I am constrained to dissent from the judgment of the court for these reasons, shortly stated:
The case stands on the patent, not on the patentee’s testimony. Nowhere in the patent is there reference to track problems in coal mines; nor does the patent intimate that the invention is directed to such problems, or even that the patented device is peculiarly adapted to mine transportation. Coal mines are not mentioned;' neither is reference made to problems arising from electric as distinguished from steam locomotion.
The patent is for “a railway track structure,” commonly known as a frog, without suggestion or limitation as to its place of use. If valid, a railroad company that uses the frog on the surface of the earth is as guilty of infringement as a mine operator who uses it beneath the surface. It belongs generally in the highly developed art of railroad construction and transportation. This claimed invention is, in the terms of the patent, directed to a problem of that broad art, namely, the habit of wheels to become grooved and to develop false flanges from wear and the consequent tendency of such a wheel to travel around the heel of a frog and cause the flange either to clip the frog’s point or take a course on the wrong side of the point. Described roughly, the device of the patent is a frog casting with two elements: One, extending arms shaped to receive the connecting rails without the use of fish plates; the other, a dip or incline of the arms on which a false flange can ride in gradual ascent and pass the joint without shock, with the result that the wheel will likely follow the proper track. Both elements were in a frog known as the Wharton frog in use for six years by the Pennsylvania Railroad Company at Broad Street Station in Philadelphia long .before the claimed invention, although fish plates were there used for added strength, and they are found separately in prior patents with and without fish plates. Letters patent No. 276,070 to Pierce, No. 631,808 to Nichols, No. 240,519 to Jeffrey, and No. 267,564 to Morden.
As the functions of these elements in the device of the patent are not joint but wholly separate, prior patents with these separate elements, in my judgment, validly anticipate the claimed invention. So also did the Wharton frog. I do not think that invention can be found in discovering (without specifying or claiming) the peculiar adaptability of this surface rail construction to coal mine transportation. Moreover, the plaintiff patentee consumed three years in procuring a patent (granted in 1909), delayed bringing this ac*387tion until 1920, and prosecuted it to a decree in 1926, nine months before the expiration of the patent. Of course, there is here no question of injunction. Yet the case should be studied and decided as though the plaintiff had brought án action in the youth of the patent instead of in its old age and the patent should be regarded as relating to tracks wherever constructed, whether above the surface, on the surface, or below the surface of the earth. When so viewed, I think the prior art invalidates the patent.