The burners submitted in this case manifestly infringe the Dolan patent. Examination of them shows that they are identical with burners advertised in the Acetylene Journal of October, 1904, by the Crescent Novelty Company as the “Gem” burner. Apparently they are offered to the trade on some theory that they have been so altered from the burners in the former suit, which went to the Circuit Court of Appeals (128 Eed. 599), as to escape infringement. Indeed, another advertiser in the same journal states that its burners are made precisely in the way directed by the final decision, and quotes a single passage from the opinion, as follows:
“If the defendants are correct in their contention that the Bullier burner is practical, successful, and operative when made of lava or steatite, they are at liberty to use the same, or they are at liberty, having closed the aperture at the extreme end of the tip, which admittedly furnishes the air envelope for the gas, to use the aperture whereby the mixing of air with gas is secured.”
This quotation must be read with the rest of the opinion, particularly with that part of it which describes the Bullier burner, the air passages of which “are located at such a distance below the head as to afford an opportunity for * * * a thorough mixing of air and gas; while in the patent in suit the small chamber end orifices are so located at the uppermost end of the burner as to apparently prevent such mixing.” The air apertures in these burners and in those shown in the advertisement are by no means Bullier apertures located so far below the orifice of combustion as to afford opportunity for the mixing of air and gas, but are Dolan apertures, so close to the tip as to facilitate the formation of the air envelope which is the feature of that patent.
Complainant may take order for preliminary injunction.