PAIGE v. BROWN et al. (Circuit Court of Appeals, Third Circuit. May 9, 1921.) No. 2607. Patents 235-Machine for lap-grinding optical lenses does not infringe patent for ring-grinding machine. A patent for an improvement in a machine for grinding optical lenses, operating on the ring-grinding principle, is not infringed by a machine operating on the lap-grinding principle, which is a distinct field in the art. Appeal from the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge. Suit for infringement of a patent by Arthur E. Paige against Andrew V. Brown and others. Decree for defendants (260 Fed. 955), and plaintiff appeals. Affirmed. Arthur E. Paige, of Philadelphia, Pa., in pro. per. Harrison F. Lyman, of Boston, Mass., and Joseph C. Fraley, of Philadelphia, Pa., for appellees. Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges. PER CURIAM. This patent case involves the grinding of optical lenses. That art is a highly specialized one in which accurate scientific knowledge and mechanical practice of great precision are involved. The case was heard by the court below, and its scientific aspects discussed in an opinion in great detail, and with a completeness which shows a close study of the general art and the practical problems involved in this case. See 260 Fed. 960. In view of this it would seem that an additional elaborate opinion of this court, if not an assumption of superior knowledge, would be at best but a studied effort to attempt to state in different terms what has been so fully discussed in the opinion below. The case has, however, had a full and thorough discussion of the whole subject before this court, and after that argument it has received our careful consideration, and we have now reached the conclusion that the decree below should be affirmed. We refrain, in view of what we have said above, from preparing an opinion, which, in the nature of things, would rediscuss judicially a subject-matter already sufficiently judicially discussed, and confine ourselves to the brief statement that, in the final analysis, we are satisfied that in the grinding of optical lenses there are two separate and well-defined fields, viz. the lap-grinding method and the ring-grinding one. The patent of Paige operates on the ring-grinding principle. It was not addressed to, and made no disclosures in, the lap-grinding art, and the machine which illustrated his disclosure was a ring-grinding one. Such being the case, and the defendants' machine being one for lap grinding, and used by the defendants for that branch of lens grinding, we are justified in holding, as we do, and as the court below did, that the defendants do not infringe. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (272 F.) In coming to that conclusion, it may be remarked that it in no way minimizes what Mr. Paige gave the art in its sphere by his patent. We only find that sphere was not encroached upon by the defendants' lapgrinding practice. On this basic difference we rest our conclusion that the decree below be affirmed. J. B. MONETTE CO. v. KURTZON et al. (Circuit Court of Appeals, Seventh Circuit. March 12, 1921.) No. 2817. Patents 328-878,147 and 971,300, for counter protecting devices, held void for lack of invention. The Monette patents, No. 878,147 and No. 971,300, for counter protecting devices, held void for lack of invention. Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois. Suit in Equity by the J. B. Monette Company against George B. Kurtzon and Morris Kurtzon, doing business as the Garden City Plating & Manufacturing Company. Decree for defendants, and complainant appeals. Affirmed. Cyrus W. Rice and Wm. R. Rummler, both of Chicago, Ill., for appellant. Benjamin T. Roodhouse, of Chicago, Ill., for appellees. PER CURIAM. On final hearing appellant's suit for alleged infringement of claims 2 and 4 of patent No. 878,147, and claim 1 of patent No. 971,300, both issued to Monette, was dismissed for want of equity. "Counter protecting devices" did not owe their origin to Monette. In numerous prior art structures standards and brackets had been attached to the front edge of shop counters, and wire or glass had been affixed to the standards and brackets in such a way as to shut off the goods on the counter from the customers in front and to leave them accessible to the clerks behind the counter. Nothing remained for Monette or others except detail improvements. While his claims are phrased in rather formidable language, their substance, viewed in the light of the prior art, involved only such expedients in forming standards and brackets to receive plates of glass as were obvious to the ordinary workman. The decree is affirmed. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes POTTER v. CINCINNATI, I. & W. R. CO. et al. (Circuit Court of Appeals. Seventh Circuit. January 18, 1921.) No. 2836. Appeal and error 172 (3)-Issues cannot be first raised in appellate court, A defendant, who by his answer admitted the allegations of the bill, cannot maintain an appeal to assert aflirmative rights not set up or claimed in the trial court. Appeal from the District Court of the United States for the Eastern District of Illinois. Suit in equity against the Cincinnati, Indianapolis & Western Railroad Company, Frank H. T. Potter, and others. From the decree, defendant Potter appeals. Affirmed. Benjamin F. Ninde and Malcolm D. Owen, both of Chicago, Ill., for appellant. George B. Gillespie, of Springfield, Ill., for appellee. Before BAKER, ALSCHULER, and EVANS, Circuit Judges. PER CURIAM. Appellant, among others, was made defendant to a bill for the sale of a railroad, and he admitted the allegations of the bill. For his failure to raise, by cross-bill or otherwise, any issue in the trial court respecting the affirmative rights which he is endeavoring to assert here, the decree is affirmed. In re MIEGEL. (District Court, E. D. Michigan, S. D. May 2, 1921.) 1. Aliens 68—Declaration of intention not voided by subsequent conduct. In the absence of any express statutory provision to that effect, and in the absence of a formal declaration by an alien withdrawing his declaration of intention to become a citizen, a declaration of intention properly made is not violated and does not become void by reason of subsequent acts or conduct on the part of the alien. 2. Aliens 62-Claim of exemption from military service by alien enemy on ground of alienage does not prevent naturalization. Under Selective Service Law, §§ 2, 4 (Comp. St. 1918, §§ 2044b, 2044), and the selective service regulations wholly excluding alien enemies from military service, an alien enemy's claim of exemption on the ground of alienage did not show that he was not attached to the principles of the Constitution and well disposed to the good order and happiness of the country as required by Naturalization Law June 29, 1906, § 4 (Comp. St. § 4352), since the mere claiming of an exemption established by law was not an act of disloyalty, and no different rule applies to alien enemies. 