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what were once regarded as essential characteristics of the septic tank, does not extend, and could not by any possibility extend, to the primary and fundamental distinction, pointed out in the opinion, between a septic tank and a settling tank, namely, the difference in the method of sewage treatment in the two tanks. The change simply amounts to this, that it has been found by experience that a septic tank may be exposed to the atmosphere; in other words, that neither the total exclusion of air and light by means of an air-tight tank, nor the formation of a thick scum on the top surface of the tank, which produces substantially the same effect, is essential to a practically operative tank. The reason of this is not because air and light are not destructive to putrefactive action, but because the character of ordinary sewage is such that air and light will not penetrate to any distance beneath its surface. From this statement it is manifest that if the evidence upon this point contained in these affidavits had been in the record at the hearing, it would not have affected the conclusions we reached respecting the Glover patents. Those conclusions were not dependent upon the necessity of either making the septic tank air-tight, or permitting the formation of a scum upon the top surface of the tank, but they were based upon the many grounds set forth in the opinion, which it is unnecessary at this time to restate.

The further evidence contained in these affidavits concerns two points upon which a great deal of evidence appears in the record, and which were fully presented at the hearing, namely, what Glover told other people about his discovery of the disappearance of the sewage in his Brockton cesspools, and the proper construction of the Glover patents.

As to the first point, it may be said that this whole class of evidence has little or no bearing upon the real question in this case, which is, not what did Glover discover in his Brockton cesspools, but what do the Glover patents disclose and claim as Glover's inventions or discoveries.

With respect to the second point, it may be said that it is for the court to construe the Glover patents; and, further, that we find nothing in these affidavits which would lead us to modify the conclusions we have already reached respecting the actual inventions covered by those patents.

The sewage art relates to the disposal of sewage by treatment. The particular problem with which we are dealing is the treatment of sewage in tanks. Sewage is treated in tanks in two ways, or by two distinct methods, known as "sedimentation and septic.” The fundamental distinction between these two methods is the length of time in which the solid matter of the sewage remains in the tank. By the first method the solid matter only remains in the tank a short time, or long enough to settle, and is then removed from the tank. the second method the solid matter must remain in the tank a considerable period of time, or long enough to insure its destruction by putrefactive action, and the metallic deposit which remains is not removed from the tank for months. The tank in which the sewage

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is treated by the first method is called a settling tank. The tank in which the sewage is treated by the second method is called a septic tank. When Glover discovered the disappearance of the solid matter in his Brockton cesspools, or tanks, he had not discovered the septic tank, because he had not discovered the septic method of the treatment of sewage in a tank. In other words, he had not discovered that this phenomenon which he saw was caused by the long retention of the solid matter in the tanks; or, to vary the form of expression, he had not discovered that it was by reason of this peculiar treatment of the sewage in the tanks that the solid matter had been destroyed. Nor did Glover, so far as appears by this record, including the present affidavits, ever have any conception of the principle, mode of operation, or process, involved in the treatment of sewage in a septic tank. Neither in the tanks of his first patent, nor in the primary filter beds of his second patent, do we find any description or suggestion that the solid matter must be retained in the tanks for a considerable period of time in order to cause its disappearance. Upon this vital point both patents are equally silent.

silent. Further than this, if Glover had had any proper conception of a septic tank, and still more, if he had intended to embody that conception in his first patent, it is simply inconceivable that he should have described those tanks as “depositing in each tank a portion of the matter held in suspension,” and then followed this with the statement: “I am aware that sewage has been caused to flow through a series of tanks, depositing in each a portion of the matter held in suspension, but I am not aware that such tanks have ever been covered by a structure,” etc. roboration of this language, it appears that 13 years later, in the file wrapper of his second patent, he makes the following statement respecting these tanks:

“Applicant's former patent, 258,744, does not show filter-beds. It contains simply a series of tanks in which the sewage is acted on only by sedimenta

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tion."

