Lensch

In this action brought by appellants for infringement of their patent, appeal was taken from the order dismissing the action on the ground of non-infringement.

This is the second chapter of litigation in this court involving patents in the field of metal spraying. In Emmett v. Metals Processing Corporation, 9 Cir., 118 F.2d 796 , we considered the process of metal spraying. The present litigation involves a machine used in the process. The history of the entire field of uniting metals probably begins with either the discovery that two pieces of metal could be united by melting, or the discovery of the simple weld long used by the blacksmith.

Morf patent No. 1,128,175 issued February 9, 1915 “relates to a method according to which glass or other substances hereinafter referred to, preferably in the form of rod or wire, is melted, divided and thrown onto a surface under considerable pressure, whereby cohesive coatings of any desired thickness are produced”. Several different methods are shown but the first is utilized by the patent now in issue. Such method discloses a rod being pushed or fed through a tube, which acts as a guide therefor, being melted by ignited gas emitted from…

I dissent.

The Lensch apparatus is so conceived and constructed, contrary to all prior art, as to leave the metal feeding rod and the feeding rod mechanism clear of housing and from other mechanical features of the apparatus, and thereby enables friction droppings from the fuse metal rod to clear the apparatus, and allows the liberation of gas, avoiding the possibility of backfire, and allows a clear view of the metal rod feeding mechanism during operation. In my opinion the trial court was right in holding these improvements to constitute invention. And, too, it is well to remember that the burden is upon him who attacks the validity of a patent.

Unquestionably, as the trial court held, the patent in suit has a narrow range and *657 the patented features do not purport to constitute a discovery for accomplishing a new and useful service. But it will not do to resolve away the property interests of inventive minds by attributing a distinct advance in the art to the catchall of mere mechanical skill. Improvements are made on an article in use, and some are clearly mechanical refinements devoid of advance ideas. Such are not invention. But the Lensch apparatus is more than a…