LEARNED HAND, District Judge
(after stating the facts as above). [1] We consider the McCadden patent an anticipation of claims 1, 2, 4 and 8. If the orifice, u, of Figure 1 of that patent had opened into the intake pipe, r1, of that figure, it could not be even colorably argued that the devices were not identical as respects the features of these claims. There is no warrant for saying that the fuel supply, s, is an auxiliary to the main tank; only one fuel supply is mentioned, and it is the same tank as is to be located below the carbureter proper (page 1, lines 96 to 100). There is equally no warrant for saying that the device was not intended to apply to gasoline engines. The only reason given for a contrary conclusion is that the patent applies only to “internal combustion” engines, and that “gasoline” is nowhere mentioned, but rather “oil.” This is not sufficient; gasoline engines were a well-known form of internal combustion engine in 1903, the date of the application, and unless there was some expression to the contrary, there would be nd ground to hold that the phrase did not cover gasoline engines along with the rest. The omission of the word “gasoline” may well have been because other sorts were intended. No proof is suggested that the primer will not work with gasoline, or that the “carbureter,” a term appropriate, if not exclusively appropriate, to a gasoline engine, is not suitable in its structure to such engines. The supposed heating cup, which is unmarked, does not seem to us necessarily to be such. It is quite as likely to have been the handle of a drainage plug; we incline so to regard it.
Nor do we appreciate the importance of the position that the primer must be “independent” of the carbureter. If by this is meant that the primer must work independently of the flow of gasoline into the carbureter, it is so in McCadden. If it is meant that the air must come into the mixing chamber independently of the valve, i, it is not so; but we cannot see that this is in any sense a feature of Baldwin’s patent. The adverb “independently,” in claim 8, only refers to the supply of gasoline to1 the primer, which must he independent of the [506]*506flow through the carbureter, as it is. We must remember that it was this auxiliary supply of gasoline which both patents sought to achieve, and not the supply of air, which was always adequate, whether the weather were cold or hot.
There is no reason to impugn the operability of McCadden’s disclosure. The valve, i, might not open, it is true; but we must assume that it would. The patent is entitled to the usual presumption of operability; it has passed the expert examiner, and it stands without challenge in the evidence. We are certainly not qualified to pass upon that question, and we take it as we find it. So, too, of the operation of the priming device. In just what form the injection will reach the orifice, u, we cannot say. It may be as solid liquid, or it may be mixed with air; much would seem to depend upon the size of the pipe, t2. Some' may gather at the bottom of the mixing chamber, or it may all trickle down the sides, or be evaporated in the air. We cannot pass upon this, but we must take the apparatus as capable of doing what the patentee set out to do, because it has passed the official in charge of such matters as so capable, and no competent person has challenged his conclusion. We are not experts in such matters.
Coming, therefore, to the crux of the controversy, we see no reason to suppose that it was patentable invention to inject the priming charge into the intake pipe at the manifold, rather than into the mixing chamber of the carbureter itself. There is no place in either system where one can say that functionally the mixing chamber ends and the intake pipe begins. For example, Dorsey, the plaintiff’s expert (folios 668, 669), concedes that the mixing is not completed in the carbureterproper, and that one purpose of a long intake pipe is to secure a better mixture than if the cylinder were more dirfectly connected. We must remember that the carbureter is no more than an inclosed space into which both gasoline and air are freely drawn, so that the mixture may be established. Since the mixture continues until the two gases arrive in the cylinder, it is only an arbitrary division which sets the limit at the precise confine of the carbureter proper. We do not, of course, mean to say that the place at which the priming charge is admitted is indifferent in the operation of the primer; it may well be that Baldwin’s device is superior, in admitting it where gravity will spread it over the sides of the intake pipe in greater area than is possible in McCadden. All we say is that, viewing the mechanism functionally, it is only a question of which form is the optimum in a scheme whose general purpose and means of realization are the same.
[2] If the idea of priming the engine at the manifold were of itself entirely new, more could be said for the novelty of the invention; but it was not. Bate and Birdsall had so placed the priming cups that they opened exactly at that spot, and whatever advantage came from injection just there Baldwin did not discover. The plaintiff complains of the proof upon this point in that there is no written corroboration at least prior to 1910. This is true, yet in the case of Birdsall, at least, there is no reason to question the adequacy of the oral proof. His recollection is detailed, and he has no possible motive to falsify. Written proof is not an invariable necessity. Lee v. Upson (C. C.) 43 [507]*507Fed. 670, 671; Sipp v. Atwood, 142 Fed. 149, 154, 73 C. C. A. 367; Grupe Co. v. Geiger, 213 Fed. 110, 114, 131 C. C. A. 418. We may accept his testimony that he did pipe his priming charge into the manifold in 1905, and the plaintiff’s invention, therefore, depends upón whether it was enough to adapt McCadden’s pump and piping, so that the injection should be where Birdsall put it.
