
    SMITH v. JAMES MFG. CO. et al. 
    
    No. 273.
    Circuit Court of Appeals, Second Circuit.
    April 6, 1936.
    J. S. Powers, of Buffalo, N. Y., and H. A. Toulmin, Jr., and H. A. Toulmin, Sr., both of Dayton, Ohio, for appellants.
    Albert L. Ely, of Akron, Ohio, and Max D. Farmer, of Buffalo, N. Y. (Parker, Prochnow & Farmer, of Buffalo, N. Y., of counsel), for appellee.
    Before MANTON, SWAN, and CHASE, Circuit Judges.
    
      
      Writ of certiorari granted 56 S.Ct. 947, 80 L JSd. —.
    
   MANTON, Circuit Judge.

This suit is for infringement of claims 1, 2, 3, and 5 of the Smith patent, No. 1,-262,860, for an incubator granted April 16, 1918, on an application filed October 26, 1916. Claim 1 has been held invalid in Smith v. Hall (C.C.A.) 83 F.(2d) 217, decided this day. Claims 2 and 3 are similar method claims, and fall for the same reasons as claim 1. With the method claims invalid, there is nothing in claim 5 covering the apparatus to apply the method to support an infringement suit.

Decree reversed.  