Peerless Mfg. Co. v. Chattanooga Foundry & Roofing Co. , 26 F.2d 667 ( 1928 )

MOORMAN, Circuit Judge.

Suit for infringement of the Fitch patent, No. 1,011,598, for a fireplace damper, issued September 12, 1911. Claims 1 and 4 are involved. They are alike in the elements called for, the difference being that claim 4 is specifically limited in its operating means. Claim 1 calls for “a fireplace damper, having a body adapted to be set in the masonry of a fireplace and provided with a pocket extension at one side opening within the body, a pivotal door hung in said body, and door-actuating'mechanism arranged within the pocket extension of the body beneath the door and accessible from within the fireplace below the body without displacing the body.”

Both of the claims locate the actuating mechanism in what they call a “pocket extension.” It is in this location that appellant claims there is invention. Prior to Fitch, the actuating mechanism had been located near the center of the opening in the easting, where it was directly exposed to the heat and soot, or outside the easting, where it was inaccessible, or at least accessible with great difficulty, after the damper had been built in the chimney. The arrangement which Fitch made, as appellant claims, has the advantage, in the one ease, of lessening the exposure, and, in the other, of making the mechanism more accessible and easier to repair. It is not, however, different in its location from Shaw, No. 697,893. Shaw, it is true, had the additional element of a partition between the actuating mechanism and the easting; but, if this partition were taken out, his device would be practically the same as Fitch’s.

The claims refer to “a pocket extension” and “an interior poeketlike extension.” The lower court was of opinion that Fitch’s construction did not have a pocket extension, but that he had simply contracted the end of the easting around the actuating mechanism. The plaintiff’s expert testified that the novelty in Fitch consisted of the pocketlike extension, which was substantially the drawing in of the side walls of the frame, and forming a part of the chamber of less width. It is not important, we think, what this space is called, as what Fitch did was to place his mechanism in a chamber accessible through the easting. He did nothing but remove the partition between the chamber housing Shaw’s mechanism and the opening in the easting, or, in other words, he put the opening of the chamber on the side or bottom into the interior of the casting, rather than on the top and outside the casting, where Shaw had it. In our opinion, this was not invention.

The decree is affirmed.