
    STROMBERG MOTOR DEVICES CO. v. JOHN A. BENDER CO.
    District Court, N. D. Illinois, E. D.
    February 13, 1914.
    No. 65.
    1. PATENTS (§ 167) — CONSTRUCTION—SCOPE AND CHARACTER OF INVENTION.
    An inventor is entitled to all that his patent fairly covers, even though its complete capacity is not recited in the specification and was unknown to him prior to the patent issuing.
    [Ed. Note. — For other cases, see Patents, Cent. Dig. § 243; Dee. Dig. § 167.]
    2. Patents (§ 328) — Validity and Infringement — Carbureter.
    The Ahara patent, No. 684,662, for a carbureter, designed for an explosive engine of the hit and miss type but adapted for and used on automobile engines, held not anticipated, valid, and infringed.
    In Equity. Suit by the Stromberg Motor Devices Company against the John A. Bender Company. On final hearing.
    Decree for complainant.
    Charles A. Brown, of Chicago, Ill. (Charles A. Brown and Arthur H. Boettcher, both of Chicago, Ill., of counsel), for plaintiff.
    W. M. Swan, of Detroit, Mich. (C. P. Byrnes, of Pittsburgh, Pa., of counsel), for defendant.
    
      
       For other cases see same'topic & § number in Dee. & Am. Digs. 1907 to áate, & Rep’r Inflexes
    
   SANBORN, District Judge.

Final hearing on bill for infringement of the Ahara patent, No. 684,662, October 15, 1901, and the Richard patent. No. 791,501, June 6, 1905.

While it is difficult, if not impossible, to know just what takes place inside of a carbureter, under varying suctions of the engine, yet if it works well in such conditions a comparison between its internal arrangement and the old single jet device, which did not give satisfactory re-' suits for variable speed, should give a reasonably satisfactory conclusion. It is true that the Ahara device was intended for a hit and miss engine, with a constant speed. The theory of its construction was that the auxiliary tube would have time to fill up with fuel during a nonshot instant, to be ready for an increased supply of fuel on the next shot or two, when a richer and more potent mixture was needed. And it is equally true that the Baverey device was intended for a variable speed engine, with no missed strokes under pormal operation. But the real question is whether the Zenith device as made, not strictly following the Baverey patent in all respects, has substantially the same principle of operation as Ahara and Richard, or either one of them, assuming all three patents to be valid, as I think they are.

The conflicting devices may be roughly illustrated by the letter b inside of the letter U, thus: 1 _

_ Suppose ,the two tubes or conduits are supplied with gasoline from a constant level tank, whose upper level is a little below the level of the left-hand upper ends of the b and U, — and that the lower horizontal end of b is connected with this - tank; also, that the b tube has a small opening into the U tube, so that the fuel may run into it; and that the b tube is closed to the air except at its top or nozzle, while the U tube is open to the air at its upper right-hand end.

One of the difficult problems of the development of the automobile was the carbureter. The old single jet device worked well at constant and low speeds, but could not take care of high speeds at varying loads, because it produced too ..rich a mixture. The first notable success in meeting this problem was made by Krebs in 1902. He found that, by attaching to the old form of carbureter an automatic air valve controlled by a spring so adjusted as to open and let in air as the speed increased, the proper fuel mixture was obtained. This will be found illustrated by the defendant’s device shown in the opinion of the Circuit Court of Appeals of this circuit in Stromberg Motor Devices Co. v. Parker, 212 Fed. 413, 129 C. C. A. 106, decided January 6, 1914. Automatic compensation for the increasing richness of the explosive mixture was in this way obtained.

The same problem has been solved in a different way by other car-bureters, of which the Baverey patent of 1908, No. 907,953, is a type. Defendant’s device is made under this patent, but the alleged infringing carbureter, known as the Zenith, varies from the patent in the particular mentioned later.. Ahara did not consciously attempt to improve carbureters for use on automobiles, but on hit and miss engines only, though he builded much better than he knew. In his specification he says:

. “This invention relates to a feeder for explosive engines, and particularly to a structure adapted to vary the amount of fuel mixed with the air fed to such an engine.
“The invention is adapted for application to explosive engines of the type in which the speed is governed by omitting or cutting out explosions of the fuel and in which, when the different parts are properly adjusted,.the maximum power can be secured with a certain amount of fuel to a given quantity of air. As the quantity of this fuel relative to a given quantity of air is diminished, a mixture is obtained which finally gives no explosion, and, as the predetermined relative quantity of this fuel is increased, the explosive action is rendered much higher. Therefore it will be seen that mixtures of the fuel and air when properly determined will govern the power applied to the piston, and consequently the speed of the engine, under a fixed relation of parts. In explosive engines governed by cutting out or omitting explosions, the plan usually adopted is to admit a certain quantity of fuel into the engine cylinder for each explosion; this quantity of fuel being such that when mixed with the quantity of air drawn into the cylinder during one suction-strohe will give a maximum efficiency to the engine. This gives a uniform and efficient mixture for each explosion, except for the first explosion after one or more charges have been omitted. This first explosion after a cut-out will always be a weak or poor one, because a larger-quantity of air than usual is mixed with the regular quantity of fuel for an explosion.”