As in all cases the best test of invention is the history of the art, when that throws any light. Here the plaintiff urges that there had been a series of failures finally capped by Baldwin’s success. It is true that the initial priming of a gasoline engine was a difficulty experienced from the outset not only in the motor car, but in the stationary engine. There are a number of patents designed to meet the difficulty, and if it were true that each was designed, to meet the same problem as Baldwin’s patent, there would be force in the assertion. We do not regard them as such efforts. The difficulty develops when one cranks the engine at the start, and the device of a few drops of raw gasoline was an obvious and early expedient. A hand pump connected with the supply might originally have been an invention—we are not prepared to deny it; but McCadden had that and Riotte did the same. Riotte, it is true, pumped into the carbureter; it was a “tickler,” so called, but it obviated the necessity of opening the tank and dipping out the gasoline to charge the priming cup, which was Baldwin’s chief purpose. Moreover, its location was more convenient he [ore the days of self-starters than a pump on the dashboard. The only advance that we can see, therefore, still remains in the location oí the outlet. As to this, we cannot ignore that, at about the same time as Baldwin, it was completely disclosed by Crone, Case, and Steele, a circumstance rightly considered of significance when the question arises of the necessity of uncommon originality to the problem. Elliott Co. v. Youngstown Car Co., 181 Fed. 345, 349, 104 C. C. A. 175.
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LEARNED HAND, District Judge
(after stating the facts as above). [1] We consider the McCadden patent an anticipation of claims 1, 2, 4 and 8. If the orifice, u, of Figure 1 of that patent had opened into the intake pipe, r1, of that figure, it could not be even colorably argued that the devices were not identical as respects the features of these claims. There is no warrant for saying that the fuel supply, s, is an auxiliary to the main tank; only one fuel supply is mentioned, and it is the same tank as is to be located below the carbureter proper (page 1, lines 96 to 100). There is equally no warrant for saying that the device was not intended to apply to gasoline engines. The only reason given for a contrary conclusion is that the patent applies only to “internal combustion” engines, and that “gasoline” is nowhere mentioned, but rather “oil.” This is not sufficient; gasoline engines were a well-known form of internal combustion engine in 1903, the date of the application, and unless there was some expression to the contrary, there would be nd ground to hold that the phrase did not cover gasoline engines along with the rest. The omission of the word “gasoline” may well have been because other sorts were intended. No proof is suggested that the primer will not work with gasoline, or that the “carbureter,” a term appropriate, if not exclusively appropriate, to a gasoline engine, is not suitable in its structure to such engines. The supposed heating cup, which is unmarked, does not seem to us necessarily to be such. It is quite as likely to have been the handle of a drainage plug; we incline so to regard it.
Nor do we appreciate the importance of the position that the primer must be “independent” of the carbureter. If by this is meant that the primer must work independently of the flow of gasoline into the carbureter, it is so in McCadden. If it is meant that the air must come into the mixing chamber independently of the valve, i, it is not so; but we cannot see that this is in any sense a feature of Baldwin’s patent. The adverb “independently,” in claim 8, only refers to the supply of gasoline to1 the primer, which must he independent of the [506]*506flow through the carbureter, as it is. We must remember that it was this auxiliary supply of gasoline which both patents sought to achieve, and not the supply of air, which was always adequate, whether the weather were cold or hot.
There is no reason to impugn the operability of McCadden’s disclosure. The valve, i, might not open, it is true; but we must assume that it would. The patent is entitled to the usual presumption of operability; it has passed the expert examiner, and it stands without challenge in the evidence. We are certainly not qualified to pass upon that question, and we take it as we find it. So, too, of the operation of the priming device. In just what form the injection will reach the orifice, u, we cannot say. It may be as solid liquid, or it may be mixed with air; much would seem to depend upon the size of the pipe, t2. Some' may gather at the bottom of the mixing chamber, or it may all trickle down the sides, or be evaporated in the air. We cannot pass upon this, but we must take the apparatus as capable of doing what the patentee set out to do, because it has passed the official in charge of such matters as so capable, and no competent person has challenged his conclusion. We are not experts in such matters.
