Full opinion text
BAKER, District Judge. This suit was brought by Westinghouse Electric Corporation against Bulldog Electric Products Company, charging the infringement of seven (7) patents owned by the plaintiff company. These patents are: 1. Re. 19,887, O. S. Jennings, dated March 10, 1936, original application filed April 20, 1929, for panel circuit 'breaker; 2. U. S. Patent No. 2,060,472 to Jerome Sandin, dated November 10, 1936, application filed April 22, 1927, for circuit breaker; 3. U. S. Patent No. 2,073,103 to C. H. Hodgkins, dated March 9, 1937, original application filed August 4, 1933, for circuit breaker; 4. U. S. Patent No. 2,190,517 to O. S. Jennings, dated February 13, 1940, original application filed December 17, 1936, for circuit breaker; 5. U. S. Patent Re. 21,429 to C. M. Petersen, dated April 16, 1940, original application filed November 23, 1934, for circuit control device; 6. U. S. Patent No. 2,329,362 to R. H. Swingle, dated September 14, 1943, application filed April 14, 1934, for circuit breaker; 7. U. S. Patent No. 2,229,412 to O. S. Jennings, dated January 21, 1941, original application filed December 17, 1936, for circuit breaker. The plaintiff is a Pennsylvania corporation. The defendant is a corporation organized and existing under the laws of the State of West Virginia, but having its principal place of business in Michigan. There is no doubt that this court has jurisdiction of the proceedings, Title 28, §§ 1400 and 1338(a), U.S.C.; in fact, such jurisdiction has never been questioned. The commercial devices manufactured by the defendant and alleged to infringe upon the patents in suit are circuit breakers. Two types of circuit breakers are involved, and are made and marketed by the defendant under the names '‘Circuit Master” and “Pushmatic.” As every modern householder knows, an electric circuit is designed and intended to carry a predetermined load. If, for any one of several reasons, this load is increased beyond the intended maximum, a great deal of trouble will ensue. Electrical devices may be injured or destroyed, and the building in which the circuit is in use may be set afire. In the very beginning of the use of electricity, it became apparent that some safeguard must be provided against this danger. The commonest device consists of inserting in the circuit a piece of wire which has a relatively lower melting point’ than the wire comprising the rest of the circuit. When the overload occurs, this piece of wire becomes heated and melts, thus breaking the circuit. This is the ordinary and commonly used fuse plug. The fuse plug has some very definite advantages. It is sure, it has no mechanical parts to get out of order, it is easily calibrated for a given load, and it is cheap to manufacture. On the other hand, the fuse plug has definite disadvantages. In operation, it destroys itself and, once it functions, it must be replaced by a new plug. This necessitates the householder keeping a supply of extra plugs on hand. It is also easy for the householder, who finds himself with a blown fuse and no extra ones available, to circumvent the protection furnished as, for example, by putting a penny in the socket and screwing the burned-out fuse against the penny. This results in a complete circuit, which is entirely unprotected against overloads. A circuit breaker is a device which will break a circuit when a predetermined overload occurs, but which can be manually reset to restore the circuit. After such manual resetting, the'same protection exists as before the circuit was broken. Circuit breakers of this type have been in use for many years, and are old in the art relating to the protection of electric circuits. However, these early circuit breakers were all designed for the control of relatively heavy currents. They were used in factories, on trolley cars, etc. In order for a circuit breaker to be useful in a dwelling or small commercial ’ building, several requirements must be met. The breaker must be simple to operate; that is, it must be such a device that the householder is required merely to move a handle in order to reset the circuit. It must be certain to interrupt a circuit which carries a dangerous overload. It must operate in such a manner as not to imperil the building. What at first glance may seem a paradox, it must not operate too quickly. When a large bank of electric lights is turned on, or when a motor is being started, there is an instant for which the circuit carries voltage which, if continued, would be a dangerous overload. ' This, however, lasts only for a moment. The circuit breaker must be able to carry this momentary overload without breaking the circuit and, lastly, it must be capable of manufacture at a price to compete commercially with the cheaper fuse plug. The complaint in the suit was filed November 10, 1943. Defendant moved for summary judgment on January 10, 1944, on the ground of alleged misuse of the patents in suit by the plaintiff. This motion was heard, and was denied on May 23, 1944. Defendant’s answer to the complaint was filed on July 1, 1944, denying infringement of the patents in suit arid raising defenses of invalidity of the patents, and of unclean hands on the part of the plaintiff arising out of the alleged misuse of the patents in suit. On March 2, 1945, at a hearing of motions respecting proceedings between the same parties in an action then pending in United States District Court for the Eastern District of New York, which proceedings seemed likely to settle questions raised in the motions presented, this Court, without objection by either party, ordered the proceedings in this suit to be stayed pending final determination of the action then pending in the United States District Court for the Eastern District of New York. On May 17, 1948, on motion of plaintiff that the action between the parties in the United States District Court for the Eastern District of New York had been finally determined, an order was entered dissolving the stay of proceedings previously ordered on May 2, 1945, in the instant suit. On May 24, 1948, defendant filed a new motion for summary judgment of dismissal on the ground of alleged misuse of the patents in suit by plaintiff. This motion was granted, and on April 12, 1949, an order was entered dismissing plaintiff’s complaint after full hearing and arguments and briefs on behalf of the respective parties and in view of recently announced decisions of the U. S. Supreme Court in United States v. Line Materials Co., 333 U.S. 287, 68 S.Ct. 550, 92 L.Ed. 701, and United States v. U. S. Gypsum Co., 333 U.S. 364, 68 S.Ct. 525, 92 L.Ed. 746, which the Court viewed as having changed the law applicable to the grounds of misuse of patents advanced by defendant. This decision is reported in 81 F.Supp. 987. On May 6, 1949, plaintiff filed notice of appeal to the United States Court of Appeals for the Fourth Circuit from the summary judgment of dismissal, entered April 12, 1949. On January 4, 1950, the summary judgment of dismissal was reversed by the United States Court of Appeals for the Fourth Circuit, in a decision reported in 179 F.2d 139, and the case was thereafter remanded on February 20, 1950, to the Court for. full trial upon the issues and determination of whether plaintiff is entitled to the relief prayed. On June 29, 1950, defendant filed a motion under Rule 34, Federal Rules of Civil Procedure, 28 U.S.C.A. for production and inspection of documents in