(dissenting) .
I have been unable to find any invention in the patent sued on in this case. The accused automatic heating plant defendant installed in his home does undoubtedly include many elements produced by true invention. It burns slack coal stoked by cleverly devised mechanisms electrically operated and controlled by ingenious little thermostats. One set of the thermostats activates the coal stoker according to the temperature in the rooms, and another thermostat is placed closer to the fire in order to set the stoker going when the fire gets so low that it threatens to go out. The more common automatic oil burning furnace with a pilot light is thus intended to be closely approximated. But there is no contention under the patent sued on that the patentee invented any of the mechanisms, devices or appliances that make up the defendant’s accused heating plant. They are brought together in an aggregation where each performs the exact functions and none other that their inventors intended. Toledo Pressed Steel Co. v. Standard *632Parts, Inc., 59 S.Ct. 897, 83 L.Ed. 1334, U.S. Supreme Court, May 29, 1939. They each and all represent work done by other people.
The most the patentee in this case can say is that he first conceived and applied the idea of using the thermostat to turn the stoker on just before the fire in the furnace gets too low. He discloses no particular study of how hot a fire has to Toe maintained to ensure its picking up when stoked, and if he had any positive thought where a thermostat had to be put to activate the stoker when the fire threatened to go out, the thought was that it had to be in the fire-pot (in the combustion area).
The accused heating plant of defendant has the fire preserving thermostat in the breeching of the furnace outside the fire-pot and some distance away from the fire. Therefore, to sustain the plaintiff’s suit it must be held that the plaintiff has a monopoly on placing a thermostat in any such relation to the fire that the thermostat will function before the fire gets too low to be revived by stoking. The vendors of' the thermostat have long advertised to the public that their thermostats may be placed practically anywhere to perform their well known function at any pre-determined temperature. Certainly it is common knowledge that when a mass of live coals ceases to throw out heat the fire is going out. It seems equally obvious that a thermometer placed near it will approximately reflect the condition of the fire. The patentee’s suggestion to get a thermostat at the handiest store and place it in relation to the fire so as to activate the stoker at some proper low state of the fire seems to me to have no semblance of invention. It simply repeats the teaching of the thermostat advertisements which fully explain that the devices can be used wherever electric current is to be turned on or off at pre-determined changing temperatures. I do not concur in allowing the plaintiff any monopoly in the furnace which, as I see it, neither includes nor imitates anything invented by him.