Appeal from the District Court of the United States for the Western District of Pennsylvania; Nelson McVicar, Judge.
Before BIGGS, MARIS, and CLARK, Circuit Judges.
The court below held that the defendant's engine did not infringe Franz Lang's United States Patent No. 1,803,262 issued in April, 1931, upon an application filed in March, 1926. The Lang patent here in issue discloses a compression ignition oil engine. The plaintiffs, respectively, are the owners of the legal title to the Lang patent and the exclusive licensee thereunder and have appealed.
We have appended to this opinion simplified drawings showing the engine of the patent in suit and the defendant's engine.An examination of the first of these shows a compression space divided into three chambers, marked severally d, g and b. Between b and g is a throttling constriction f. The letter c, indicates a nozzle through which the fuel is injected into the chamber g toward the end of the compression stroke. The District Court found each of the three chambers to perform a separate and distinct function, co-operating to create an engine embodying the combination claimed by the patent. Claims 1 and 2 are in issue and we have set them forth in the margin.*fn1 The District Court held also that the chamber b was an auxiliary combustion chamber.If the learned District Judge was correct in holding b to be an auxiliary combustion chamber, he was also right in ruling that a main combusition chamber in juxtaposition to an auxiliary combustion chamber as shown by the patent constitutes a combination which is old in the art because a similar general arrangement is disclosed by White's British Patent No. 170,433 of 1921. Chamber g of the Lang patent is different in shape from the passage or chamber disclosed by the drawing accompanying White's patent. While the tapering shape of chamber g disclosed by the Lang Patent is claimed by the plaintiffs to constitute the gist of Lang's invention and it is also asserted by the plaintiffs that the passage 3-4 shown in the diagram of the defendant's engine is its equivalent, we conclude that this is immaterial for the reasons hereafter stated.
The defendant contends that the feature of its engine is a "Dual Combustion" system which makes use of the main combustion chamber 5 and the auxiliary combustion chamber 2, connected by the passage 3-4, the engine being activated by fuel sprayed into the system by a special "throttling" type of nozzle. The evidence shows clearly that the defendant's engine operates by means of a main and an auxiliary combustion chamber.
We cannot agree with the view expressed by the District Court that chamber b of the engine of the patent is an auxiliary combustion chamber for Lang does not describe it as such in his patent. His specifications state in part, "This invention relates to self-igniting motors in which the chamber wherein the air is compressed by the piston on its compressionstroke is sub-divided into at least two chambers which communicate by at least one aperture having a throttling cross-sectional area. one of the chambers at least is arranged to be reduced in size or volume as the compression proceeds so as to force a flow of compressed air into the other chamber or chambers through a throttling constriction of the aperture or communication. According to the invention the parts are so arranged and constructed that fuel injected into the chamber before the end of the compression-stroke in a direction toward, or practically toward, the constriction meets such air-flow in a funnel-shaped space tapering toward and arranged in advance of the constriction." The specifications also state, "The air entering into the cylinder during the suction stroke is compressed during the next stroke, whereby a brisk flow of air through the throttling constriction f into the supplemental compartment b arranged on the cylinder is produced. The fuel nozzle c has the same longitudinal axis as said constriction, so that at least a portion of the fuel is injected into the core of the air current. This fuel injected through the nozzle towards the end of the compression stroke contacts already in the mixing funnel g, that means before the constriction f, with the air flowing into the compartment b and being heated and ignited on account of the compression, the compressed air stored in said compartment b flowing through the constriction into contact with the mixture to support and maintain the combustion as the piston recedes."