possession of plaintiff respecting the defense of the alleged misuse of the patents in suit, and also propounded interrogatories to the plaintiff respecting other issues in the case. Plaintiff opposed this motion and objected to certain of defendant’s interrogatories. On September 23, 1950, plaintiff filed a demand for trial pursuant to Rule 6(a) of Article 2 of the Rules of Practice for the Northern District of West Virginia, that it desired trial at the term of the Court commencing at Wheeling, West Virginia, on October 17, 1950. On November 10, 1950, a hearing was had on defendant’s motion to produce and inspect documents, and on plaintiff’s objections to defendant’s interrogatories, at which defendant’s motion was denied and plaintiff’s obj ections were sustained, and it was further ordered that the case be set down for trial on merits beginning on December 18, 1950. A severe snow storm intervening and interfering with travel and disposal of other business of the Court prior to the date set for the beginning of the trial, the case was reset for trial on the merits beginning on January 3, 1951, on which date the trial commenced and proceeded continuously thereafter until February 12, 1951, then the taking of evidence was completed — except for stipulated depositions in rebuttal on behalf of plaintiff, and an analysis of admitted evidence respecting prices bearing on defendant’s defense respecting alleged misuse of patents, both of which were later filed — and time assigned for preparation of briefs by the respective parties. All of the patents in suit, excepting Patent Re. 19,887 to Jennings, are directed to automatic electric circuit breaker constructions in which a switch capable of manual operation to open and close an electric circuit is provided with means for automatically opening the switch in the event the circuit is subjected to excess electric current of a predetermined value. These circuit breakers are designed to replace conventional switches and fuses for protecting electric circuits against excess or overload currents in homes and other buildings. The Jennings Patent Re. 19,887 is directed to the use of such automatic circuit breakers in a panel arrangement, where switches and fuses have been previously and are presently being used. The use of automatic circuit breakers such as those involved in this suit eliminates the necessity of replacing destructible fuses which are burned out and destroyed to interrupt the circuit when each overload occurs. The automatic circuit breakers may be manually manipulated to reclose and reestablish the electric circuits after the breakers have been automatically tripped by excess current or overload to open the circuit, and without any necessity of replacing destroyed fuses. Such circuit breakers in general utilize a switch that can be manually operated when desired to open and close the circuit, and a current-responsive element such as a bimetallic member or an electro-magnetic device arranged to move, upon being subjected to electric current in excess of a predetermined value, to release the switch automatically so that it will move to open position under force of springs arranged for that purpose. In general, such circuit breakers and the parts that go to make them up — such as terminals, contacts, fixed and movable, movable contact — or switch-arms, handles and springs, and various additional mechanical elements for moving the contact or switch-arm to open and closed position, and bimetallic and electro-magnetic devices for providing automatic opening of the movable contact or switch-arms — were old and known prior to the patents in suit. Two circuit breakers made and sold by Defendant, known as the Circuit Master and the Pushmatic, and a panel board equipped with Circuit Masters and made and sold by defendant, are charged to infringe the patents in suit. Defendant’s panel board (Plaintiff’s Exhibit 29) is charged to infringe claims 1, 4, 5, 6, 7 and 9 of the Jennings Patent Re. 19,887. Circuit Master (Plaintiff’s Exhibits 26 and 26a) is charged to infringe: Sandin Patent 2,060,472, claims 8, 9 and 13; Hodgkins Patent 2,073,103, claims 31, 32, 33, 41 and 44; Jennings Patent 2,190,517, claims 15, 19, 20, 21, 23, 27, 31, 32, 33, 34 and 35; Jennings Patent 2,229,412, claims 9, 10, 11,12, 24, and 27 to 40 inclusive; Swingle Patent 2,329,362, claims 27, 53, 54,69, 70, and 76 to 80 inclusive. Pushmatic (Plaintiff’s Exhibits 32 and 32a) is charged to infringe: Hodgkins Patent 2,073,103, claims 39, 40, 41, 42 and 43; Jennings Patent 2,190,517, claims 20, 22, 23, 25, 28, 29, 30, 32, 33 and 34; Petersen Patent Re. 21,429, claims 19, 20, 21, 22, 23 and 25. No commercial use has been made of the circuit breakers of the constructions shown in the drawings and described in the specification of the Hodgkins Patent, 2,073,103, Jennings Patents 2,190,517 and 2,229,412, Swingle Patent 2,329,362, or Petersen Patent Re. 21,429. No circuit breakers have been made commercially according to the claims in suit, 8, 9 and 13, of the Sandin Patent 2,060,472. The panelboard of the Jennings Patent Re. 19,887 has 'had substantial commercial use. The circuit breakers plaintiff claims to have been made commercially under any of the patents in suit are: AB Breaker (Plaintiff’s Exhibit 28) which is said to be covered by some claims of the Sandin Patent 2,060,472 which are not asserted in this suit; The Multi-Breaker (Plaintiff’s Exhibit 35) is said to be covered by the Hodgkins Patent 2,073,103 and the Swingle Patent 2,~ 329,362; The Quicklag Breaker (Plaintiff’s Exhibit 38) is said to be covered by the Jennings Patent 2,190,517. However, the AB, Multi-Breaker, and Quicklag breakers bear little or no resemblance to the circuit breakers shown in the drawings and described in the specifications of the patents which are said to cover them. It is admitted by plaintiff that each of these breakers, the AB, the Multi-Breaker, and the Quicklag, are covered by other patents not asserted in this suit to be infringed by defendant. Defendant’s circuit breakers, the Circuit Master and the Pushmatic, are substantially different in construction and arrangement of parts from the circuit breakers shown in the drawings and described in the specifications of any of the patents charged to be infringed. Defendant’s expert witness, Professor Paul L. Hoover, Head of the Electrical Department of Case Institute of Technology, testified and gave it as his opinion that none of the drawings and specifications of the patents charged to be infringed by the Circuit Master and the Pushmatic would be of aid or help in the design or construction of either the Circuit Master or the Pushmatic. The differences which he has pointed out in his testimony and upon which defendant relies to distinguish the Circuit Master and the Pushmatic from the constructions disclosed in the drawings and described in the specifications of the patents in suit are admitted in all material respects by plaintiff’s expert witness, Mr. Stratton. It is evident, also, that the Circuit Master and the Pushmatic are substantially different in construction and arrangement of parts from the plaintiff’s commercial breakers, the AB Breaker, the Multi-Breaker, and the Quicklag Breaker. And it is evident that defendant’s Circuit Master and Pushmatic do not copy or imitate either the breaker constructions shown in the drawings and described in the specifications of the patents in suit, or plaintiff’s commercial