Mettler

Appellant has appealed from a decree of the trial court dismissing his bill of complaint which alleged infringement by appellees 'of patent No. 1,440,614 issued to him for a gas burner. The gas burner used by the appellee Los Angeles Gas & Electric Company, which is claimed to infringe the appellant’s patent, was manufactured by the appellee Peabody Engineering Company. The trial court sustained the validity of the patent, but held that, in view of the state of the prior art, it should be narrowly construed, and that, when so construed, the appellees’ device did not infringe. The patent claim which the appellant asserts was infringed by the appellees’ device is claim No. 3 of the Mettler patent, which reads as follows: “In a combustion unit, an open ended air tube, a gas chamber surrounding the walls of the tube, and a block of refractory material abutting against one end of the tube, and the wall of the tube being formed with a series of gas discharge orifices adjacent the block and opening to the aperture in the latter at an inclination to the center line thereof.”

The trial court found that in the summer of 1921, several months before Mettler applied for his patent, the…