The patent in controversy here, was "granted to the complainant Burrows for a furnace to be used in the manufacture of white oxide of zinc. Assuming, that the furnaces in use by the defendants, are within the scope of this patent, a fundamental question in the case, is, whether Burrows wa,s the first inventor of them.
Simply a question of fact, as this is, I do not deem it necessary to discuss the voluminous testimony touching it, especially, as this testimony cannot be fully comprehended. and properly weighed, without the aid of the models and exhibits in the case. A careful consideration of it, has brought me to the conclusion, that Burrows was not the first inventor of the furnace employed by the defendants.
In September, 1S52. Samuel Wetherill filed a caveat, dated in July previous, in the patent office, and. about that time, erected an experimental furnace, to illustrate a new method of producing white oxide of zinc, for which a patent was afterward granted to him. This experiment was successful; and the furnaces now complained of, as infringements, were originally constructed with •special reference to the practice of the Weth-erill process, and in substantial conformity to his experimental furnace.
Burrows made the application for his patent, in October, 1S52. but, it is sought to carry back his invention to the date of experiments, made by him, in the early part of 1851. According to the preponderating weight of the proofs, these experiments were unsuccessful, and, neither as to the form and design of the furnace used, or the method of its use, was the peculiar structure or special adaptability of the defendants’ furnaces indicated. The mechanical devices, which were common to both, are old, and could not be exclusively appropriated.
The scope of Burrows’ patent, in so far as it may be taken to embrace the defendant’s furnace, must, therefore, be limited to the date of his application, and, as the form and adaptation of their furnaces were devised by Wetherill, and the furnace was successfully used by him, before that date, the complainant’s bill must be dismissed, with costs, and it is so ordered.