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holes, or depressions in the nonmusical plate, instead of in each of the musical plates. In this application of Lochmann we find no suggestion of anything new or novel in having the driving mechanism at the periphery instead of near the center of the disc, and an engagement there of the disc with the sprocket wheel. Lochmann seems to assume in his application that it was old in the art to revolve the disc or musical plate by means of power, sprocket wheel, or other wheel with teeth, engaging with the disc at its periphery instead of near the center. That such was the fact is apparent. Indeed, this court will take judicial notice of the fact that it was old more than 30 years ago to turn wheels with cogs on the edges, or on the underside of the edge, and revolving on a pin at the center, by means of engagement with another cog or sprocket wheel turned by the water or steam power, located at or very near the edge of such first-mentioned wheel, answering in this music-box construction to the disc or musical plate. The said application of O. P. Lochmann was granted May 30, 1893, 27 days before the patent in suit was granted, and, so far as the two relate to means for revolving or turning the disc by wheels or other means situated near and engaging with the disc at the periphery thereof, they are substantially identical. The ideas of means are the same. The construction differs but little, not materially. I can find no patentable invention in the hinged bar with friction wheels. The idea of pressing evenly on a given surface to keep it engaged with another surface or with other things below it is old, and a dozen different ways of accomplishing the purpose will readily occur to any skilled mechanic. The rod might lie on the revolving plate, but in so doing we would have too much friction. Place the rod made round in a single roller of the general shape and construction of gas pipe, and the purpose is accomplished. Have one or ten or twenty pieces, as necessary. Make them short or long, as desired. The idea of antifriction wheels has been old ever since carts and cars and wagons and other wheeled vehicles took the place of stoneboats and like construction for long-distance transportation purposes. Each and every element found in complainant's patent is old. Is the combination new, and does it produce new and useful or beneficial results? Do these old elements so coact as to produce a new and a beneficial result, or some old result in a much better or improved way? Have we a mere aggregation, so far as the addition of this hinged arm provided with friction wheels is concerned?

In the prior art we find United States letters patent No. 374,127, issued to O. P. Lochmann November 29, 1887, application filed September 8, 1887, for "musical box," and which "has for its object. to provide novel means for rotating the circular note plate [disc] of a music box," and in which the musical disc is supported at the center by a nipple and threaded bolt (the equivalent of the central pin or pivot of the patent in suit), around which it rotates. It is kept in place by a nut, instead of the end of the pivoted rod with friction wheels, and is supported at the outer edge or periphery. Here, at the outer edge (periphery), is located the power by which the disc is rotated, and here such disc is engaged therewith and ro

tated in three different modes. One of these constructions, says the specifications, is:

"The note plate is conducted in a slot on the nipple, e, but on the upper surface of the nipple. The shaft, f [part of the means for rotating the disc], is in this case provided with a collar, m, lying with an elastic washer, n, upon the note plate [disc], p. In turning the crank [which revolves the shaft, f, which connects with the cogwheel or sprocket wheel that rotates the disc], a pressure is exerted on the shaft, f, which pressure is transmitted by the elastic washer to the note plate, p, so that the latter is conducted between the collar, m, and the nipple, e. Any vibration of the note plate is avoided by this arrangement, which, moreover, has the advantage that the note plate can be more easily put in and changed, as after the removal of the crank the note plate does not find any resistance in its periphery."

There are found in the prior art, and in substantially the same constructions, means to accomplish the same purposes mentioned in the patent in suit. Everything is done in substantially the same way, except to press the note plate evenly by means of the hinged rod with friction wheels. This, in the patent in suit, acts independently of the other elements. It is hinged at one end, and, when in place, fastened or locked to the center pin or pivot at the other. It simply exerts a pressure on the note plate, and serves to insure its contact with the vibrating tongues. It has no other function, and nothing whatever to do with serving or accomplishing the purposes of the patent. Its action is distinct. It does not coact with the other elements of the combination of the patent. I fail to find invention in adding this element to the prior art. We have no new result by so doing-no improved result from the combination.

Attention should be called to the United States letters patent, No. 425,935, April 15, 1890, to Ehrlich-music sheet for mechanical musical instruments. In this we have an arm answering to, and serving the same purpose as, the pivoted arm in the patent in suit, and that patent says:

"The bar, f, is hinged at one end to the chest, p, while at the other end it is secured in such a manner that it may with facility be released and lifted in order to allow the disc, a, to be exchanged."

