AURORA, E. & C. RY. CO. v. ECONOMIC ENGINEERING & CONSTRUCTION CO., 228 F. 40

KOHLSAAT, Circuit Judge (after stating the facts as above). There was no novelty in driving the ashes through the conduit to the tank by means of pneumatic pressure, nor in the use of an expansion tank. What the patentee claimed was the forcible discharge of water under pressure into and across the blast substantially at the point at which it is interrupted by the baffle so that the water will flow downward along the face of the baffle. At that point the blast, consisting of the ash-laden column of air ejected from the conduit against the baffle, would necessarily be greatly agitated and diffused.

The water applied at the point of contact between the blast and the baffle would necessarily intermingle with the ashes as spray and at the same time flow down the face of the baffle, serving, among other things, to prevent adhesion of ashes to the baffle. This idea in ash and other conveyors was new and possessed of merit. Appellant contends that, by reason of the location of its application of wafer at a distance of 30 feet from the tank or expansion chamber, its device does not infringe the patent.

The dust collector, movable elbow protectors, and automatic vent, in our opinion, are nothing more than improvements upon the main structure, if they amount to such. The so-called deflector is clearly the equivalent of baffle 9 of the patent. The mechanical arrangement of the two conveyors is practically the same, and the only substantial distinction between them is as to the place at which the water is delivered to the so-called blast.

If appellee is confined to the apparent language of the patent, wherein it seems to be stated that the water must be applied to the blast after it leaves the conduit and near to the place of its impact upon baffle 9, then it would also seem true that appellant’s device would not infringe; the underlying principle of the two being different. To these propositions we apply ourselves. Bassler’s theory was that the ash must not be saturated with water while in the conduit, because of its tendency to clog and choke the pipe.

He contends that appellant’s device applies the water in accordance with his patent at right angles to the line -of travel of the blast, at a point so near the tank 5 as to effect the passage of the water to the discharge end of the conduit and insure its delivery, practically, as free -water against the baffle or deflector, and before the ashes become saturated; that the blast travels at the rate of two miles per minute; that the time between the application of the water to the blast and its delivery to the baffle is negligible, and that during that time the ashes will not be saturated.

This method, he asserts-, delivers tire water to the baffle and blast at their point of contact. If this were so, it would be, essential to maintain that the application of the water acrosá and at right angles to the blast 30 feet away from the baffle is the equivalent of the application thereof called for by claim 4 of the patent, viz., “substantially at the point at which it is interrupted.” In the operation of the device of the patent, in order to secure ex-tinguishment of live coals, a large amount of water is required, which, besides being expensive, has other disadvantages.

For the alleged infringing device it is claimed that the mixing of air, water, and ash in the conduit facilitates saturation. It appears that there is a limit to the distance from the end of the conduit of the application of the water, that limit being approximately. 30 feet, in traveling which distance there is small tendency to clog on the part of the ashes. No other reason is shown.

It is not satisfactorily shown that the delivery of .the water, though under pressure, at a point in the conduit 30 feet away from the outlet thereof, crosses the line of travel of the blast, traveling at the rate of 176 feet per second, or 'whether it is not seized by the blast at its periphery and hurried against the baffle.

In the latter case it would not be projected across the line of travel of the blast. e The specification, in describing the patent provision for wetting the material delivered into the tanks, by introducing jets or streams of water “into the blast froth said conduit,” adds, “But my invention contemplates any suitable means for this purpose.” Claims 5, 6, and 8 each call for the discharge of water along the face of the baffle and across the “blast from said conduit,” while claim 4, as above stated, calls for “means to discharge water across said blast substantially at the point at which it is interrupted.” We can come to no other conclusion than that the patentee intended to limit his application of water to the blast after its discharge from the conduit..

The patent is by no means a broad one, and has but a narrow range of equivalents. Its whole trend corroborates the claim of appellant that the blast from the conduit must be delivered into the expansion chamber or tank in a dry condition. To hold infringement would strain the obvious meaning of the language of the claims. It was evidently the concept of the patentee that the ashes should be attacked by water while in a diffused condition, rather than when rushing through the conduit. We are not impressed with the suggestion that the principle, is tire same in both cases.

We hold that the means for an attack upon the blast after it leaves the conduit is an essential element of appellee’s combination. That element not being present in appellant’s device, infringement is not made out. The decree of the District Court is therefore reversed, with direction to dismiss the bill.