breakers, the AB, the Multi-Breaker, or the Quicklag. Plaintiff has granted licenses under its patents for the manufacture of AB Breakers and Multi-Breakers, and also 'for the manufacture of Quicklag Breakers. Such of those licenses as are in evidence here contain a large number of circuit breaker patents other than the patents asserted in this suit to be infringed. At one time defendant had a license under some Westinghouse. patents which it cancelled in 1940, but which does not appear from the evidence to have included the patents in suit. It has appeared, also, during the course of this litigation that plaintiff offered a license to defendant under the patents in suit, but demanded price maintenance by defendant as a condition of any such license, and that later at a hearing before this Court on July 1, 1948, on defendant’s motion for summary judgment based on defendant’s contention that plaintiff was involved in an illegal price-fixing arrangement with others involving the patents in suit, plaintiff indicated willingness to grant license to defendant under the patents in suit without requiring price maintenance. Defendant has declined to take any such license and has elected to submit to adjudication by the Court its defenses against the charges of infringement asserted by the plaintiff. Jennings Patent Re. No. 19,887 Jennings Patent Re. 19,887 has been adjudicated invalid for want of invention as to claims 4 and 7 thereof in a prior suit entitled Westinghouse Electric & Mfg. Co. v. Powerlite Switchboard Co., in the United States District Court for the Northern District of Ohio, case decided March 18, 1943, reported at 57 U.S.P.Q. 169 and affirmed by the United States Court of Appeals for the Sixth Circuit in the decision dated June 1, 1944, reported at 142 F.2d 965. Claims 1, 5, 6 and 9 have not been adjudicated. No disclaimers of adjudicated claims 4 and 7 have been filed in the United States Patent Office. The Jennings panel board structure described in the patent is aimed at two principal features, to prevent unauthorized tampering with the circuit breaker mechanism, and to1 provide a ventilating arrangement for providing air circulation around the breakers in the panel board and for handling arc gas emitted by the breakers when automatically opened by overload conditions in the circuit. The Jennings patent provides a panel box in which the breakers are arranged in two parallel rows on opposite sides of the bus bars which are disposed in parallel position lengthwise of the box in its lower central portion. The bus bars provide the incoming or input leads of the electric circuit and all of the breakers are connected thereto. Spaces are provided extending longitudinally of the box along the outer sides of the rows of breakers in which the branch wiring connected to the breakers is disposed. The parallel rows of breakers stop short of the bottom and of the top of the box so that the central space between them is open at the top and bottom to the spaces in the top and the bottom -of the box and to- the spaces along the outsides of the rows of the breakers. The open side of the box is provided with a cover panel secured in place by means of screws and which has a central opening in which a door is hinged. This screw-secured panel cover is also provided along the side edges of the central opening with inwardly projecting flanges which engage the tops of the breakers and covers the heads of the wax-capped screws by which the top parts or enclosures of the breaker casings are secured to the breaker bases. The central space between the parallel rows of breakers is also covered by a panel engaging the tops of the breakers and secured to a central partition or barrier which divides the central space between the breakers into two channels' or conduits. Thus, the only portions of the breakers accessible upon opening the hinged door mounted in the central opening of the screw-secured cover panel are the handles of the breakers. The Jennings breakers shown in the patent are designed so that the breaker casings can be opened while in place in the panel board when the flanged cover is removed. The bases of the breakers project inwardly into the central space between the rows beyond the breaker tops, and overlap or interlock above the bus bars and provide the bottom wall for the conduit between the breakers. The partition dividing the central space between the breaker tops into two flues or conduits is secured to the overlapping and interlocking portions of the breaker bases. The breaker tops are provided with wide openings at their inner ends for the purpose of passing arc gases, which may be generated when the breaker contacts separate under overload conditions, into the central flue or conduit between the breaker tops and the central barrier or partition. The panel board art prior to the Jennings Patent Re. 19,887 is represented by United States Letters Patent to Wesley No-. 926,-372, dated June 29, 1909; United States Letters Patent to Starrett No. 1,629,645, dated May 24, 1927, original application filed November 10, 1919; and United States Letters Patent to O’Neill No. 1,313,555, dated August 19, 1919. These prior patents disclose panel boards in which switches and fuses are used to control the branch circuits, and disclose arrangements in common use prior to the Jennings patent. Switches and fuses are still used. According to the evidence, plaintiff continues to make a fusible line of panel boards, and fuse protected switches. The prior patent to Von Hoorn No. 1,-786,796, dated December 30, 1930, application filed August 11, 1927, for “Circuit Breaker,” clearly suggests the substitution of automatic overload circuit breakers in panel boards in place of switches and fuses. This patent does not disclose circuit breakers mounted in panel boards, but clearly states (specification, page 1, lines 11-26) : “An object of my invention is to provide a circuit breaker that will take the place of the usual entrance switch and fuse or main panel switch and the branch line fuses. In the case of a distributing. panel, a main circuit breaker will be provided in a housing and the branch circuits are controlled by circuit breakers of smaller capacity than the main circuit breaker thereby eliminating the fuses from the circuit, the circuit breaker, in each case, being of such character that it will interrupt the circuit under overload and short circuit conditions and which enables restoration of the circuit by a simple movement of the operating handle.” There are also two instances of prior use of panel boards in which automatic overload circuit breakers are disposed. These are evidenced by stipulated depositions and constitute an installation in the Pittsfield Building in Chicago, Illinois, in October of 1927, which remained -in continuous use from that date until November of 1940, when the stipulated depositions were taken; and also a panel board installed in the Glas-sow residence at Minneapolis, Minnesota, in September of 1927, which remained continuously in use until 1940, when the testimony contained in the stipulated depositions was taken. The panel board constructions disclosed in the Wesley, Starrett and O’Neill prior patents are substantially the same with respect to the arrangement of the circuit controlling devices, i. e., switches and fuses, as that of the Jennings Patent Re. 19,887 with respect to the arrangement of circuit breakers. Briefly, the Wesley, Starrett and