WOLD v. THAYER & CHANDLER et al., 148 F. 227

BAKER, Circuit Judge, after stating the facts, delivered the opinion of the court. Burdick was not the first to devise an instrument for blowing pigment upon paper or canvas. In 1881 Curtis made one substantially like the atomizer used for medicinal purposes, with the nozzles for liquid arid for air exterior and nearly at right angles to each other. Armstrong in 1885 by an air-nozzle blew paint or ink from the point of a pen, which could be spread to increase the flow. Burdick himself (Nos. 402,898, 434,105 and 474,157) made endeavors along these same lines, but neither form has proved successful.

Peeler and Walk-up tried a needle, reciprocating continuously through a paint receptacle so as to feed at each stroke a little paint in front of an air-jet. Walk-up’s final device of this kind (No..310,754) met with some success; but the Burdick brush of the patent in suit seems to have supplanted it completely. Burdick was the first to make an air-brush on the plan of concentric nozzles; and the primary character of his invention is not to be destroyed by references to patents for oil-burners (Burrell and Moore) in which an oil-nozzle and a steam-nozzle are concentric.

Of course, the oil-burners cannot he used in painting pictures. And, if the arts are analogous enough to charge Burdick with notice of the concentric nozzles in oil-burners, nevertheless it required invention to adapt them to co-operate with other elements, not present in the oil-burners, so as to produce Burdick’s unquestionably new combination.

The claim that the brush of the Burdick patent is inoperative is founded upon the contentions, first, that the patent must be held to he limited to a structure in which the air-nozzle is forward of the paint-nozzle; and, second, that no brush of this type can be operative unless the nozzles, in cross-section, are exactly in the same plane. Nothing in the prior art compels the limitation. So the question is whether Burdick unnecessarily restricted his claims. Whatever may be said of the other claims, we think the first is not obnoxious to the objection.

In that the nozzles are described as “a receptacle for paint conical at one end and perforated for the delivery of the paint” and “a cap covering the conical end of the body and forming an air-space between and perforated in line of the said delivery.” Nothing is found in the specification that prescribes the absolute or the relative sizes of the orifices; and, of course, the drawings are merely illustrative, not working, plans. If the orifices are of the same size, the air-disehargc is in front of the paint-discharge.

But it is evident that the orifice in the air-cap could be cut so that the discharges would be in the same plane. The second contention is based on appellant’s testimony. But his theory is upset by the exhibits and by his own acts in connection with the patent he procured. The air-brush is a small implement, and in determining the relative positions of the nozzles microscopes and uii-> crometers are used. Thayer & Chandler were merchants of artists’ supplies, and they employed appellant as an expert in the art to make air-brushes for them under the Burdick patent,'which they had purchased.

The brushes that were put out under the Burdick patent were very successful. In manufacturing them appellant discovered that, if the orifice in the exterior air-cap was cut back to a point where the paint-discharge was in front of the air-discharge, the brush would work better. He obtained a patent covering that arrangement. By his manufacture under the Burdick patent and by the assignment of his own patent, appellant put himself in a position where he should not be heard to deny the operativeness of the Burdick brush or an

interpretation of the Burdick patent which includes all relative positions of the nozzles from any distance of the air-nozzle in front of the paint-nozzle back to a point where they are in the same plane. And, being the assignor, he cannot be permitted to assail the validity of his own patent Siemens-Halske Electric Co. v. Duncan (C. C. A.) 142 Fed. 157. Outside of colorable changes, such as reversing movable parts, the claim of noumfriugement rests on appellant’s insistence that in his brashes the nozzles are always in exactly the same plane, and that this construction is not within either patent.

If appellant was uniformly successful in carrying out his declared method, he would infringe only the first claim of the Burdick patent. But the exhibits seem sufficiently to prove that sometimes he fails. Thereby he infringes, according to the direction of his miss, either the other claims of the Burdick patent or the claims of his own. The decree is affirmed.