Page:Federal Reporter, 1st Series, Volume 8.djvu/334

 320 PEDKRAL REPORTER. �air, external air wonld be furnished in sufficient quantities to pro- duce the required current at the burner. �The affidavits of Messrs. Henry B. Eenwick and John E. Earle, the experts for the defendant, do not deny the novelty of the Irwin tubular lamp, made either under patents 73,012 or 89,770. I mean that the novelty of the structure as a whole is not denied. The afi&da- vits point out that previous patents h ad tubes for conveying heated air or fresh air to the flame, and each expert treats the respective Irwin inventions as new examples, respectively, of former classes of lamps. �In Irioin v. Dane the court came to the conclusion that the patentee had, by bis successive combinations of devices, beginning with 65,330, introduced a new principle or set of prinoiples into the construction of kerosene lamps and lanterns, and had entered upon a new field of invention. Neither can it apparently be denied that Irwin first made a hand kerosene lantern which could be relied upon when oscillated in the open air and exposed to currents or blasts of wind. The reason of its success must be that a hand-lantem, with a globe of ordinary size, needed a supply of external air, which must be furnished in a continuons and non-reversible current, and that Irwin's lantern furnished fresh air to the flame in such manner and by such means that the current was ample, continuons, and irreversi- ble, and that the flame was not interfered with by cross currents. �-Two facts seem to be established: (1) That Irwin's hand lantern, made in accordance with patent 89,770, was a novelty and a success; and (2) that it owes its success to the introduction of external air by the devices used, in combination with the other parts of the lantern. �The question of infringement remains to be considered. Upon a motion for preliminary injunotion the plaintiffs must establish the point of infringement beyond a reasonable doubt, and as this ques- tion often depends upon the proper construction of the patent, its claims should ordinarily have been construed by a court of competent jurisdiction, or should have been practically construed by the consent and acquiescence of that part of the public which is cognizant of the extent of the monopoly. In this case it is contended by the defend- ant that its lanterns, having tubes disconnected with each other and incapable of receiving heated air from the globe, are not within either of the claims of No. 89,770, and therefore are not within those claims when repeated in the same language in re-issue 8,598. There is good reason for advocating this opinion, and therefore the motion cannot be granted as to those claims of the re-issue. �It is next claimed by the defendant that the conduits of the first ��� �