
    THOMAS ROBERTS STEVENSON CO. v. McFASSELL.
    (Circuit Court of Appeals, Third Circuit.
    November 28, 1898.)
    No. 36.
    1. Patents — Invention—Pkaciticai. Success ov Device.
    In a doubtful case, the fact that the patented device has gone into general use, and superseded other devices, may be sufficient to turn the scale, and support the presumption of patentability arising- from the grant of the patent.
    2. Same — Impkovemhxt in Ranges and Stoves.
    The Hayes' patent, No. 310,276, for an improvement in ranges and stoves, covers a true combination, and discloses patentable invention, and is valid.
    Appeal from the Circuit Court of the United States for the Eastern District; of Pennsylvania.
    Henry Everding and A. v. Briesen,. for appellant.
    Joshua Pusey, for appellee.
    Before ACHESON, Circuit Judge, and BUTLER and KIRKPATRICK, District Judges.
   ACHESON, Circuit Judge.

This suit was brought by the Thomas Roberts títevenson Company against Harry W. McEassell, Jr., for the infringement of letters patent for an improvement in ranges and stoves, being No. 810,276, and dated January (>, 1885, granted to Isaac Hayes, and by him assigned to the complainant below, who-is here the appellant. The specification of the patent thus sets forth the invention:

“My invention consists in constructing a portable cooking range in which the circulating boiler rests in a horizontal position upon a supporting frame secured to the fop of the range, with circulating pipes connected to the boiler, and with the water-back in the fire chamber, the object of winch is to dispense with brickwork, and thus lessen the cost, and to economize space, and render the parts easy of access in case of repairs or cleaning.”

The nature of the patented improvement is well stated by Mr. Livermore, the complainant’s expert, who testifies thus:

“The Hayes patent shows and desenlies a cooking and water-heating apparatus comprising a portable cooking range and a hot water circulating boiler, and a supporting frame for the circulating boiler, itself supported upon the body of the range, the said boiler being connected by circulating pipes with the water-back in the rango. The said parts constitute a complete cooking- and water-heating apparatus, all parts of which are structurally correlated to one another, so that they can be made up at the shop or factory as a complete apparatus, instead of, as in prior apparatus for this purpose, being made as separate manufactures requiring structural and machine work at the place of the erection of the apparatus for use.”

The claim of tbe patent is in tbe words following:

“The combination of tbe portable range, A, uprights, O, C', plate, H, warming shelf, F, boiler," D, and pipes, B, B', substantially as shown and described.”

This combination includes tbe range propér, tbe boiler supporting frames secured to tbe top of tbe range, tbe horizontal circulating boiler supported upon tbe frame, and tbe connecting pipes between the boiler and tbe water-back. These elements together constitute an article in complete form, ready to be set up for use at any desired place, tbe structural work and skilled labor required .at tbe point of installation in tbe case of tbe previously used brick-set ranges being wholly dispensed with. Tbe claim is not for a mere aggregation. The essence of a true combination is here found, namely, a co-operative union of elementary parts effecting one practicar result. Tbe calls for tbe “plate, E,” and “warming shelf, F,” may impose unnecessary limitations upon tbe patentee, but they do not vitiate tbe claim.

We do not find that this improvement was disclosed or suggested by any of the prior patents set up in defense. Tbe Whiteley patent of 1868 is tbe most pertinent reference, but it falls far short of being anticipatory. It shows a brick-set range of very complicated construction, and tbe analogy between it and the Hayes structure is remote. Indeed, tbe Whiteley patent contains no hint of a cooking and water-heating apparatus, tbe elements of which are structurally combined so that tbe whole apparatus can be produced as an article of manufacture, ready for use wdierever needed. Tbe evidence satisfies us that tbe constituents of Hayes’ claim were never previously combined in tbe manner stated in bis patent. In fact bis structure was new.

In respect to tbe utility of the Hayes improvement, tbe proofs are full and convincing. Hot only does bis construction dispense with all brickwork, so that tbe range of the patent can be set up for use as rea.cl.ily as a portable cooking stove, but tbe original cost of the article is greatly reduced. A saving of fuel is also effected, while an increased supply of hot water is secured. Kitchen space is economized. The parts are more easily accessible for purposes of repairs and cleaning than in tbe old form of construction. The advantages of tbe patented range are such that it has met with great public favor, and has largely displaced tbe old brick-set range.

Looking at the subject in tbe light of all tbe evidence, we are not able to concur in tbe conclusion of tbe circuit court that tbe Hayes construction did not involve any exercise of tbe inventive faculty. Upon tbe question of patentable novelty and usefulness, tbe proofs, we think, sustain tbe action of tbe patent office in allowing tbe patent. Tbe presumption of patentability arising from tbe grant of tbe patent (Lehnbeuter v. Holthaus, 105 U. S. 94) has not been overthrown. Moreover, in a doubtful case tbe fact that tbe patented device has gone into general use, and superseded other devices, may be sufficient to turn tbe scale. Smith v. Vulcanite Co., 93 U. S. 486. Upon tbe entire proofs it is our judgment that tbe Hayes-patent is valid. That tbe defendant infringes tbe claim is clearly shown. The decree of the circuit court is reversed, and the cause is remanded to that court with direction to enter a decree in favor of the complainant in the bill.  