O’Neill structures are characterized by the provision of two spaced, vertically-extending rows of switches and fuses having a channel or space therebetween which is open at its upper end and at its lower end and in which the bus bars constituting the input leads of the circuit are positioned, and having vertical spaces at either side of the rows of switches in which fuses, and the branch wiring leading from the switches, are positioned, and horizontal spaces across the top and bottom of the box at the ends of the rows of switches and fuses. They provide a central space between the rows of switches and fuses through which air or gas can pass from the bottom to the top of the box and circulate freely across the top' and down through the vertical spaces arranged at the sides of the rows of switches and fuses. These prior panel boards are also provided with cover panels removably secured over the open side of the boxes which cover the fuses and branch wiring, and which are provided with central openings in which are hinged doors to give ready access only to the switch handles or buttons. The prior Starrett patent is provided with inwardly projecting flanges 39 and 40 (Figure 24), the inward ends of which engage the cover plates 38 that cover the tops of the switches and the central space between the rows of switches. These cover plates 38 are provided with holes through which the operating buttons of the switch project and together with the flanges 39 and 40 prevent access to everything except these operating buttons. The Starrett patent states (specification, page 12, column 1, lines 27-32): “Likewise, the flanges 39 and 40 cooperate with the assembled switch cover plates 38 and the barriers 26 and 37 to positively enclose the opening provided by the inner door 19, so that access is permitted only to the switch operating buttons.” The barriers 26 and 37 refer to partition members at the ends of the rows of switches which are spaced from the switches at each of the ends of the rows (Figure 3). The prior O’Neill patent, which was considered by the Patent Office in granting the Jennings Patent Re. 19,887, discloses a similar arrangement with the exception that the inwardly projecting flanges 22 provided on the cover panel do not engage the tops of the switches 14, but project inwardly alongside their outer edges, as shown in Figure 2 of that patent, and prevent access to the fuses 15, which lie in rows alongside the rows of switches 14. The prior Wesley patent, instead of using inwardly projecting flanges attached to the cover panel for shielding the compartments alongside the rows of switches in which the fuses are mounted, utilizes a pan member 10 having outwardly projecting flanges which engage the underside of the cover panel 3 of the box and the bottom of which lies over the tops of the switches and covers the central space between the rows of switches in which the bus bars are arranged. This pan is provided with openings through which the operating buttons 13 of the switches extend, and it prevents access, upon the opening of the inner door 12, to everything except the operating buttons of the switches. The Pittsfield Building installation comprises three circuit breaker panel boards, two of which are called “duplex” panel boards. Each of these duplex panel boards comprises an enclosing metal cabinet having two hinged doors. Arranged in the cabinet behind the doors are two large circuit breakers having a central space between them and spaces at their outer sides between the breakers and the cabinet walls. The doors are provided with openings therein so that, when closed, only the handles of the circuit breakers are accessible, and the means which secure the covers of the circuit breakers in place are not accessible. The central and side channels available for circulation of air between and around the breakers, both top, bottom and sides, are present. The Glassow installation comprises a steel box in which are mounted two parallel rows of circuit breakers having a central space between the rows in which the bus bars are arranged and having spaces at both the top and the bottom of the rows, and also alongside the rows, in which the branch wiring is contained. When installed, the covers of the individual circuit breakers were removed and a steel panel provided which covered the entire open side of the box and which had openings to accommodate and make accessible the operating buttons of the circuit breakers. This cover panel completely concealed the circuit breakers and wiring within the box and made accessible only the operating buttons, so that no access could be had to the mechanism of the circuit breakers or the spaces surrounding them except by removal of this panel, which was secured in place upon the box by screws. The Wesley, Starrett, Von Hoorn, Mayer and Maple prior patents and the evidence respecting the Pittsfield Building and the Glassow residence installations were before the courts in the case of Westinghouse Electric & Mfg. Co. v. Powerlite Switchboard Co., supra, in which Claims 4 and 7 of the Jennings Patent Re. 19,887 were held to be invalid. Defendant’s panel board, Plaintiff’s Exhibit 29, closely resembles the structure and arrangement disclosed in the prior Wesley Patent No. 926,372 in the form and arrangement of the means for preventing access on the opening of the central door of the box to everything except the circuit breaker handles. In it, the circuit masters are arranged in two parallel rows; a row on each side of the central space in which the bus bars are mounted. Spaces are provided in the box, both above and below the rows of breakers, and along the outer sides thereof, in which the branch wiring is contained. The rows of breakers are mounted in spaced relation to the bottom of the panel box, so that there is space underneath the rows connecting the outer spaces alongside the rows with the central space between the rows. The central space between the rows is open at the bottom, and at the top except for a perforated fiber place installed at the top of the central space for the purpose of guarding against interference by tools with live parts of the circuit when repairs or installations are being made while the panel box is in service. The box is closed by an outer panel which is secured by screws over the open face of the box and which has a central opening in which a hinged door is mounted. Arranged across the tops of and covering the breakers is a pan, similar to the pan 10 of Wesley, which is provided with outwardly projecting flanges around its edges which engage the underside of the cover panel and prevent access, upon opening of the central door, to the spaces in the box alongside the rows of' breakers in which the branch wiring is contained. The bottom of the pan is provided with openings through which only the breaker handles extend, and which covers not only the breakers, except for the handles, but also the central space between the rows of breakers in which the bus bars are contained. Consequently, defendant’s panel box, like that of Wesley, exposes only the breaker handles when the central hinged door in the cover is open and prevents access to the breakers and to the bus bars and branch wiring, which may be had only if the outer panel is removed by releasing the screws which secure it in place. Thus, it is apparent that defendant’s panel box is substantially like that of the prior Wesley patent except for the fact that