*748On Rehearing.
PER CURIAM.The petition for rehearing in this case has been seasonably filed, and while it is not printed, or supported by certificate of counsel, as provided for by the above rule, yet in view of the peculiar situation of the president of this petitioner, and his evident impression that the case has not been fully understood and' properly disposed of, we have carefully re-examined the briefs and record in view of the arguments advanced in the petition. The assertions in-support of patent No. 617,942 do not controvert the findings of the opinion as to the prior art and Long’s testimony and need not be discussed. The case as to patent No. 634,838, the other patent involved in this petition, was argued by complainant on the former hearing, on the theory, as stated by its counsel, that:
“The invention of this patent further carries out the idea of the inventor in making a complete burner of the accepted type of a single piece of refractory material, thereby eliminating the use of metal entirely, excepting as a support.”
The petitioner now says, inter alia, as follows:
“It was new to form a burner with two straight diverging arms at an angle of about 45 degrees without a crook, or an elbow, in the arms. It was new to drill gas passages in those arms. It was new to locate a mixing chamber in the side of each arm. It was new to locate the mixing chamber at the side of the inlet of the large gas supply. * * * A few words more as to the court’s rendering of patent No. 618,239 which was invented after patent No. 634,838 and the patent papers were made out long after the application for the latter was made out, signed and sworn to by H. E. Shaffer. The court has seemed to treat of patent No. 618,239 as if it was patent No. 634,838. Patent No. 618,239 is of a solid bulb burner, its arms a part of the bulb, the bulb being a truncated cone. Every claim in this patent is in combination with a truncated cone or a gas reservoir, or both a gas hollow reservoir and truncated cone. The Shaffer burners are on a different plan, they do different and better work, cost much less money to make. * * * In patent No. 618,239 the discharge of gas is from the tip end of its converging tips. It has no arms in the sense that they are diverging arms, clear and away from its center stem. Its mixing chamber is in the end of the tip on a line with the tip, the same as in the Dolan and the Bullier, and all semi-Bunsen burners. * * * Compare this burner of patent No. 618,239 with, patent No. 634,838, which is not even a bulb burner, it has no body, its arms are diverging arms, at about 45 degrees each. The mixing chamber is in the side of the arms instead of in the extreme tip end as in the former, and is in its entire construction directly the opposite in construction. This No. 634,838-patent burner must be of steatite, and the former may be. If there be a distinction between the east and the west, then there is the same difference between patents shown and described by patent No. 634.838 and No. 618,-239, as they are equally opposites. They certainly belong to different classes of burners.”
That is, as to patent No. 634,838 it is.asserted that patent No. 618,239, referred to by the court as earlier than No. 634,838, was in fact for a later invention. The record shows that although the original application for patent No. 634,838 was sworn to before patent No. 618,239 was applied for, yet the latter was applied for and granted before the application for No. 634,838 was filed. It is further asserted that the construction shown in No. 634,838 was new and constituted-invention irrespective of the change in material.
*749When the president of this petitioner was examined on the trial of this case he was shown his Exhibit F, the burner from which the drawings of patent No. 618,239 were prepared, and his exhibit C, from which the application papers for the patent in suit, No. 634,838, were drawn up, and he then testified as follows:
“X-Q. 134. Now, coming to Exhibit E, this exhibit also has right angle tips, has it not? A. Yes. X-Q. 135. And the arrangement of the gas inlet and discharge passage and small aperture connecting them and the air inlets opening into the discharge passage, is substantially the same in this exhibit as in the others, is it not, referring especially to Exhibits 0 and E? A. Yes, sir. X-Q. 136. This Exhibit E also has diverging arms having diverging gas passages and converging gas exits and suitable air passages, has it not, or, if you object to the word ‘suitable’ we will leave that out of the question? A. No, sir. X-Q. 137. It has diverging gas passages and converging gas exits, has it not? A. Yes, sir. X-Q. 138. And inasmuch as you have testified that it was a success, you do not deny that it has suitable air passages, do you? A. No, sir; I do not X-Q. 139. Do you object, then, to calling the two arms right angle tips in this Exhibit E ‘arms’? A. They are not diverging arms. X-Q. 140. What kind of arms would you call them? A. They are called in the patent ‘inclined jet tubes.’ They are a solid part of the burner body, made with the burner body; there are no arms; are not intended for arms, but are attached and a part of the burner body, a solid piece.”
These admissions coupled with the statements in patent No. 634,838 seemed to be conclusive. In view, however, óf the new discussion of alleged differences of mechanical construction and of actual priority of invention in this petition it is thought that defendant should present its views as to the contention that the burner covered by patent No. 634,838 was for a totally different construction from any previously shown; that such construction, consisting in boring gas passages in the arms and changing the location of the mixing chamber, involved invention and is covered by the claims of patent No. 634,838 and that the inventions therein described were not anticipated or abandoned by reason of patent No. 618,239.
The clerk of this court is directed to send a copy of this petition to defendant and the defendant may have thirty days after receipt thereof in which to file a brief in reply to the above contentions.