Coming, therefore, to the crux of the controversy, we see no reason to suppose that it was patentable invention to inject the priming charge into the intake pipe at the manifold, rather than into the mixing chamber of the carbureter itself. There is no place in either system where one can say that functionally the mixing chamber ends and the intake pipe begins. For example, Dorsey, the plaintiff’s expert (folios 668, 669), concedes that the mixing is not completed in the carbureterproper, and that one purpose of a long intake pipe is to secure a better mixture than if the cylinder were more dirfectly connected. We must remember that the carbureter is no more than an inclosed space into which both gasoline and air are freely drawn, so that the mixture may be established. Since the mixture continues until the two gases arrive in the cylinder, it is only an arbitrary division which sets the limit at the precise confine of the carbureter proper. We do not, of course, mean to say that the place at which the priming charge is admitted is indifferent in the operation of the primer; it may well be that Baldwin’s device is superior, in admitting it where gravity will spread it over the sides of the intake pipe in greater area than is possible in McCadden. All we say is that, viewing the mechanism functionally, it is only a question of which form is the optimum in a scheme whose general purpose and means of realization are the same.
[2] If the idea of priming the engine at the manifold were of itself entirely new, more could be said for the novelty of the invention; but it was not. Bate and Birdsall had so placed the priming cups that they opened exactly at that spot, and whatever advantage came from injection just there Baldwin did not discover. The plaintiff complains of the proof upon this point in that there is no written corroboration at least prior to 1910. This is true, yet in the case of Birdsall, at least, there is no reason to question the adequacy of the oral proof. His recollection is detailed, and he has no possible motive to falsify. Written proof is not an invariable necessity. Lee v. Upson (C. C.) 43 [507]*507Fed. 670, 671; Sipp v. Atwood, 142 Fed. 149, 154, 73 C. C. A. 367; Grupe Co. v. Geiger, 213 Fed. 110, 114, 131 C. C. A. 418. We may accept his testimony that he did pipe his priming charge into the manifold in 1905, and the plaintiff’s invention, therefore, depends upón whether it was enough to adapt McCadden’s pump and piping, so that the injection should be where Birdsall put it.
As in all cases the best test of invention is the history of the art, when that throws any light. Here the plaintiff urges that there had been a series of failures finally capped by Baldwin’s success. It is true that the initial priming of a gasoline engine was a difficulty experienced from the outset not only in the motor car, but in the stationary engine. There are a number of patents designed to meet the difficulty, and if it were true that each was designed, to meet the same problem as Baldwin’s patent, there would be force in the assertion. We do not regard them as such efforts. The difficulty develops when one cranks the engine at the start, and the device of a few drops of raw gasoline was an obvious and early expedient. A hand pump connected with the supply might originally have been an invention—we are not prepared to deny it; but McCadden had that and Riotte did the same. Riotte, it is true, pumped into the carbureter; it was a “tickler,” so called, but it obviated the necessity of opening the tank and dipping out the gasoline to charge the priming cup, which was Baldwin’s chief purpose. Moreover, its location was more convenient he [ore the days of self-starters than a pump on the dashboard. The only advance that we can see, therefore, still remains in the location oí the outlet. As to this, we cannot ignore that, at about the same time as Baldwin, it was completely disclosed by Crone, Case, and Steele, a circumstance rightly considered of significance when the question arises of the necessity of uncommon originality to the problem. Elliott Co. v. Youngstown Car Co., 181 Fed. 345, 349, 104 C. C. A. 175. Such a showing suggests rather that the art had at about that time made the device presently appropriate in the development of the motor car than that it had theretofore baffled the powers of inventors. We incline to regard the patent as one of those added conveniences which have arisen and are continually arising after the main structural features of the motor became fixed, and that the necessary modifications from what went before did not call for any powers out of the common.
We are strengthened in this conclusion, first, by the fact that the patent has no presumptive validity over McCadden, which was not cited against it, and because its success has not hitherto given any warrant for the belief that it was coveted as an important feature of the equipment of a motor. Although the invention is 10 years old and has been patented for 6, Crone has sold less than 1,000, and has got a royalty of 75 cents and from only a single company, which, making, as it does, an expensive car, presumably does not sell great numbers.
Claim 3 is for a spray nozzle, which will hardly be claimed to constitute an invention over the other claims.
Claim 7 locating the pump upon the dashboard is the same.
Claims 5 and 6, of which 6 has certainly no patentable addition to 5, [508]*508are for the same kind of pump as Riotte disclosed as an auxiliary or “tickler” to the carbureter proper. It was not invention to substitute such a pump for McCadden’s bulb.
'The decree is reversed, and the bill dismissed, with costs.