circuit breakers, instead of switches and fuses, are mounted in it. There is evidence that, prior to the Jennings Patent Re. 19,887, defendant used a panel box of similar construction except that the outer panel was provided with inwardly projecting flanges which projected inwardly substantially to the top of the plate or pan which covered the switches, and the central space between the switches containing the bus bars, except for the projecting switch handles. Not only are the circuit breakers installed in defendant’s panel box of a different construction from those shown by the Jennings Patent Re. 19,887 in the panel box there described, but the central space between the rows of circuit breakers is differently handled and arranged, in the respect that Jennings provides central conduits or flues between these rows of breakers which are separated from the central compartment in which the bus bars are contained and which are also provided with an additional central partition or barrier which divides the central space between the rows into' two separate conduits, one for each row of breakers. The inwardly projecting bases of the Jennings breakers overlap and interlock to cover the bus bars and to provide the bottom wall of a central space between the breakers above the bus bars into' which open the large vent openings in the enclosures or upper parts of the Jennings breaker casings. Arc gases emitted by the Jennings breakers thus pass into these central spaces, and air circulating in the box will pass upwardly through these central spaces or conduits which are open only at the bottom and at the top. No space or opening is provided so that arc gases or air between the rows of breakers may pass underneath the rows to the spaces outside the rows, as in defendant’s construction, or as in the prior switch and fuse panel boards in which spaces were provided between the switches in the rows communicating the central space between the rows with the spaces along the outside of the rows. In view of the prior art, there can be no patentable invention broadly in substituting circuit breakers for switches and fuses in the panel boxes shown in the prior art. The idea of doing this was suggested by the Von Hoorn patent (a Westinghouse patent), the application for which has a filing date of August 11, 1927, prior to any date claimed for the Jennings Patent Re. 19,887, the filing date of which is April 20, 1929. In any case it would be well within the realm of ordinary mechanical skill in that art. Claims 4 and 7 of the Jennings patent are the so-called “anti-tampering” claims which were held invalid for want of invention in the prior decisions, supra, in Westinghouse v. Powerlite Gx These Claims 4 and 7, considered in the light of the specification and drawings of the Jennings patent, have reference to the combination of the circuit breaker structure and particularly the circuit breaker case structure employed by Jennings with the panel box. The Jennings panel board employs breakers like the physical specimen, Plaintiff’s Exhibit 28, having bases 27 secured to- the box 6 to which all electrical connections are made. These bases carry the breaker parts. The covers or tops 56 or enclosures, as they are called in the claims, fit down on the bases 27 and are attached to the bases by screws 59 which are covered by a sealing compound 64 and which are presented and accessible at the tops of the breakers. To conceal the seals 64, Jennings provided a panel cover 9 with downwardly depending flanges 71 which engage in grooves 72 in the breaker covers 56, or enclosures. By removing the panel 9 and its flanges 71 and the plate 67 covering the central space between the rows and chipping out the wax 64, the screws 59 which secure the breaker tops to the breaker bases may be removed and the covers 56 or enclosures lifted off without in any way disturbing the breaker mechanism or the breaker bases 27 or the electrical connections made therewith. Thus, the Jennings construction is designed SO' that the breakers can be opened while in place in the panel board; and the wax seal 64, if disturbed, serves as a signal to show whether the breaker mechanisms have been tampered with. Defendant’s circuit master breakers are of a different construction than those of Jennings in that they are of the side opening type, i. e., the covers are flat cover plates applied to the sides of the breaker cases and secured in place by a series of five rivets. The circuit masters are mounted side-by-side in rows with the rivets in one breaker concealed by the back of the adjacent breaker case. Consequently, to gain access to the interior of the circuit masters, it is necessary to electrically disconnect them and to remove them bodily from the panel board, after which the five rivets must be cut away in order to remove the cover of the breaker casing to expose the breaker mechanism. Thus, defendant’s breakers, in any feasible or practical sense, cannot be tampered with while in place in the panel board, as can the breakers of the Jennings patent. Claim 4 specifies a plurality of circuit breaker units within the housing or panel box, “ * * * each comprising a base, a circuit breaker mounted thereon, an enclosure for the circuit breaker, and means for attaching the enclosure to the base constituting a seal accessible from the exterior of the enclosure, * * * a cover for the housing * *, and covering the said seal and preventing access thereto so long as the cover is in position on the housing.” The phrasing aptly describes the Jennings structure, wherein removal of the cover 9 gives immediate access to the sealing wax 64 covering the securing screws 59; but the phrasing does not describe defendant’s panel board, wherein removal of the pan -covering the breakers fails to give access to the rivets which secure the covers of the circuit masters to the breaker casings. At best, removal of the pan in defendant’s panel board makes it possible to completely remove a circuit master from the panel board, so that it may thereafter be disassembled by cutting out the rivets and removing the flat cover from the side of the breaker casing. The pan in the defendant’s panel .board does not cover any seal and prevent access thereto “so long as” the flanged panel box cover is in position on the housing, as -contemplated in the Jennings structure and arrangement where removal of the flanged cover makes the “seal” and the screw securing the breaker top to the breaker base immediately accessible. Furthermore, the seal mentioned in the claim describes the seal in the disclosure of -the Jennings patent which is not present in defendant’s circuit master. That is to say that in Jennings, the seal referred to is the wax 64 covering the head of the screw 59; and, if the wax and screw be considered as the complete means for sealing the Jennings breaker enclosure to the breaker base, it is substantially different from the rivets of the circuit master if they are considered to be means for sealing the breaker cover to the breaker casing, in the respect that the Jennings seal and sealing means is obviously designed to permit access to the breaker mechanism by removing the breaker enclosure or top while the breaker is in position in the box, and by disturbance of the wax to signal to the service people that unauthorized access has been had to the breaker mechanism. In the circuit master, it is obvious that no access to the breaker mechanism while the