
    41 F. (2d) 392
    In re Henry W. O’Dowd
    (No. 2625)
    United States Court of Customs and Patent Appeals,
    February 25, 1931
    
      Luther E. Morrison for appellant.
    
      T. A. Hostetler (Howard S. Miller of counsel) for the Commissioner of Patents.
    [Oral argument January 7, 1931, by Mr. Morrison and Mr. Miller]
    Before Graham, Presiding Judge, and Bland, Hatfield, Garrett, and Lenroot, Associate Judges
   Hatfield, Judge,

delivered the opinion of the court:

This is an appeal from the decision of the Board of Appeals affirming the decision of the primary examiner rejecting claims 25, 26, 27, 28, and 29 in appellant’s application for an alleged invention relating to a structure for supplying additional air to tlie jets of a gas burner “ disposed beneath a closed cooking-top plate.”

Claim 25 is illustrative., It reads:

25. In combination witli a gas burner disposed beneath a closed cooking-top plate and providing gas-jet nozzles, a conduit member substantially enclosing said burner and arranged to direct air flowing upwardly therethrough obliquely into the combustion portions of the jets directed from said nozzles.

It appears from the record that the appealed claims were copied by appellant from the patent to Huetteman et ah, No. 1650359, issued November 22, 1927, for the purpose of securing a declaration of interference between the patent and appellant’s application.

The tribunals of the Patent Office held that appellant’s application disclosed a plurality of gas burners within a chamber; that the chamber was not arranged “ to direct air flowing upwardly through the burner obliquely into the combustion portion of the .jets”; that appellant’s structure had nothing which could be described as a conduit member substantially inclosing the burner, whereas, the patent from which the appealed claims were copied disclosed a structure in the form of a conduit substantially surrounding each burner amd arranged to direct the air into the combustion portions, of the jets as stated in the claims; and that, as the involved claims are expressly limited to a “ conduit member substantially inclosing said burner and arranged to direct air flowing upwardly there-through obliquely into the combustion portions of the jets directed from said nozzles,” appellant was not entitled to make them.

After describing appellant’s disclosure, the Board of Appeals, among other things, said:

The same general arrangement is shown in the patent to Huetteman et al., and the claims on appeal were copied from this patent. In Huetteman’s construction, however, the member which corresponds to appellant’s structure just described extends down below the top of the burner and nearly to the bottom of the same. In the patent this structure is referred to as a conduit, and the claims appealed all include a statement that the conduit substantially incloses the burner. It is clear that the plate 18 of appellant’s structure does not inclose the burner but lies in and projects from a plane substantially at the top of the burner. Appellant contends, however, that since the burner is mounted in a chamber in the gas stove that the plate 18 merely shows the top of a chamber which may be regarded as a conduit. Technically this may be true but we do not consider the chamber of the stove as material to the direction of the air up past the burner and to the jets. Doubtless the conduit to Huetteman is placed in a similar chamber, or, if it is not, that it could be so placed without disturbing the control of the air. In our opinion, therefore, the structure referred to by Huetteman as a conduit should be construed as the surrounding annular member close to the burner and should not in any way be considered as referring to a chamber in which the structure may, or may not, be positioned. Appellant contends that his structure will function in the same manner as that of the patentee, hut in view of the specific limitation in the claims of the patent involved in this appeal, we find it unnecessary to enter into a consideration of this point.

Whether the conduit, disclosed as substantially surrounding a burner and specifically claimed in the patent to Huetteman et al., should be considered as limited to an annular shape, as stated by the Board of Appeals, is unnecessary for us to determine. It seems clear to us, however, that appellant does not disclose in his application' a structure in any way similar to the conduit disclosed and claimed by Huetteman et al. We are of opinion, therefore, that the appealed claims do not read on appellant’s disclosure.

The decision is affirmed.  