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April 23, 1936

FRICK et al.

The opinion of the court was delivered by: BYERS

BYERS, District Judge.

In this cause in equity, the plaintiffs allege that the defendant infringes patent No. 1,896,774 for a "liquid atomizer." The device is a metal oil burner, in which fuel oil is broken up into a mist so as to be ignited.

The plaintiff Frick is the patentee, and the corporate plaintiff holds the exclusive license to make, use and sell throughout the United States.

 The defendant Crisp was formerly the vice-president of the corporate plaintiff, and when engaged in its business he met the patentee who was the chief engineer on an oil-burning vessel; the latter had encountered problems in the operation of the Coen device (hereinafter discussed) with which his vessel was equipped, and had conducted experiments for some time in the effort to overcome difficulty with smoke and to devise something less expensive in replacement because the burners wore out quickly.

 Frick was successful in his efforts, showed his model to the defendant Crisp, and suggested that he adopt burners like it, and sell them as a side-line to his soot blower which he was then marketing.

 To this Crisp soon agreed, and delivered Frick's model and drawings to his own patent attorney, who prosecuted the application for Frick and obtained the patent in suit. That is, drawings were sent to the corporate plaintiff, and on May 15, 1931, Crisp signed a letter as vice-president, acknowledging their receipt, reciting that his company was given authority to authorize search to determine patentability, and that if "patents are obtained they are to be the sole property of the patentee."

 On July 15th the license agreement was signed, and constituted the Engineers Supply Company, Inc., the exclusive licensee. Application was filed July 27, 1931, and the patent was issued February 7, 1933.

 The licensee has caused to be manufactured from 8,000 to 10,000 of the burners, and has paid Frick royalties of from $1,500.00 to $2,000.00, from which commercial success may be deemed to have been established and is accordingly found.

 Crisp left the licensee's employ in January, 1935, and immediately embarked upon his own venture, which includes the sale of the device alleged to infringe.

 The questions for decision are validity and infringement.

 As to the latter, it may be said that the devices are substantially similar. The slight variation requires brief explanation:

 The burners are of two members, and assembled are about 1 to 1 1/4 inches in height and of a diameter of about 3/4 of an inch below a collar having a knurled surface to permit of engagement with the oil supply pipe. The two parts called the cap and the plug are held in engagement by screw threads; that is, the plug is screwed into the cap. The latter is cylindrical to a depth of about 1/2 inch below the collar, and the threads upon its interior engage the threads of the plug.

 On opposite sides, this cylinder is cut away to a depth of 5/8 of an inch or more, the openings having a width of about 1/4 of an inch. These openings are oil channels, and when the burner constitutes the end of the oil pipe to which it is affixed, the oil flows through them toward a circular chamber (called the whirl chamber) in the interior of the assembled burner, having parabolic sides tapering toward a small circular aperture at the end, through which the oil emerges as a fine spray.

 Entrance to that chamber is had through two or more slots which are intended to register with the channels, and are cut in the upper part of the plug; the interior exit of those slots impinges upon the annular conical portion of the inner wall of the cap; this relation of the slots to the interior construction of the cap completes the passageway for the oil from the said channels to the whirl chamber.

 These slots are tangential to the periphery of the base of the chamber so that the course of the stream of oil is toward the upper aspect of the chamber opposite the point of entrance, rather than directly across the center of the chamber at the level of the outer end of the slots, which would be the case if the slots were radially disposed, and did not incline as shown in the drawings.

 The stream of oil thus is thrown around the interior of the chamber, and outward, due to the shape of the walls, and pressure, and so emerges through the aperture, not as a stream but as a spray or mist partially volatilized.

 The differences in the structures are two: (a) The defendant's has a collar or flange below the entrance slots which have been described, so that, as the oil flows through the channels, it needs to pass through these lower slots before entering those which conduct it to the chamber. These lower slots are tangential to the ...

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