breaker is in place in the panel box is contemplated, and in any case it could not be had, except possibly to the breaker at the end of the row, -except by completely removing the whole cover panel, the pan covering the breakers, and then disconnecting the breaker from the electrical circuit, removing it from the box, and cutting out the rivets. Thus, Claim 4, -considered in the light of the specification of the Jennings patent, is not infringed. Claim 7 is substantially the same as Claim 4 except that it does not mention the word “seal.” It describes the circuit breakers in the housing or panel box as, “ * * * each comprising a base, a circuit breaker mounted thereon, an enclosure for the circuit breaker and means for attaching the enclosure to the base, * * * and means for covering said attaching means and preventing a-ccess thereto so- long as the cover means is in position.” The “means for covering said attaching means” refers to the flanged cover panel of the Jennings construction, the removal of which gives access to the Jennings breakers and permits removal of the breaker covers from the breaker bases while the breakers remain in place in the bo-x and connected in the circuit. As pointed out in connection with Claim 4, the means for covering the breakers in defendant’s panel box, which is the pan, will not, upon removal, give access to the means which attach the breaker covers to the breaker casings of the circuit masters, which are the five rivets. Thus, while the pan which covers the circuit masters in defendant’s panel box will prevent removal of the circuit masters from the panel box so long as the pan is in place, it does not serve the function contemplated for the cover in the Jennings construction of giving access to the means securing the breaker covers to the breaker casings and permitting their removal while the circuit masters remain in place in the panel box and connected in the circuit. Claim 7, therefore, is not infringed by defendant’s panel board, plaintiff’s Exhibit 29. Moreover, if these claims 4 and 7 are given a construction which will enable them to cover and include defendant’s panel board, as contended for by plaintiff, then they are invalid for want of invention over the prior art, and particularly the prior patent to Wesley, whose pan arrangement for preventing access to the switches and fuses is substantially identical with the pan arrangement of defendant’s panel board for preventing access to the ' circuit breakers, as there was no patentable invention in mounting circuit breakers in the panel box arrangement shown in the Wesley patent as defendant has done. The prior panel installations of automatic circuit breakers in the Pittsfield Building in Chicago and in the Glassow residence in Minneapolis disclose it to have been old prior to Jennings Patent Re. 19,887 to mount circuit breakers in panel boards or boxes in spaced rows and to provide covers that gave normal access only to the operating handles and concealed the mechanisms and connections of the breakers, and which also provided for air circulation in the panel box around the breakers. Prior patent to Von Hoorn No. 1,786,796, dated December 30, 1930, application filed August 11, 1927, discloses an automatic circuit breaker expressly stated to be for use in panels in place of switches and fuses. It •discloses a construction to be sealed or locked to prevent unauthorized access to the • breaker mechanism, as stated in the specification, page 3, col. 2, lines 103-107: “The extension 55 is provided with an opening 57 for receiving a seal or lock hasp for preventing unauthorized access to the mechanism within the cover.” Prior patent to Mayer No. 1,887,274, dated November 8, 1932, application filed August 19, 1925, discloses a circuit breaker suitable for use in panels, and in Fig. 8 it is shown mounted behind a cover panel that permits access only to the operating buttons. In both the Von Hoorn and Mayer patents the circuit breaker mechanism is mounted on a base and enclosed by a cover or enclosure fitting down over the mechanism and secured to the base by fastening means which are accessible at the top of the cover and in position to be covered by the flanges of the flanged panel box covers such as used in the panel box of the prior Starrett Patent No. 1,629,645, or that of the Jennings Patent Re. 19,887 in suit, or by the cover pan arrangement of the prior Wesley Patent No. 926,372. The use of seals for protecting the means for fastening the circuit breaker covers or tops to the bases is clearly taught in the Von Hoorn patent, and it is conceded that sealing screws in place by capping the heads with wax is an old expedient. Prior patent to Maple No. 1,261,256, dated April 2, 1918, discloses two automatic circuit breakers mounted behind a cover panel which prevents access to the breaker mechanism and exposes only the operating buttons. In view of this state of the art prior to Jennings Patent Re. 19,887 in suit, illustrated by the Pittsfield Building and the Glassow residence prior uses, the Von Hoorn, Maple, Mayer, Starrett and Wesley prior patents which were not considered by the Patent Office in granting claims 4 and 7, it is held that claims 4 and 7 of the Jennings patent in suit express nothing more than a panel box of the prior Wesley patent equipped with circdit breakers such as those of the Von Hoord or Mayer prior patents in place of the switches and fuses shown in the Wesley patent, and that such claims are clearly invalid for lack of patentable invention. Claims 1, 5, 6, and 9 of Jennings Patent Re. 19,887 are directed to the arrangements for providing ventilation around the circuit breakers in the' panel box and for conducting away the arc gas discharged from the breakers when the contacts are opened automatically upon occurrence of overload. The plaintiff makes some point of the business of disposing of the arc gas discharged by the breakers when they open automatically on overload. Admittedly, overload opening of the breakers is not a frequent occurrence, the amount of arc gas discharged is not known but is small, and while it may have some momentary effect of reducing the dielectric or insulating strength of the normal air or atmosphere surrounding the breaker contacts and its early dissipation may be desirable, no serious or critical effects of its presence are in evidence. Some flashing may also occur upon separation of the contacts on overload before the arc is extinguished. However, this is of infrequent occurrence, and of only momentary duration, and is usually provided for in construction of the breakers themselves, which are at times provided with arc extinguishing means such as the so-called “de-ion” grids surrounding the area of the breaker contacts, or a substantially closed chamber for containing the flash and having a restricted or screened vent. Venting of breakers or breaker casings is also an old expedient used where desired; and venting them into a common conduit is also old, as disclosed in prior patents to Burnham No. 1,562,739, dated November 24, 1925, and Greene No. 1,741,-839, dated December 31, 1929, application filed February 18, 1927, showing the venting of large circuit breakers to common conduits where a considerable quantity of gas is involved. In the Jennings patent, the circuit breaker casings are provided with large openings, adjacent to the contacts, which open into the central passage or conduit provided above the breaker bases