This was an action at law to recover damages for an alleged infringement of two certain letters patent issued to the defendant in error by the United States, — one, No. 11,383, which was a reissue, and the other a design patent, No. 22,911. The validity of both patents is challenged by the plaintiffs in error. In respect to a reissued patent the settled law is, as recently declared by the supreme court in the case of Topliff v. Topliff, 145 U. S. 156, 170 , 12 Sup. Ct. 825, 831:

In the case cited the court proceeded to say:

The statute upon the subject, and thus construed by the supreme court, is as follows:

Prom the statute and from the decisions of the supreme court, it is clear that it is essential to the validity of a reissued patent that it be for the same invention as the original patent, as such invention appears from the specification and claims of such original.

*856 Turning now to the patent to the defendant in error, in lieu of which his patent 2To. 11,383 was issued, we find the object of his invention therein described declared as follows:

The specification followed, making reference to annexed drawings for illustration, describing a casing, A, of a segmental or parabolic form, in horizontal section, the axis being in a vertical line, and a corrugated or other reflecting surface, B, fitted around the inner surface. The exterior form of the back, the inventor declared, “is adapted to fit into the fireplace after the basket and ash pan have been removed; but the casing may be made in other forms without altering the character of my invention.” The bottom of the casing, B1, is described as having a large opening through the center, into which the oil reservoir of the lamp, 0, is fitted. The reservoir is of large size, and has certain described handles, D, upon each side, by which it may he conveniently taken out or replaced when necessary. The burner, the invent or declared, may be of any well-known or suitable construction, and has a glass chimney, E, extending up into the upper, portion of the apparatus. The bottom, B, is described as supported upon a base, F. which has the rear portion approximating in shape to the rear of the curved body, A. The base is described as being of considerable depth, so as to allow the lamp reservoir to be suspended within it without touching the surface upon which the apparatus stands, and the inventor adds:

The specification proceeds:

Having thus described his invention, the inventor added what he claimed as new and desired to secure by letters patent, as follows:

Although it is quite evident from the specification and claims of this original patent that the construction claimed and thereby patented was a stove for use in, and in connection with, an open fireplace or grate, it does not follow that the thing invented may not be used elsewhere. That there is no essential change in the specification contained in the reissued patent is conceded by the plaintiffs in error. The claims of the reissue are undoubtedly broader than *858 those of the original. They omit all reference to a fireplace and grate. But neither a fireplace nor a grate constituted any part of the invention. The claims of the reissued patent also omitted certain elements which were embraced in the claims of the original patent, but which really constituted no part of the invention; that is to say, the first claim of the original patent made the “wheels or rollers” upon which the stove is supported one of the elements of 'the claim. But there is no invention in putting rollers under a stove or other thing to make it movable, as was held by the supreme court in Hendy v. Iron Works, 127 U. S. 370 , 8 Sup. Ct. 1275. A claim which made what was no part of the invention one of its elements, and consequently essential to its infringement, was therefore clearly defective, which defect was properly cured by omitting the improper element from the reissue. For the same reason the handles of the reservoir, which were made an element of the second claim of the original patent, but which, being attached only for the purpose of the more conveniently removing the reservoir, constituted no part of the invention, were properly omitted from the claims of the reissue, thereby correcting that defect of the second claim of'the original patent. The same may be affirmed in respect to the length of the lamp chimney described in the third claim of the original patent, and in respect to the cup-shaped shield by which the lamp chimney is protected from liquids. We are of opinion that the reissued patent did not go beyond the real invention, as shown by the .specification and claims of the original patent.

Nor does the fact that, intermediate the issuance of the original patent and the application for the reissue, a patent was granted to F. E. Browne for an “appliance for heating, illuminating, or culinary purposes,” defeat the reissue. That Browne was aware of the complainant’s original patent is manifest from this statement in his specification: •

His claims are:

Browne thus substituted for the metal base ring of the Myers stove a base ring of wood, or other non beat conducting material, and added a heat-deilecting drum on top. With these exceptions, the first claim of the complainant’s original patent, which is the same as the fifth claim of the reissue, covered the construction for which Browne’s patent was issued.

In respect to the design patent, we are not prepared to say that it does not show originality and the exercise of the inventive faculty. None of the stoves relied on to defeat this patent show a semicylindrical body or case. Form and shape are elements of a design. In Hammond v. Agricultural Works, 17 C. C. A. 356 , 70 Fed. 716 , cited by the plaintiff's in error, what the plaintiff there did, and all that he did, was to substitute for the platform which had been previously used on the rear end of certain existing street cars an open compartment precisely similar to the open compartment which was in use at the h'ont end of those cars, which we held was nothing more than the exercise of the imitative faculty. The judgment is affirmed