There is not a word in the patent which says that combustion or ignition takes place in chamber b. The fact is that Lang has described a method of compressing air in chamber b whereby it may flow into chamber g during the combustion period "to support and maintain the combustion as the piston recedes". Lang has described chamber b as an air cell and the engine of his patent is of the "air cell" type.*fn2 That Lang described an air cell Diesel engine is made all the more apparent by the amendments of his specifications and his cancellation of rejected claims in the Patent Office. Lang originally claimed, "A self-igniting oil motor provided with an additional combustion space, separated at least during the last part of the compression-stroke from the primary combustion space by a throttling constriction, through which during the last part of the compression-stroke compressed air and injected fuel flow into the additional combustion space, characterized by the feature that at least a part of the additional combustion space is arranged as a protuberance on the cylinder and that the compression is effected to such a high degree that the charge of fuel - and air mixture is ignited, also at the normal starting of the cold engine without any auxiliary starting device."*fn3
This claim as well as all claims originally filed were rejected upon prior art patents, viz., White's British Patent No. 170,433, and Rundolf's Swedish Patent No. 28,055. Lang then amended his specifications and eliminated any reference to chamber b serving as a combustion space and substituted claims in which it was described merely as a second compartment. his "Remarks" accompanying these changes are set out in the margin.*fn4 Larsson's Swedish Patent No. 37,199 was then cited to Lang by the Examiner and in distinguishing Larsson's disclosures from his own Lang stated in part, "The second chamber * * * under applicant's invention is not a combustion chamber, but a compression chamber, which is designed to project highly compressed air into the said passage in the form of an air jet or stream during the working stroke thus prolonging the period of combustion and obtaining a more even and smoother application of power." Later, distinguishing his claimed invention from Takata's British Patent No. 189,069, Lang said "while under applicant's structure * * * the combustion takes place outside*fn5 the second chamber and is supported and promoted by the compressed air streaming out therefrom as the piston recedes, under Takata's construction the combustion is entirely in 5 the second chamber." The Examiner then rejected other claims of the amended application and indicated his doubt that lang's engine embodied the principle of the air-cell, apparently believing that some combustion took place in chamber b. Lang removed these doubts from the Examiner's mind by explaining that at the time his original application was filed he did not know all that went on inside of the cylinder of his engine when it was running and that it was not until extensive research had been made that he was able to ascertain with certainty the operation of his engine which until then had been a matter of theory. When the Examiner again rejected the claims, Lang adhered to this position. The Patent Office was then convinced and the patent was issued. These facts present a plain case of file-wrapper estoppel, and in view of this record the plaintiffs cannot now claim that chamber b serves a sa combustion chamber. See Starlock Mfg. Co. v. kublanow, 3 Cir., 106 F.2d 495, 500; Fried-Krupp Aktien-Gesellschaft v. Midvale Co., 3 Cir., 191 F. 588, 610. We conclude therefore that the defendant's engine cannot be deemed to infringe Lang's patent for chamber 2 of the defendant's engine operates as a combustion chamber.
The plaintiffs, citing the decision of this court in Jacobs v. Iodent Chemical Company, 3 Cir., 41 F.2d 637, 638, expressed doubt as to whether the doctrine of file-wrapper estoppel may be invoked here since the court below found that chamber b was an auxiliary combustion chamber.*fn6 In the cited case the Iodent Chemical Company did not appeal from the findings of fact of the lower court and it was held that it could not attack these findings on appeal. In the cited case, however, both parties were granted injunctive relief by interlocutory decree and both therefore could have appealed. In the case at bar, the defendant could not have appealed from the decree given in its favor.*fn7 Electrical Fittings Corporation v. Thomas & Betts Co., 307 U.S. 241, 242, 59 S. Ct. 860, 83 L. Ed. 1263; Lindheimer v. Illinois Tel. Co., 292 U.S. 151, 176, 54 S. Ct. 658, 78 L. Ed. 1182. An appellee without a cross-appeal may urge upon the court any matter in the record in support of a decree in its favor even though such an argument may attack the reasoning of the trial court or insist upon the weight of evidence ignored by that court. Here the appellee does not attack the decree. It merely reasserts reasons which it urged below. See United States v. American Ry. Exp. Co., 265 U.S. 425, 435, 436, 44 S. Ct. 560, 68 L. Ed. 1087. The reasoning of the District Court is not binding upon us. We may support the decree upon grounds which the court below rejected. Accordingly it is affirmed.