With respect to the second patent, it is also equally inconceivable that if Glover had had any proper conception of a septic tank, and had intended to embody that conception in his patent, he should have begun his patent as follows:

“This invention has for its object to permit the filtration of sewage on a large scale without making the same offensive; and it consists of an apparatus comprising a series of primary filter-beds and means for charging the same with sewage," etc.; and should further have described these beds in the terms which follow in the specification.

The whole structure of the complainant's argument appears to be based upon the following propositions: First, Glover discovered the septic tank; second, it follows that Glover must have intended to incorporate this tank in his first patent in the form of his series of tanks, and in his second patent in the form of his series of primary filterbeds; and, third, it has been shown, in the light of what is now known about septic tanks and septic action, that both the tanks of the first patent and the primary filter-beds of the second patent are capable of the treatment of sewage by the septic process. The first two prop

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ositions, in our opinion, are clearly unsupported by the evidence. As to the last proposition, it may be observed that the fact that the Glover apparatus described in his patents can be made to operate, in the present state of the art, by a process which he did not discover and does not disclose in his patents, does not entitle him to a monopoly of that process under the patent laws of the United States.

The petition of the appellant for permission to apply to the Circuit Court for leave to reopen the case is denied, and mandate may issue forthwith.

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(Circuit Court of Appeals, Second Circuit. April 2, 1906.)

No. 113.

PATENTS-INFRINGEMENT-BRUSH.

The Shepherd patent, No. 601,405, for a brush having a reticulated back, the openings in which extend between the bristles having the greatest diameter at the rear of the brush "and decreasing in diameter to the face thereof" is limited by the prior art and by the proceedings in the Patent Office to a construction in which the openings so decrease in diameter from the rear to the front of the brush back, and is not infringed by a brush in which the openings are of uniform diameter, except for a bevel at the back extending but a short distance.

Appeal from the Circuit Court of the United States for the Southern District of New York.

This cause comes here upon appeal from an interlocutory decree adjudging the validity, and infringement by defendants, of complainant's patent, No. 601,405, granted to him March 29, 1898, for a brush, and ordering an injunction and accounting.

For opinion below, see 138 Fed. 83.
J. L. Levy, for appellants.
Arthur v. Briesen, for appellee.
Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.

PER CURIAM. The object of the patentee was "to overcome the difficulties heretofore found in open-back brushes,” and “to produce a strong and efficient” one “at little cost.” These difficulties were due to the fact that the openings in the backs of such brushes were customarily so made that “the least material is provided where the bristles are mounted, and where the most strength and material are required,” and, therefore, it has been found "impracticable to mount the bristles near the edge of the brush, so that they will project outwardly from a longitudinal median line, as is illustrated in the drawings."

The manner in which the patentee proposed to overcome these difficulties is set forth in a single claim, which is as follows:

"A brush having a reticulated back, the openings in which extend between the bristles, said openings being of the greatest diameter at the rear of the brush and decreasing in diameter to the face thereof whereby the most material is provided at the face or bristle-receiving side of the brush back."

The limited scope of the claimed invention is sufficiently shown by the file wrapper. The application was rejected on references to Maloney patent, No. 557,844, and Ashburner patent, No. 381,749. There11pon, the applicant made sketches distinguishing his construction from these references, the sketch of the Ashburner brush being practically identical with the construction of the defendants' brush. The claim was again rejected on Maloney, the examiner adding that:

"Whether the openings are of the greatest diameter at the rear of the brush or not is regarded as immaterial but such openings are old as shown by the patent to Osborn, No. 457,007, August 4, 1891, in tooth brushes."

Thereupon, the applicant inserted for the first time the words found in the claim, “whereby the most material is provided at the face or bristle receiving side of the brush back," and said as follows:

"It is not merely a question whether or not openings in the brush back are of the greatest diameter at the rear of the brush back as assumed by the examiner, but the claim likewise defines that the said openings are 'decreasing in diameter to the face thereof' (of the brush back) whereby the most material is provided at the face or bristles receiving side of the brush back where the greatest amount of material is needed in which to support the bristles and where greatest strength is required."

