited by the plaintiff, is an arrangement by which the condenser is suspended from the turbine bed plate and connected with the turbine by an expansion joint. The principle of this patent seems to be that when in operation the lifting force of the vacuum in the condenser causes an upward thrust which must be taken care of in some way, and this is done by an expansion joint between the upper end of the inlet nozzle of the condenser and the turbine.Stops were provided to counteract or check the upward thrust. Bauman shows a distribution of the load between its supports radically different from that of Ehrhart or any other patent which has been cited. In view of what appears to me to be a definitely novel construction, I am unable to say that the prior art offered is sufficient to overcome the presumption of validity arising from the grant of the patent.
I therefore hold that the patent involved in the counterclaim is valid and infringed.
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