In re Foster

delivered the opinion of the Court:

We find ourselves unable to recognize the substantial difference which the Commissioner finds between claim numbered two and the other claims. It seems to us that, if claim numbered two performs new functions in the art, as the Commissioner states, and is therefore patentable, some at least, if not all, of the other claims are equally patentable, since all of them contemplate the same function, which, as the Commissioner very properly says, is that “the wire screens not only act as flame guards, but they effectually *394break up the áir currents which must necessarily exist when the carriage is in motion,” that “ the flame is prevented from escape when the fluid passes through the screen,” and that “ the ignited fluid in the burner flows through the screen as an unignited fluid.” These are precisely the functions which each and every combination of the several claims is intended to perform; and these functions, it would seem, they each and all do perform. The only substantial difference between the combination in claim numbered two and the combinations of the other claims would seem to be, that in claim numbered two there are two wire screens, one above and the other below the combustion chamber, while in the other claims there is mention only of one such screen below the combustion chamber. The combination in claim numbered two appears to be the more effectual to produce the result; hut the difference of function appears to he one of degree rather than of kind. Having allowed claim numbered two, the Commissioner, we think, should have allowed the other claims also.

The whole of the alleged invention is in the use of a screen of fine wire cloth to cover the inlet openings in such manner as not only to confine the flame within a certain area, hut likewise to deflect the air currents that are apt, when a vehicle is in motion, to carry the flame downward or laterally through the air-inlet openings. The other parts of the several combinations are concededly not new; and the use of a wire screen to confine flame within a predetermined space is admitted not to be new, for such was the construction of the Davy lamp. The alleged invention is the use of the wire screen in this connection in such manner as to deflect the air currents which interfere with the flame while ■the vehicle is in motion. And the whole question in the appellant’s case is, whether this is not merely a new use, not patentable, of an old device, or what is called in the patent law, a double use.

Several patents are referred to as showing anticipation of the'appellant’s claim;'hut we fail to find in them any such anticipation. They all seem to be of different con*395struction and to serve a different purpose. The patent, for example, to Frederick T. Suhr, of April 21, 1867, for a mode for burning crude petroleum, shows a perforated draught pan intended to direct the currents of air upon the flame. But this assuredly is not the equivalent of a wire screen so made and arranged as to break up and deflect the air currents, and to prevent their interference with the flame to extinguish it. A patent of July 27, 1875, to Thomas ~W. Houchin for improvement in a pocket gas-stove for cooking is likewise supposed to show anticipation in the fact that it has a wire gauze at the top and bottom of the burner to prevent the communication of flame from the gas burning at the top to that within the box. But this would seem to be a very different thing from a wire screen so arranged as to break up the currents of air. Nor do any of the other patents mentioned seem to us to be any more appropriate as references of anticipation, than was the old Davy lamp an anticipation of the several inventions for which these several patents were granted.

But it would appear to be unnecessary to enter into the subject at any length. Concurring as we do in the Commissioner’s decision, and in the reason given by him therefor, that the appellant’s claim numbered two is patentable, and finding no substantial difference between this claim and the other five enumerated, we find no i*eason to refuse to these latter the merit of patentability.

As to claims numbered 1, 3, 4, 5, and 6, the decision of the Commissioner is reversed.

The clerk of the court will certify this opinion and the proceedings in the cause in this court to the Commissioner of Patentsi according to law.