The defendants' brush is provided with longitudinal openings, widened by a bevel at the rear of the brush, which are rectangular from a point commencing above the line of the top of the holes for receiving The bristles, with the result that said openings are not “decreasing in diameter to the face thereof,” and the most material is not "provided at the face or bristle receiving side of the brush back,” because, barring the bevel at the extreme back, the openings are of the same size, and the same amount of material is provided during their entire length, thus having the same construction as was shown in said Ashburner sketch, filed by the patentee during the pendency of his application. The single technical ground on which infringement is claimed is that the claim may be read to cover any decrease in diameter toward the face of the brush, and, therefore, to cover the bevel at the extreme back of the brush.

But this interpretation ignores the express language of the claim, and the claimed structural results of the diameter of the openings decreasing “to the face,” and of the consequently increased material "at the face,” whereby the brush is strengthened and the bristles may be projected outwardly. No such result is accomplished by the defendants' brush, wherein there is no departure from the prior art in the direction of the patent, because it is in effect the Ashburner brush, with a negligible or merely ornamental bevel at the rear of the brush back, such as is shown or suggested in various brushes of the prior art, and such as Shepherd had himself shown in his earlier application. Even if it had not been so shown, that fact would be immaterial upon the question of infringement because, as already pointed out, the whole of the bristles are below the bevel and, therefore, the bevel does not extend to a point where it can affect the construction or operation of the brush in any way.

The decree of the court below is reversed, with costs.

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GILLETTE V. SENDELBACH et al.
(Circuit Court of Appeals, Seventh Circuit. April 10, 1906.)

No. 1,216.
1. PATENTS-SUIT TO COMPEL ISSUANCE-SUFFICIENCY OF EVIDENCE.

Where the question which of two applicants for a patent for the same invention was the true inventor depends on questions of fact, the court, in an action brought under Rev. St. § 4915 [U. S. Comp. St. 1901, p. 3392], by the unsuccessful applicant to compel an issuance of the patent to him, must be very clearly satisfied that the decision of the Patent Office tribunals between the two was erroneous before it will be justified in reversing the same.

[Ed. Note. For cases in point, see vol. 38, Cent. Dig. Patents, $$

162-166.] 2. SAME-HUB CENTERS.

Complainant held, under the evidence, not entitled to the issuance to him as the true inventor of a patent for the subject matter of claims 1 and 2 of the Sendelbach patent, No. 651,276, for a wooden center for a hub.

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Appeal from the Circuit Court of the United States for the District of Indiana.

Fred L. Chappell and Thos. A. Banning, for appellant.
Melville E. Church, for appellees.
Before GROSSCUP, BAKER, and KOHLSAAT, Circuit Judges.

BAKER, Circuit Judge. Sendelbach, on an application filed March 9, 1900, received patent No. 651,276, June 5, 1900, containing these claims :

“1. As a new article of manufacture, a wooden center for a hub, consisting of a short cylindrical block having ends lying in planes at right angles with its axis, radial mortises for the spoke tenons, a central longitudinal bore, and metallic bands encircling it at its ends, said bands lying entirely outside the line of the spoke mortises.

"2. The combination with a wooden center having radial mortises and flat ends lying in planes at right angles with the axis of the hub, of a metallic box provided with a collar fitting against one end of said center, a metallic sleeve surrounding said box and having a flange fitting against the other end of said center, means for clamping the said parts together, lengthwise, and spokes inserted into the mortises in said center and sustained against lateral pressure by the wooden center only."

Gillette, on January 3, 1901, filed an application which contained, among others, the two claims above recited. The examiner of interferences decided that Sendelbach was the inventor of the subject-matters in issue. That decision was affirmed by the examiners in chief, reversed by the Commissioner, and finally affirmed by the Court of Appeals for the District of Columbia on June 2, 1903.

Afterwards Gillette began this suit, under section 4915 Rev. St. [U. S. Comp. St. 1901, p. 3392], to obtain a decree adjudging that he was the inventor of the subject-matters in controversy and directing that a patent be issued to him; and he prosecutes this appeal from a decree dismissing his bill for want of equity.

Whether the original conception was Gillette's, whether he disclosed it adequately to Sendelbach, whether Sendelbach was charge

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