
    IN RE FOSTER.
    Patents; Anticipation.
    A decision of the Commissioner of Patents allowing one of six claims in an application for a patent for improvements in flame-guards for burners for heaters, with special reference to the use of heaters for motor vehicles, and rejecting the other claims upon references to numerous American and British patents and also to the “ Davy ” lamp, as anticipating the applicant’s invention in the matter of the use of a wire screen to confine flame within a predetermined space, reversed as to the claims disallowed, upon the ground that there was no substantial difference between the allowed claim and the rejected ones.
    No. 182.
    Patent Appeals.
    Submitted January 16, 1902.
    Decided March 5, 1902.
    Hearing on an appeal by an applicant for a patent from a decision of the Commissioner of Patents rejecting five of six claims of the application.
    
      Reversed.
    
    The Court in its opinion stated the case as follows:
    This is an appeal from the decision of the assistant Commissioner of Patents in the matter of the application of Charles E. Foster for letters patent of the United States for certain alleged new and useful improvements in flame guards for burners for heaters, with special reference to the use of heaters for motor vehicles. The claims of the application, as finally formulated and passed upon in the Patent Office, are six in number, and are as follows:—
    1. The combination with a boiler of a casing inclosing a combustion chamber below the tubes of the boiler, a vapor burner below the boiler perforated to project the flaihe toward the boiler, air-inlet openings arranged to permit the free-upward flow of air with the flame to the boiler tubes, and a guard of fine wire cloth covering the said inlet openings, substantially as set forth.
    2. The combination with a boiler, combustion chamber and vapor burner below the same, air-inlet openings, and flue for the escape of products of combustion, of flame guards of fine wire cloth arranged above and below the combustion area to confine the flame within said area and to deflect air currents while permitting a free upward flow of air to the burner and through and from the boiler, substantially as set forth.
    3. The combination with the boiler, vapor burner and liquid fuel supply-tank communicating with the interior of the burner, of a fine wire screen covering the openings between the burner and tank, substantially as set forth.
    4. The combination of a boiler, vapor burner below the boiler having air-inlet tubes, intermediate combustion chamber, and a screen of fine wire cloth below the lower ends of said tubes, substantially as set forth.
    5. The combination of a boiler, vapor burner, an air-inlet below the same, and a guard of fine wire cloth below said inlet, substantially as' set forth.
    6. The combination of a boiler, burner, intermediate combustion chamber, a guard consisting of a sheet of fine wire cloth bent up to form a side flange, and means for supporting it below the burner, substantially as set forth.
    The claims were all rejected by the primary examiner as unpatentable in view of the existing condition of the art, as evidenced by thirteen several patents, which were cited as references, and which were the folio-wing:
    1. Patent to Suhr, April 21, 1867, No. 77,124.
    2. Patent to Houchin, July 27, 1875, No. 166,008.
    3. Patent to Keys, June 24, 1879, No. 216,861.
    4. Patent to Wiser, September 19, 1882, No. 264,501.
    5. Patent to Lea, December 19, 1882, No. 269,503.
    6. Patent to Gill & Poley, May 31, 1887, No. 364,101.
    
      7. Patent to MeTyre, June 7, 1887, No. 364,597.
    8. Patent to Sintzel, September 16, 1890, No. 436,384.
    9. Patent to Thayer, September 26, 1893, No. 505,643.
    10. Patent to Loop, August 3, 1897, No. 587,448.
    11. Patent to "West, March 15, 1898, No. 600,818.
    12. British Patent to Ballardie, No. 6006 of 1882.
    13. British Patent to Stanley, No. 2844 of 1889.
    all of which antedated the appellant’s application, which was filed on December 9, 1899. Deference was also made to the well-known “ Davy Lamp,” so generally used by miners, as also anticipating the appellant’s alleged invention in the matter of the use of a wire screen to confine flame within a predetermined space. The board of examiners-in-chief affirmed the decision of the primary examiner.
    Upon appeal to the Commissioner, the assistant Commissioner, who sat in his place, affirmed the decision of the lower tribunals of the office as to all the claims, except that numbered two, and as to this claim reversed the decision of the board and held the claim to be patentable. Prom the decision as to the other five claims the applicant has appealed to this court.
    
      Messrs. Foster & Freeman for the appellant.
    
      Mr. John M. Goit for the Commissioner of Patents.
   Mr. Justice Morris

delivered the opinion of the Court:

We find ourselves unable to recognize the substantial difference which the Commissioner finds between claim numbered two and the other claims. It seems to us that, if claim numbered two performs new functions in the art, as the Commissioner states, and is therefore patentable, some at least, if not all, of the other claims are equally patentable, since all of them contemplate the same function, which, as the Commissioner very properly says, is that “the wire screens not only act as flame guards, but they effectually break up the áir currents which must necessarily exist when the carriage is in motion,” that the flame is prevented from escape when the fluid passes through the screen,” and that “ the ignited fluid in the burner flows through the screen as an unignited fluid.” These are precisely the functions which each and every combination of the several claims is intended to perform; and these functions, it would seem, they each and all do perform. The only substantial difference between the combination in claim numbered two and the combinations of the other claims would seem to be, that in claim numbered two there are two wire screens, one above and the other below the combustion chamber, while in the other claims there is mention only of one such screen below the combustion chamber. The combination in claim numbered two appears to be the more effectual to produce the result; hut the difference of function appears to he one of degree rather than of kind. Having allowed claim numbered two, the Commissioner, we think, should have allowed the other claims also.

The whole of the alleged invention is in the use of a screen of fine wire cloth to cover the inlet openings in such manner as not only to confine the flame within a certain area, hut likewise to deflect the air currents that are apt, when a vehicle is in motion, to carry the flame downward or laterally through the air-inlet openings. The other parts of the several combinations are concededly not new; and the use of a wire screen to confine flame within a predetermined space is admitted not to be new, for such was the construction of the Davy lamp. The alleged invention is the use of the wire screen in this connection in such manner as to deflect the air currents which interfere with the flame while ■the vehicle is in motion. And the whole question in the appellant’s case is, whether this is not merely a new use, not patentable, of an old device, or what is called in the patent law, a double use.

Several patents are referred to as showing anticipation of the'appellant’s claim;'hut we fail to find in them any such anticipation. They all seem to be of different construction and to serve a different purpose. The patent, for example, to Frederick T. Suhr, of April 21, 1867, for a mode for burning crude petroleum, shows a perforated draught pan intended to direct the currents of air upon the flame. But this assuredly is not the equivalent of a wire screen so made and arranged as to break up and deflect the air currents, and to prevent their interference with the flame to extinguish it. A patent of July 27, 1875, to Thomas ~W. Houchin for improvement in a pocket gas-stove for cooking is likewise supposed to show anticipation in the fact that it has a wire gauze at the top and bottom of the burner to prevent the communication of flame from the gas burning at the top to that within the box. But this would seem to be a very different thing from a wire screen so arranged as to break up the currents of air. Nor do any of the other patents mentioned seem to us to be any more appropriate as references of anticipation, than was the old Davy lamp an anticipation of the several inventions for which these several patents were granted.

But it would appear to be unnecessary to enter into the subject at any length. Concurring as we do in the Commissioner’s decision, and in the reason given by him therefor, that the appellant’s claim numbered two is patentable, and finding no substantial difference between this claim and the other five enumerated, we find no i*eason to refuse to these latter the merit of patentability.

As to claims numbered 1, 3, 4, 5, and 6, the decision of the Commissioner is reversed.

The clerk of the court will certify this opinion and the proceedings in the cause in this court to the Commissioner of Patentsi according to law.  