9 Opinion of the Court pot, instead of between the lowest row of holes and the second lowest row, and that the baffle plate is flat, instead of being frusto-conic, as in plaintiff's patent. Defendant relies particularly on the Valjean patent to show that plaintiff's patent was anticipated by the prior art. The patent examiner thought the differences pointed out above were an improvement over the Valjean patent, and allowed plaintiff's patent. There is a strong presumption in favor of the validity of any patent issued by the Patent Office. The burden is on the alleged infringer to show that the patent is anticipated by the prior art. It has not convinced us that it is, although the two structures are indeed quite similar. The commissioner of this court, who was present at the tests of burners constructed in accordance with both the plaintiff's patent and the Valjean patent, has found that plaintiff's patented burner in fact was more efficient when burning at low or pilot heat than the Valjean patent burner. We have no reason to doubt the accuracy of this finding. The commissioner in his opinion concludes that the Valjean patent does not anticipate plaintiff's patent. We concur in this opinion, and hold that patent No. 2,182,465 (hereinafter referred to as the '465 patent) is not anticipated by the Valjean patent, nor by any other prior art cited by the defendant. We do not discuss the other prior art except to say that, whereas in some of the prior art cited the baffle plate was placed between the first and second rows of holes in the burner pot, and in others a conic-type baffle was used instead of a flat baffle, none of the prior art used just that combination which plaintiff used, to wit, the placing of the baffle between the first and second rows of holes, and a frusto-conic baffle. Just why this combination worked better than the previous patent is not obvious to us, but the patent examiner thought it did, and our commissioner has found as a fact that it actually did; hence, we find that plaintiff's '465 patent was not anticipated by the prior art, and we hold it to be valid. When the Army called on plaintiff to convert its woodand coal-burning stoves into oil-burning stoves, plaintiff Opinion of the Court 140 C. Cls. started out with its '465 patent, and modified it so it would fit in an Army stove, and modified it so as to prevent it from smoking when operated at either low, intermediate, or high heat, and, further, provided it with attachments which would secure it in the Army stove. On the resulting combination, plaintiff secured patent No. 2,393,232, which will be hereinafter referred to as the '232 patent. The burner used in this patent was identical with the '465 burner, except that plaintiff added to the '465 burner a tubular member running from the bottom upward through the middle of the pot and extending above the top of it. At the top of this tubular member there was placed a cap, raised slightly above the top of the tubular member, the cap having sides extending downwardly on each side of the tubular member. The purpose of the tubular member was to bring in a third source of air, and the purpose of the cap at the top was to direct this air downwardly, spreading the flame, and assuring sufficient combustion to eliminate the emission of smoke. Attachments for fitting this pot within the regulation Army tent stove were provided, with directitons for the placing of these attachments at specific parts of the stove. A diagram of this stove and burner appears below. Opinion of the Court 140 C. Cls. This is the burner and attachments which the Army ordered from plaintiff in 1943. It is the burner and attachments on the use of which defendant demanded the license from plaintiff as a condition of placing with it an order for some 75,000 units. It is the burner which the Army has purchased and had available for use since the expiration of the license granted. A diagram of the stove actually used by the Army follows: 9 Opinion of the Court Defendant says the '232 patent is anticipated by the prior art. The art on which defendant mainly relies was considered by the patent examiner, and was found by him not to anticipate plaintiff's '232 patent. The commissioner of this court has also found that the prior art cited does not anticipate plaintiff's patent. It will be remembered that this device was specifically designed to fit in a particular stove and was designed to be used in the field under battle conditions. None of the prior art cited by defendant could have been used in an Army tent stove in the field under battle conditions. None of them had been adapted for use in the regulation Army stove, and most of them were supplied by forced air fed into the burner by a motor-driven blower. No burner that depended upon forced air driven into the burner by a motor could have been used in the Army tent stove in the field under battle conditions. They do have a number of points of similarity, but they could not have been used by the Army without considerable modification. The "proof of the pudding" is that the Army asked plaintiff to develop a burner for use in this particular stove under certain conditions, and plaintiff did so, to the satisfaction of the Army, and the Army used this particular burner. We do not think the Army is in any position to say that the prior art anticipated this patent. Nor do we see how this can be said when plaintiff's patents and the prior art are laid side by side and consideration is given to the use which defendant intended to make of it. In the foregoing discussion we have couched our opinion in everyday language, which we hope the average man can understand. For a more technical discussion of the subject we refer to the commissioner's opinion. The matter of reasonable compensation is, as usual, a difficult matter. As the commissioner says in his opinion, the royalties received under voluntary licensing agreements are often the best guide. But, since the '232 patent, which defendant infringed, was a heater adapted for use under unusual conditions in a particular stove not in commercial use, no license agreements had been entered into for the use of this par 485000-59- -15 |