It seems to me clear that, in view of the prior art, no patentable invention is disclosed in the combination of the patent in suit. I must so find, having in mind the presumption of validity that attends the complainant's patent, and the necessity for strict and convincing and satisfactory proof of the prior art.

It has well been said, in substance (Lourie Implement Co. v. Lenhart, 130 Fed. 122, 64 C. C. A. 456):

"A copy of the thing described in a patent, either without variation, or with such variations as are consistent with its being in substance the same thing, is for all the purposes of the patent law the same device as that described in the patent. Burr v. Duryee, 1 Wall. 531, 573, 17 L. Ed. 650. One who claims and secures a patent for a new machine thereby necessarily claims and secures a patent for every mechanical equivalent for that device, because, within the meaning of the patent law, every mechanical equivalent of a device is the same thing as the device itself. A device which is constructed on the same principle, which has the same mode of operation, and which accomplishes the same result as another by the same means, or by equivalent mechanical means, is the same device, and a claim in a patent of one such device claims and secures the other. Machine Co. v. Murphy, 97 U. S. 120, 125, 24 L. Ed. 935.

The sliding, slotted, adjustable plate of the appellant, with its thickened, flattened lower edge or foot by the side of, and seven-eighths of an inch distant from, the edge of the share of the plow, involves the same principle, has the same mode of operation, and performs the same function-the regulation of the tilting of the plow-by mechanical means equivalent to the adjustable sliding plate of Lenhart, with its thin edge bent against the plowshare, so that it may slide under its edge when it is depressed below it. One may not escape infringement by adding to or substracting from a patented device, by changing its form, or by making it more or less efficient, while he retains its principle and mode of operation and attains its result by the use of the same or of equivalent mechanical means. Walker on Patents, §§ 347, 348; Sewall v. Jones, 91 U. S. 171, 183, 23 L. Ed. 275; Coupe v. Weatherhead (C. C.) 16 Fed. 673, 675."

In the patent in suit I find nothing done that an ordinary mechanic skilled in this art would not have done in the exercise of that skill, having the prior art in mind and before him.

The complainant's patent is invalid, and the defendant is entitled to a decree dismissing the bill, with costs.

PETTIBONE, MULLIKEN & CO. v. VERONA TOOL WORKS.

(Circuit Court, W. D. Pennsylvania. June 12, 1905.)

No. 16.

PATENTS-VALIDITY AND INFRINGEMENT-RAIL BEnder.

The Storm patent, No. 344,793, for a rail bender, used by track hands for bending railroad rails, adds nothing to a device previously in use, except its equipment with rollers to grasp the rail, and by means of which the machine may be moved along to successive positions without releasing the pressure by which it holds the rail, and is entitled to only a narrow construction, restricting it to the particular mechanism shown. Claim 1 is void, as too broad, in view of the prior art. Claim 6 held not infringed.

In Equity.

Dyrenforth, Dyrenforth & Lee, for complainant.
Bakewell & Byrnes, for respondent.

BUFFINGTON, District Judge. This is a bill in equity brought against the Verona Tool Works by Pettibone, Mulliken & Co., assignee of patent No. 344,793, granted June 29, 1886, to one Storm, for a rail bender. Infringement of the first and sixth claims is alleged. The defenses are noninfringement and invalidity of the patent. An examination of the prior art satisfies us that the patentable novelty disclosed by the patent was such that its claims were necessarily restricted to a comparatively narrow compass. The device is one used by track hands for bending railroad rails. Such work was successfully done before this patent by machines of other types, which still continue in use by large and progressive railroad systems. The most common form of bender now and prior to the patent in suit was called the "Jim Crow." This consisted of a heavy, bowed frame, first bent upwards at the outer ends, and then turned downward into hooks. These hooks grasped the outer side of the rail, and afforded resistance points to a screw placed

