Hicks

The appellee, as plaintiff in the court below, obtained an *166 interlocutory decree adjudging infringement by tbe appellant of claims 9 to 17, inclusive, of letters patent No. 1,518,067, issued to the appellee on December 2,1924, for an “electric heater.” The said heater consists of an outer metallic grill plate -which sets against and covers an opening in the wall, a heating element behind the grill, consisting of one or more hollow vertically disposed refractory cor'es on which resistent wires are arranged, a reflector or inner shell of less area than the grill, and a back plate or outer shell, spaced from the reflector, so as to form an air chamber all around the reflector. Claim 9 is as follows:

The appellant was making and selling heaters under the patent issued to Wm. W. Weir, No. 1,494,654.

The appellee’s application was pending in the Patent Office from July 17, 1922, to December 2, 1924. The Weir application was pending from April 11, 1923, to May 20, 1924. It thus appears that both applications were pending simultaneously before the Patent Office, and for a period of 13 months, and it also appears that both applicants were represented by the same attorneys. At no…