I dissent.
The Lensch apparatus is so conceived and constructed, contrary to all prior art, as to leave the metal feeding rod and the feeding rod mechanism clear of housing and from other mechanical features of the apparatus, and thereby enables friction droppings from the fuse metal rod to clear the apparatus, and allows the liberation of gas, avoiding the possibility of backfire, and allows a clear view of the metal rod feeding mechanism during operation. In my opinion the trial court was right in holding these improvements to constitute invention. And, too, it is well to remember that the burden is upon him who attacks the validity of a patent.
Unquestionably, as the trial court held, the patent in suit has a narrow range and *657the patented features do not purport to constitute a discovery for accomplishing a new and useful service. But it will not do to resolve away the property interests of inventive minds by attributing a distinct advance in the art to the catchall of mere mechanical skill. Improvements are made on an article in use, and some are clearly mechanical refinements devoid of advance ideas. Such are not invention. But the Lensch apparatus is more than a refinement of the original. On the other hand, appellees’ “Mogul” apparatus is about as near a perfect reproduction of the patented apparatus as a skilled mechanic would ordinarily make. Mechanically, it is similarly constructed, with the Lensch open features in place of the closed housing of the old machines. The “Mogul” by reason of adopting the changed structure of the patented article eliminates the three faults found in the machines of the prior art as heretofore mentioned — although admittedly the point of visibility in this apparatus is less pronounced than in the patented article.
I think the trial court was wrong in holding against infringement. The judgment should be reversed and the case remanded.