and between the breaker casings and the central partition dividing the space between the breaker rows. In defendant’s circuit masters, the vents on the breaker casings are much smaller and would, as admitted by plaintiff, substantially reduce any flash emitted from the breaker on automatic opening on overload. In -any case, there are no patents or claims asserted to be infringed which cover only circuit breakers having vented cases. In defendant’s panel .board, the circuit masters are arranged with the vents opening into the bus bar space between the rows of breakers, and this space is not divided by any partition, as in the Jennings patent, and it is open not only at the top and bottom of the central space, but also beneath the breakers to the spaces in the box along the outer sides of the breaker rows. Claim 1 calls for a breaker panel with two spaced rows of breaker units with the vent openings communicating with the space between the rows and, “ * * * a closure for the space between the rows constituting a conduit for conducting arc gas discharged from said openings.” Claim 5 calls for, “ * * * a closed common conduit into which arc gases are discharged from the circuit breaker units * * Jennings has a closed conduit, as pointed out previously, which is separate from his-bus bar compartment and constitutes a conduit which is open only at the top and at the bottom. This comes about in the Jennings construction by the overlapping breaker bases which form the bottom of the conduit, the central partition or barrier which forms one side o-f it and the cover plate for the space between the rows which forms a third side, while the ends of the breaker tops or enclosures containing the vent openings form the fourth side. Defendant’s-panel board does not have this closed conduit of the Jennings patent. Defendant vents his breakers into the bus bar space between the tows, and that space is open not only at the top and bottom to communicate with the spaces in the box above and below the rows of breakers, but also underneath the rows of breakers to communicate with the spaces in the box along the outer sides of the rows. There is no teaching in the Jennings specification that this closed conduit shown in the drawings and described in the specification can be dispensed with and the breakers left to vent merely into the bus bar space, which was present in the prior patents, above referred to, showing panel boards equipped with switches and fuses. Plaintiff contends that the claims should be construed broadly so that they will cover the arrangement in defendant’s panel board where the only conduit for the arc gases emitted by the breakers is the central bus bar space which was present in the panel boards of the prior art illustrated by the prior Wesley and O’Neill patents. It is apparent that this conduit between the rows of breakers of defendant’s panel board is the same space that was present in the switch and fuse panel boards of the pri- or patents referred to, and that it is not the conduit which Jennings was at pains to provide in his construction, which was entirely closed not only from communication with the space occupied by the bus bars but also from any communication with the spaces along the outer sides of the rows of breakers, and in which also the central space between the rows of breakers was divided by a partition so that either row of breakers was always protected from the flame or gases emitted by the opposite row of breakers. This latter provision may have been due to the fact, brought out by defendant’s expert witness, that the Jennings breakers are provided with large vent openings and the partition needed to protect each row of breakers from flashes emitted by the opposite row, which condition is not present in defendant’s panel board equipped with circuit masters in which the vent openings are small and the flash substantially contained within the breaker casing. Claim 6 specifically requires, “ * * * means including a continuous barrier disposed opposite the said openings (vent openings) * * * to form a substantially vertically extending flue for conducting the discharged gases from the circuit breaker units.” Claim 9 specifically requires, “ * * * a continuous barrier disposed opposite the said openings (vent openings) * * * to form a substantially vertically extending passage, $ s{< » The continuous barrier referred to in claims 6 and 9 is the barrier or central partition 31 disclosed in the Jennings drawings and described in the specification which separates the rows of breakers from one another. Defendant’s panel board has no such central partition or continuous barrier. Plaintiff contends that the continuous barrier should be taken to mean the opposite row of breakers in defendant’s panel board. Plowever, the constructions contended for by plaintiff do not distinguish patentably from the prior art illustrated by the prior patents to Wesley and O’Neill, when applied to defendant’s panel board. This is so for the reason that the flue or conduit in defendant’s panel board is the central bus bar space between the- rows of breakers which is open not only at its top and its bottom to the upper and lower spaces in the panel box, but also beneath the rows of breakers to the side spaces in the panel box, and is essentially and substantially nothing more than the central bus bar space of the prior Wesley and O’Neill patents, which is open not only to the spaces in the upper and lower portions of the box but also between the switches to the spaces along the outer sides of the switch rows. The ventilating and flue arrangements of defendant’s panel box are nothing more than those of these prior patents. The continuous barrier called for by Claims 6 and 9 of the Jennings patent is not present in defendant’s panel board and, in view of the Jennings specification, which provides a -barrier between the rows of breakers which is separate and distinct from the breaker casings and present for a reason not required in defendant’s panel board, defendant’s rows of breakers may not be considered as the barriers contemplated by these claims. If the Claims 1, 5, 6 and 9 of the Jennings patent are to be given a construction broad enough to include defendant’s panel board, then those claims are invalid for want of patentable invention over the prior Wesley and O’Neill patents as they would be so broad as to cover merely the idea of arranging circuit breakers in the panel boxes taught by these prior patents, in the place of switches and fuses, and this in view of these prior patents and of the prior patent to Von Hoorn, which clearly suggested the substitution of circuit breakers for switches and fuses in panel boxes, would not amount to patentable invention. Defendant’s panel board (Plaintiff’s Exhibit 29) does not respond to or infringe Claims 1, 5, 6 and 9 construed in the light of the specification and drawings of the Jennings Patent Re. 19,887 and in view of the prior art. Sandin Patent No. 2,060,472 The Sandin Patent 2,060,472 discloses a large type of air circuit breaker. Claims 8, 9 and 13 only, out of a total of 34 claims contained in the patent, are claimed to be infringed by Circuit Master. The circuit breaker of the Sandin patent is directed to an improved construction in circuit interrupters. Its features are summarized in the specification, page 2, col. 2, lines 61 through 73: “It will thus be seen that I have provided a circuit breaker that is characterized