LOEW SUPPLY & MFG. CO. v. FRED MILLER BREWING CO., 138 F. 886

BAKER, Circuit Judge (after stating the facts).

Goetz shows a bottle-washing machine which “consists essentially of two tanks for containing the liquids, endless chains having connected therewith bottle-holding devices, and extending within a tank containing the cleaning solution, and thence upward above the same, means for automatically releasing the bottles, and a suitable conveyor to receive the bottles and convey the same into another tank containing water or other suitable liquid for removing the cleaning solution.” The bottle-holding device is a hole in the carrier plate through which the neck of the bottle is thrust, and a spring-latch to seize and hold the neck.

When the point of discharge is reached, a fixed arm disengages the spring, and the bottle falls upon the moving apron, down which it is carried into the rinsing tank. Eor their endless conveyor of the bottles through the solution tank, Nordberg and Uihlein use a wheel or drum. The bottle-holding device is a pocket or receptacle inside the carrier to receive the bottle bodily.

When the receptacle is inverted, a “guard independent of the carrier confines the bottle.” Cobb was not entitled to a generic patent for putting pockets and guards, disclosed by Nordberg and Uihlein, into the Goetz type of bottle-washing machine. W isconsin Compressed Air House Cleaning Co. v. American Compressed Air Cleaning Co., 125 Fed. 761, 60 C. C.

A. 529. “Industry in exploring the discoveries and acquiring the ideas of others, wise judgment in selecting and combining them, mechanical skill in applying them to practical results— none of these are creations; none of these enter into the inventive act.” Robinson, § 78. There is room for such an adapter to have only a specific patent for his particular form of adaptation, and he is not privileged to exclude others from gleaning in the same general field. Milwaukee Carving Co. v. Brunswick-Balke-Collender Co., 126 Fed. 171, 61 C. C. A. 175..

The claims in suit, if construed generically, would be void; limited to the specific form of adaptation, we do not find them infringed. The grant of the Volz patent for a specific form of adaptation of the prior art raises the presumption that the differences are substantial, not merely colorable. This presumption is not overborne by a comparison of the machines. Cobb has a long horizontal tank, taking up considerable floor space.

Volz’s upright tank was not taken from Cobb; it was any tank of the prior art adapted by Volz to his purpose of saving floor space and enabling the dirty bottles to be fed into the machine in the basement and discharged clean on the floor above, where they are to be used. Volz’s arrangement of the familiar chains and sprockets was not copied from Cobb, but was designed to balance the ascending and descending chains and bottles.

Volz did not extend a “straight cross-piece” from chain to chain to make his carrier, “said carrier having openings through which the bottles are inserted from the outside, and receptacles inside the carrier about said openings to receive the bottles bodily”; but between the ■chains he fastened an integral openwork rack by means of lugs at its central axis. One side of the rack would be as much a straight crosspiece as the other.

Instead of being a colorable evasion of Cobb’s specific “receptacle,” Volz’s rack is an adaptation of Dodge’s integral centrally-secured buckets to bottle-holding purposes, well ■designed to co-operate with the upright tank and the particular arrangement of the chains and sprocket wheels therein. On a vertical chain a balancing of weight on each side thereof is manifestly desirable. These, and all the other differences, were before the Patent Office.

The granting of Volz’s claims under the circumstances was a virtual finding that Volz was an independent improver in an open field, and we think such a finding is correct. The decree is affirmed.