Page:Federal Reporter, 1st Series, Volume 2.djvu/708

 SHAEP V. TIFFT. 701 �16 Pet. 336. But where soine of the parts of the combîna- tion are new, and those parts are taken and used in the same manner, but with different things from the rest of the com- bination patented, a part of the patented invention is taken although the whole is not, and it is an infringement to that extent. Sellera v. DicJcinson, 6 Eng. Law & Eq. 544 ; Union Sugar Refinery v. Matthieson, 2 Fisher, 601. Here the hori- zontal plates bolted together in the center, with a diaphragm between them, were altogether new for thia pui-pose. They formed a suitable chamber for the mixed gas and air, after they had passed the diaphragm, and an external outlet use- ful in form and location. The defendant has appropriated these new parts to the same use by Connecting them with the horizontal diaphragm and other devices, to accomplish the same resuit as Kelly's combination, although the other devices are different from Kelly's. This is an infringement to that extent. Johnson v. Root; Curtis on Pat. § 332, note; Newton T. Grand Junc. R. W. Q Eng. Law ds Eq. 557. �It is said that fastening horizontal platea together in the center by a boit and nut, as these are, was old and well known before Kelly's invention, which is doubtless true ; but it was not a known method of forming a head for a bumer to a gas stove to make use of such plates. The object was not to fasten the plates together. It was to make a chamber for the inflammable mixture, after it had passed the diaphragm, and to provide a suitable outlet for it to the flame, so as to burn ail around the top of the burner. These plates, fast- ened in that way, Kelly discovered, would furnish the re- quired chamber, and an outlet for an unbroken sheet of the inflammable material, which was most desirable for the pur- pose. He patented that discovery in ail its parts, and ia entitled to the protection of it which the law affords. �As the plaintiff filed his disclaimer after suit brought, ho would not ordinarily be entitled to any costs in the suit. Eev. St. U. S. § 4922. But in this case the disclaimer was not necessary to sustain the patent to the extent it is held valid, was inoperative, in the view taken of it, upon the pat- ent, and has had no effect in maintaining the suit. Under �7* ����