by a snap action both in its circuit making and circuit breaking operations. I have also devised a circuit breaker that moves to closed position in two distinct operations. The first operation causes the movable contact member to advance part way. Further progress is temporarily retarded by a latch mechanism during the period in which compression springs are placed under stress. The latch mechanism is then released and the compression springs drive the movable contact member the remainder of the distance to closed position with a snap action.” Sandin has provided a pivoted operating handle member 26 and a separately pivoted switch arm 15 which is continuously biased to the open position by a spring 17 and carries the movable contact 42. Sandin interposed — between his pivoted operating handle 26 and his separately pivoted contact carrying switch arm 15 — an elaborate train of mechanism including a handle carried “actuator” 21, a pair of closing springs 23, a biasing spring 30, a latch 32, a pin 19, a hook 18, and toggle levers 12 and 14. Plaintiff admits that this train of mechanism is essential in the Sandin construction shown in the drawings and described in the specification; that it is essential that the actuator element 21 of this train be separate from the switch arm 15 and that it move relative to the handle 26 and relative to the switch arm 15 under all conditions of operation, both manual and automatic; and that it is this actuator 21 which is referred to in claims 8 and 9 as “an actuating member” and in claim 13 as a “floating member for actuating, etc.” Circuit Master wholly eliminates the intermediate train of mechanism between the handle and switch arm employed by and essential to the Sandin construction. Circuit Master carries its switch arm and movable contact directly by the handle, and under all manual operating conditions the handle and switch arm move together as an integral unit. By reason of the elimination of the mechanical elements between the handle and switch arm employed by Sandin, Circuit Master has substantially different operating characteristics than Sandin. Circuit Master lacks the “snap • closing” and “snap opening” action of the Sandin mechanism. Sandin’s “snap closing” and “snap opening” action and movement cannot be slowed down or restrained by restraining the handle, whereas in Circuit Master, all opening and closing movements are under control of the handle in manual operation and can be slowed down or stopped by restraining the handle. Defendant’s expert, Professor Hoover, testified that he could see no way in which knowledge of the Sandin structure would aid one in designing the Circuit Master. Claims 8, 9 and 13 are very broadly worded, and if broadly construed to reach and include Circuit Master, would also include prior art represented by U. S. patent to Hodgkins No. 1,660,874, dated February 28, 1928, application filed July 15, 1920, prior to any date claimed for the Sandin patent; and also the British patent to Holmes for Improvements In Combined Electric Switches and Automatic Circuit Breakers No. 17,888 of 1905. Neither of these prior patents were cited by the Patent Office during the prosecution of the application which resulted in the grant of the Sandin patent on November 10, 1936. Plaintiff has called attention to the fact that an earlier Hodgkins patent No. 1,424,304 was noted by the Patent Office in the consideration of the application for the Sandin patent. However, this earlier .Hodg-kins patent, while mentioning the possibility of adding overload responsive mechanism for automatically tripping the circuit interrupter, does not disclose or describe any such mechanism. It teaches only a manually controlled circuit interrupter having no automatic trip features on overload and was so regarded by the Patent Office. The Hodgkins Patent 1,660,874 is directed to the same general class of large circuit breakers, as is the Sandin patent, and discloses a structure having the same functional characteristics as are found in the Sandin patent, in that Hodgkins’ breaker is of the trip free handle type and it has the true “snap opening” and “snap closing” characteristics possessed by the Sandin ■breaker which may not be controlled by the handle after initiation of the opening ór closing movement. This Hodgkins patent is provided with a switch arm 11 which carries movable contacts 5 and is continuously urged to open position by tension spring 25. These elements correspond to the switch arm 15, the movable contact 42 and continuously acting spring 17 of the Sandin patent. In the Hodgkins patent the handle structure 6-15-16-17 is releas-ably connected to the arm 21 of the switch arm 11, through an intermediate train of mechanism comprising the overcenter spring 42, levers 27 and 33, toggle links 34 and 35, and a latch member 38 which controls the toggle links 34 and 35, as Sandin’s so-called actuating element 21 controls his toggle links 12-14. It is demonstrated in the testimony by defendant’s expert that claims 8, 9 and 13, considered and read without regard to the specification and drawings of the Sandin patent, will include the circuit breaker of the prior Hodgkins Patent No. 1,660,874. Plaintiff contends that the Hodgkins element 38 does not correspond to the Sandin actuating element 21 because it is not carried by Hodgkins’ handle and is not a member through which force is transmitted. However, the Hodg-kins toggle controlling element 38 is dependent upon the handle structure for support, which is true of the actuating element 21 of the Sandin structure, and as the Hodgkins element 38 is the element which keeps the Hodgkins toggle links 34 and 35 in a straightened condition necessary to the closing of the contacts, which is a primary function of the Sandin actuating element 21 with respect to the Sandin toggle links 12-14, it is obvious that force must be transmitted through the Hodgkins element 38. Consequently, the Hodgkins patent responds to the terms of claims 8, 9 and 13 if given the broad construction contended for by plaintiff. The British patent 17,888 of 1905 discloses an overload circuit breaker which has “snap opening” characteristics under both manual and automatic operating conditions, and which, like Sandin, is trip free of the handle under automatic conditions. The structure of the British patent, however, does not cause the breaker to close with a snap action and is, therefore, not applied to claims 8 and 9 of the Sandin patent, which do require closing with a snap action. However, as was demonstrated in the testimony, it does apply to and answer claim 13 of the Sandin patent which does not recite snap closing of the breaker. Plaintiff contends that the British patent does not respond to claim 13 of Sandin on the argument that link 14 of the British structure performs no actuating function in the automatic opening of the circuit as does actuating element 21 of Sandin, and on the argument that link 14 of the British patent is not carried by the handle. However, claim 13 does not require that the “floating member for actuating said contact means” be -carried by the handle, and further, the link 14 of the British patent is carried by the handle as well as by the toggle links 2 and 3. Further, the circuit breaker of the British patent cannot open on overload conditions unless its link 14 (the floating member, etc., mentioned in claim 13) pivots relative to the handle and relative to the toggle links 2 and 3,