During the nonshot period the fuel runs from the D tube into the U, thus supplying an excess for a more powerful explosion on the next shot after a miss.

So the question here is whether the carbureter claimed to infringe, although made generally under Baverey, has the same principle of operation as Ahara, though the latter was not working to the same end, and though his device has had no effect on the problem of carburation for automobiles.

Both the Ahara and Zenith devices agree generally in the following particulars: Referring to the R and U tubes, the lower end of L is connected with the float-chamber, and the right-hand upper end of U with the air. With the suction on the upper left-hand ends of both tubes the effect is to pull fuel through R and air through U. L and U being connected, the fuel will run from B to U by gravity, so that both tubes will supply fuel to the mixing chamber at low speeds.' As the pull increases with the speed, all the fuel will be pulled out of U, and air only supplied by it, thus thinning the mixture, and preventing the over-richness occurring with a carbureter using only the L tube or single jet. This is the same result obtained by Krebs with his auxiliary air valve, with more economy of space and a cheaper device, perhaps a better result.

It will be readily understood that, if the U tube has an opening to the atmosphere so large as to keep normal air pressure in that passage, fuel will run into it from B, and be carried along to the mixing chamber with the air in U and the fuel also in R; but if the opening to the air is restricted a slight vacuum will occur in U, with little or no fuel. So, in order to obtain the object sought, of making the fuel leaner as the speed increases, the air opening in U must be properly restricted, sufficiently to produce the best result, as shown by trying it out.

At this point the claims of Baverey and Ahara meet literally, as they do Substantially in other respects. Referring to the U tube, Ba-verey claims “a chamber open to the atmosphere,” and Ahara “a passage communicating with the atmosphere.” Ahara’s claims admit of restricting the opening so as to get a slight vacuum in U. This is what he does, and so does the Zenith company in the devices shown in evidence. If the Zenith were made substantially like either figure 1 or 2 of the Baverey drawings, it seems there could be no infringement, because there would never be any subatmosphere in U. But the infringing Zenith -device restricts the opening in the upper part of U to one or two very small holes, while the drawings show the right-hand leg very much enlarged, with its upper end either wide open or covered only with a wire screen.

I think that Ahara’s claim 4 is clearly infringed, and perhaps also claim 7. On the trial it was earnestly contended by defendant that those of the Ahara claims'which count on means for controlling the amount of fuel running from the tank into B and thence into U cannot possibly be infringed, because the Zenith has no such means. But, as I understand the device, both of the threaded nuts around which the fuel passes are readily adjustable, so as to either increase or diminish the fuel passage.

While it is true that Ahara did not address his attention to the problem substantially solved by Krebs, yet in devising a carbureter for hit and miss engines he incidentally made a device which covers the same field as the Zenith, and as a matter of course he is entitled to this new or additional use.

“An inventor is entitled to all that his patent fairly covers, even though its complete capacity is not recited in the specifications and was unknown to the inventor prior to the patent issuing.” Diamond Rubber Tire Co. v. Consolidated Rubber Tire Co., 220 U. S. 428, 31 Sup. Ct. 444, 55 L. Ed. 527.

This consideration, as well as the manner and the purpose for which plaintiff acquired the Ahara patent, as disclosed by the evidence, would be worthy of some attention in a case of doubtful infringement. But these two devices work just alike. If the Zenith will work with a modern, high-class variable speed internal combustion engine, so will the Ahara. This must be so, because they operate on identical principles.

I have not given very much attention since the hearing to the relation held by the Richard patent sued on. This is a specialized improvement on Ahara, designed for the same purpose. It is not necessary to consider whether it is infringed by the Zenith device.

Understanding as I do that the amount of fuel supplied to both the L, and U passages is adjustable in the Zenith, I find that claims 1, 2, 4, 5, and 7 of the Ahara patent are infringed.

As to the matter of novelty or anticipation, I do not think Ahara was in any way anticipated by Crossley in his English patent, No. 24,-584, of 1893. This is the best prior disclosure.

Plaintiff is entitled to a decree adjudging validity of' the Ahara patent, and infringement by defendant.  