midway between them, but on the other side of the rail, and reaching back to and sleeved in the bight of the bow. Pressure on the screw was effected by turning a nut shouldered against the bow. As the two hooks and the pressure point of the screw were all on one side of the bender, its construction was such that the machine could be operated by dropping it in place upon a rail lying on the ground. When thus applied, pressure was applied by turning the screw. When the pressure was released, the machine was moved along the rail, and pressure again applied at successive points until the rail was brought to the desired curvature. This was what was known as the "step by step process." The device of the patent in suit consisted, in substance, in equipping the Jim Crow bender with rollers. This was done by seating in the grasping hooks at each end of the bow of a vertical nonactuated roller, adapted to engage the head of the rail, and a third roller at the end of the screw, adapted to engage the other side of the rail head. This latter roller was provided with a squared spindle head, adapted to be revolved by a wrench. When this roller was forced against the rail head by the screw pressure from the nut seated against the bow, and the rail properly bent at that point, the machine could be moved along the rail by turning the spindle-headed roller, and the curving pressure applied at successive points, without releasing the initial pressure. This method imparted mobility to the machine, and permitted such mobility while the machine maintained curving pressure. It will thus be seen the device substituted mechanical or roller-moving mechanism for the step by step mobility theretofore in use. The mechanical result of this change was to permit mobility under bending pressure. In the light of the views expressed by the Circuit Court of Appeals of this Circuit in the case of Carnegie Steel Company v. Brislin, 124 Fed. 215, 59 C. C. A. 651, on the subject of imparting mobility to a machine, we are quite clear that no patentable novelty is involved in Storm's device. In that case the imparting to a stationary machine, adapted to perform one part of a process only, of lateral mobility, which enabled it to work at other lateral points, and thereby complete a process which it had never entirely completed before, was held not to involve patentable novelty. The court there say:

"We will not pause here to consider whether the thought or idea of laterally moving this device for the purpose stated was one worthy of being called a patentable invention, apart from the specific mechanical means devised for such lateral movement. We will only remark, in passing, that the suggestion of the moving of such a table on a carriage or truck laterally, so as to bring the same successively in front of stands of rolls placed side by side, does not seem to us to so involve patentable invention as to be entitled to the monopoly accorded to such invention by the present law."

In the present case the entire process of rail bending in the method of Storm's device had been employed before, and he simply equipped with rollers a machine which did such work. Moreover, the prior art was such that the nature of the advance was necessarily restricted in sphere. The Jim Crow device showed three resistance points of pressure, all located on the lower side of the device, and adapted to exert binding pressure from above. This

made that device applicable to a rail lying on the ground. The Vojacek device showed a movable bender provided with rollers and three resistance points, but so constructed that it could not be placed on a rail, but it necessitated threading. The device of the English patent of Hain, while employed in a stationary machine, showed the use of three pressure points on the upper side of a plane adapted to have a rail placed on it, instead of threaded into it, and equipped with rollers at the three points to move a rail through it. Under these facts, we are justified in confining these claims to the limits of the particular specific device which the patentee contributed to the art, or to the mechanical equivalents of the means he employed. In the light of these facts, we are of opinion the patentee was not entitled to the broad monopoly covered by claim 1, and that the same is void. As to claim 6, we are of opinion the respondent's device does not infringe. It has not the elements of the screw, D, and nut, E, of Storm's device for imparting pressure. In it pressure is not imparted by means of a screw, but through a shaft with an eccentric seated in the bend of the bow. In substance, this method of eccentric pressure is found in Emerson's patent of 1869-a device which has been employed in an extensively used bender of that name. It is true that upon the respondent's pressure shaft there is a sleeve, thread, and nut mechanism; but these are not used for imparting pressure, but to so adjust the length of the shaft as to secure through the eccentric different degrees of curvature. After due consideration, we are clear that infringement of this claim is not shown.

A decree may be drawn dismissing the bill.

BRADLEY v. ECCLES.

(Circuit Court, N. D. New York. June 12, 1905.)

No. 6,961.

1. PATENTS-VALIDITY-PRIOR PUBLIC USE.

Under Rev. St. § 4886 [U. S. Comp. St. 1901, p. 3382], the public use of an invention for more than two years before the application for a patent therefor, although in but a single instance, will defeat the right to a patent.

[Ed. Note. For cases in point, see vol. 38, Cent. Dig. Patents, § 103.] 2. SAME-PUBLIC OR EXPERIMENTAL Use.

If an inventor passes his invention into the hands of different persons to use and test as to the usefulness of the device before application for a patent, such use by them must be restricted to experimental use; and if they are permitted to use the device publicly as a nonpatented article, and it is either sold or given away to even a few persons, their use of it will be a prior public use which may deprive the inventor of his right to a patent.

[Ed. Note.-For cases in point, see vol. 38, Cent. Dig. Patents, §§ 95, 98, 103.]

3. SAME-THILL-COUPLING.

The Hannan reissued patent, No. 11,260 (original No. 456,117), for improvements in thill-couplings, while it discloses patentable invention, is

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