3. Aliens 62-Claim of exemption from military service by declarant alien, not enemy, defeats naturalization, A claim of exemption from military service under the Selective Service Law by an alien, not an enemy, who had declared his intention to become For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes (272 F.) a citizen, and who was not entitled to the exemption claimed, indicates that he was not attached to the principles of the Constitution and not well disposed to the good order and happiness of the country, as required by Naturalization Act June 29, 1906, § 4 (Comp. St. § 4352). Petition by Arthur M. Miegel for admission to citizenship. Petition granted. TUTTLE, District Judge. This is a naturalization proceeding pending upon the petition of Arthur M. Miegel, an alien enemy, to be admitted to citizenship. The government objects to the granting of the petition on the ground that the act of the petitioner in claiming exemption from service in the military forces of the United States during the World War disqualifies him from becoming an American citizen. It is urged by the government in its brief that the claiming of such exemption by said petitioner "Violated the bona fides of his declaration of intention and constituted an abandonment of the same, and that the declaration of intention thereby became void and possessed no jurisdictional qualities sufficient to support the petition for naturalization, and by reason thereof his petition for naturalization must be dismissed." The legal requirements governing the filing of a declaration of intention by an alien seeking citizenship are contained in the following provision of section 4 of the Act of June 29, 1906, chapter 3592, 34 Statutes at Large, 596 (Comp. St. § 4352): "An alien may be admitted to become a citizen of the United States in the following manner and not otherwise: "First. He shall declare on oath before the clerk of any court authorized by this act to naturalize aliens, or his authorized deputy, in the district in which such alien resides, two years at least prior to his admission, and after he has reached the age of eighteen years, that it is bona fide his intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, and particularly, by name, to the prince, potentate, state or sovereignty of which the alien may be at the time a citizen or subject. And such declaration shall set forth the name, age, occupation, personal description, place of birth, last foreign residence and allegiance, the date of arrival, the name of the vessel, if any, in which he came to the United States, and the present place of residence in the United States of said alien: Provided, however, that no alien who, in conformity with the law in force at the date of his declaration, has declared his intention to become a citizen of the United States shall be required to renew such declaration." [1] It is not contended that the declaration of intention filed by petitioner does not fully conform to the statutory requirements applicable, or that any declaration has been made by such petitioner withdrawing his intention to become an American citizen or that it is rendered void by the terms of any statute. My attention has not been called to, and I have not discovered, any statutory provision or controlling decision, or decision by any appellate court, which would warrant a holding to the effect that a declaration of intention, properly made, is "violated" or becomes "void" by reason of subsequent acts or conduct on the part of the alien in question, in the absence of a formal declaration with 272 F.-44 drawing such intention to become a citizen, and in the absence of an express statutory provision to that effect. By making his declaration of intention, petitioner took the first step toward citizenship. There were, to be sure, several other steps to be taken before the coveted goal of citizenship could be reached, and it might be that he could not, because of failure or inability to take such other steps, attain such goal. That, however, is a wholly different consideration and one which cannot change or affect the fact that the first step had actually been taken. The statute having prescribed the requisites of this first step, and the latter having been taken in strict conformity to such statute, this court cannot hold, and thereby in effect declare, that what has, in fact and according to the undisputed public record, been done by petitioner has not been done. In re Cuny (D. C.) 269 Fed. 464. The contention, therefore, to the contrary, must be overruled. [2] It is further urged by the government, in argument and in its brief, that when it appeared at the hearing on the petition of this alien that he had claimed exemption from such military service on the ground that he was an alien enemy, this evidence showed that petitioner "was not ready to aid this country and that he had not become sufficiently attached to our government to warrant the court in holding, as required by subdivision 4 of section 4 of the Naturalization Law, that for a period of five years before the date of filing the petition he had been 'attached to the principles of the Constitution of the United States,' and during the five years prior to the filing of the petition he had been 'well disposed to the good order and happiness of the same.'" The subdivision of the Naturalization Law thus referred to is contained in section 4 of the Act of June 29, 1906, already cited, and is as follows: "Fourth. It shall be made to appear to the satisfaction of the court admitting any alien to citizenship that immediately preceding the date of his ap plication he has resided continuously within the United States five years at least, and within the state or territory where such court is at the time held one year at least, and that during that time he has behaved as a man of good moral character, attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same. In addition to the oath of the applicant, the testimony of at least two witnesses, citizens of the United States, as to the facts of residence, moral character, and attachment to the principles of the Constitution shall be required, and the name, place of residence, and occupation of each witness shall be set forth in the record." A preceding paragraph of the same section of the statute provides that "not less than two years nor more than seven years after he has made such declaration of intention," the alien shall file his petition for citizenship, in which, among other things, he shall swear that "It is his intention to become a citizen of the United States and to renounce absolutely and forever all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, and particularly by name to the prince, potentate,. state or sovereignty of which he at the time of filing of his petition may be a citizen or subject." Such sworn petition has been filed by petitioner; the statutory requirements as to his residence and good moral character have been sat |