(dissenting).
For reasons adequately stated in the opinion of the District Judge, I am of opinion that the patent in suit is infringed by defendant and that the decree appealed from' should be affirmed. It is perfectly clear to my mind that the accused device of defendant is the equivalent of the device which was held to infringe in the Reeke-Nash suit; and I do not think that defendant should be permitted to evade the decree therein rendered by any such inconsequential changes in structure as are here involved. As to the rounded inside corner o-f the accused device, I do not think this sufficient to avoid infringement. As said by the master in the Reeke-Nash suit:
“Nothing in the prior art restricts the claims of the patents in suit heretofore enumerated, which define the apparatus or combination of elements patented therein to the preferred form of Swan’s patented manifold with square rectangular cross-section, or with sharp right angled inside-corners or with flat walls opposite the riser and at the ends of the header, and nothing in defendant’s adoption of the-manifolds here charged to infringe of round cross-section with slightly rounded inside corner and wholly or partly rounded walls opposite the riser and at the ends of the header, is in such accordance with any prior art manifold or the teaching of' any prior art patent or publication or is-in such accordance with any prior art construction with respect to function, mode of operation, or results that any of defendant’s manifolds can be said to fairly differentiate from the patented construction or combination, or can be said to be made in accordance with or in substantial accordance with any manifold or complete combination shown to have existed in the prior art.”
As pointed out by the judge below, this-finding, along with the other findings of *311the master, was adopted without opinion by the District Court in the Reeke-Nash suit and presumably was affirmed by the appellate court. If not binding upon defendant upon the principle of res adjudícala, it is highly persuasive as to what our finding should be, not only because of its inherent reasonableness, but also because of. the high authority of the courts by which it was given approval. It is strengthened, not merely by its adoption by the learned judge below, but also by the fact that in reaching his conclusion upon the case he had the assistance of a most distinguished non-partisan expert.
It is not the sharp inside corners, but the sharp change in direction of the gas -flow caused by the outside corners which is the essence of Swan’s invention. As said by the Circuit Court of Appeals of the Sixth Circuit in the Reeke-Nash case (88 F.2d 876 at page 887): “Swan’s inventive concept consisted in bringing the fuel mixture from the carburetor to header in substantially straight lines, and so abruptly changing its course in the header and at the branches as to create a maximum turbulence at the points where direction of flow changed with resulting re-mixture of the heavy particles of gasoline and air. This concept was new. With it Swan combined forms which, while old, produced a straight line in the longitudinal flow of fuel mixture. This combination was new. The turbulence and its creation within a structure which avoided the dangers of excessive puddling were his main contribution to the art.”
The patent in suit made a valuable contribution to the art. Its validity has been upheld in a number of suits brought in a jurisdiction whose judges are much more familiar than the courts of any other Circuit with questions affecting the various mechanical devices used by the automobile. Swan Carburetor Co. v. General Motors Corp., D.C., 42 F.2d 452, affirmed 6 Cir., 44 F.2d 24; General Motors Corp. v. Swan Carburetor Co. and Reeke-Nash Motors Co. v. Swan Carburetor Co., 6 Cir., 88 F.2d 876. Its validity has been upheld against this defendant, who has been held guilty of infringing it. The finding of non-infringement here is based upon an immaterial change in structure, which was ■before the court in the former infringement suit on a contention that the change was immaterial and that the device there ffield to infringe should be held not to infringe because of the immateriality of the difference. The finding of non-infringement is in direct conflict with a finding in one of the last General Motors cases affirmed by the Sixth Circuit, 88 F.2d 876; and its effect is that, while paying lip service to the validity of the patent, we in effect nullify it, and do so on the basis of the supposed resemblance of the accused device to a structure in the prior art, which had proven a failure and over which the device of the patent in suit had made an improvement of great value. With all respect to the opinion of my brethren, I feel constrained to dissent from their decision.