HAMMOND BUCKLE 00. V. GOODYEAR RUBBER 00. HAMMOND BUCKLE CO. 11.
687
GOODYEAR RUBBER CO. et ale
(Circuit Court, D. Connecticut. November 5, 1892.)
No. 700. L PATl!INTS POR INVENTIONS-ANTICIPATION-SHOE BUCKLBS.
Claim 1 of letters patent No; 301,884 issued July 15, 1884, to Theodore E. King and Joseph Hammond, Jr., for an overshoe clll8p, consisting in the of a catch plate, a tongue pivoted directly to the tongue plate, and the tongue plate extending rearward of the pivot, and in cohtact with the catch plate, when the parts are engaged, was not anticipated by either .the Hartzhorn patent of 1849, No. U.786, or the Budd patent of 1871, No·.120,323. The said claim is infringed bya buokle made under letters patent No. 4,18,924" issued January 7,1890, to John Nase, which shows a rearward extension of the upper plate, altbough it differs from the King' and Hammond buckle in certain other respects.
2.
SAME-lNPRINGEMENT.
In Equity. Bill by the Hammond Buckle Company against the Goodyear Rubber Company and others for infringement ofletterspatent No. 301,884, issued July 15, 1884, to Theodore E. King and Hammond, Jr., for an overshoe clasp. The alleged infringing buckle was made by defendants under letters patent No. 418,924, issued January 7, 1890, to John Nase.· A motion for preliminary injunction was heretofore denied. 49 Fed. Rep. 274. The case is now heard on the merits. Decree for complainant. George H. Hey, for complainant. C. H. Duell, for defendants. TOWNSEND, District Judge. This is a bill in equity for the alleged infringement of letters patent No. 301,884, dated July 15, 1884, for overshoe fastenings, with prayer for an injunction and an accounting. The first claim of said patent is the only .one involved in this suit, and is as follows: "(1) In combination, the catch plate, the tongue pivoted directly totbe tongue plate, and the tongue plate extending rearward of the pivot, and in contact with the catch plate when the parts are engaged, all substantially as described. " The defenses are anticipation, lack of patentable invention, and noninfringement. The question of validity has been twice argued in this court, and decided in favor of the patent in Buckle 00. v. Hathaway,' 48 Fed. Rep. 305, 834. In the opinions of the court therein said first claim of the patent in suit was fully explained and construed. Upon the question of validity, I shall therefore confine myself to a consideration of the new matter presented by defendants. The defendants have introduced as additional evidence of anticipation a number of patents and exhibits which were not before the court upon the former hearings. Several of the patents are for articles such as corkscrews and button hooks,so pivoted to a handle as to be carried in the pocket. They do not suggest the invention embodied in the first
588
FEDERAL REPORTER,
vol. .52.
claim of the patent in suit, as heretofore construed by this court. But defendaQ.ijl anticipation is shown by other patents alleged to be analogous to that of the complainant. They rely especially upon the Hartzhorn patent, No. 6,736, granted in 1849, and the Budd patent, No. 120,328, granted in 1871. The Hartzhorn patent is for an improvement in buckles used for suspenders, and which, it is stated, may be used for other purposes,. The. mode ofattachmerit of the. tongue directly totp.e tongue plate is pra(ltically the same as that of the Hammond and KiQg patent, No. 191,758, which was passed upon by this court in the caBea,and found not to anticipate the patent in suit. Furthermore, the Hartzhornpatent shows the tongue pivoted above the main plate, which is not bifurcated. The spring plate does not extend beyond' the pivot bearings.' This con.struction is very different from in suit. The "Hartzhorn's Modified Clasp," differ materially from the invention claimed in the patent itself. If Hartzhorn had invented in 1849 such a buckle as is shown in ifhld·,'C]!spiNo.2," therewouJd have been little occasion for the numerous in,'entions and patents in this department during the past 40 years. The Buddi'Jatent is for a check-rein' fastener. It is not designed for any use'an!alogous to that df·thepatent'insuit. Its only engagement is wMn There is ht) occasion for the rearward extensions of patent, arid Ido not find any such extension claimed in Bn\:ld1s patent, or shown in the drawings. But, even if such extensions as are contained in the models shown by defendant correctly represent the patent, it does not seem to me that they furnish any proof of anticipation. The tongue of complainant's patent could not be used in combination with the plates in .the Budd clasp because of the spring in the lower plate. There is no bifurcation ;in the lower plate of the Budd patent, and, if one is made, as in the "Budd Modified Clasp," it so weakens the support of the: tongue pivot in its socket as to render the device impra'cticable'When applied to buckles. Again, neither of the modified exhibits shown operates to so lock the parts together when clused as to prevent tht} ,tilting down()f the take-up plate. I am unable to find the invtmtion of the complainant in any of the other patents introduced by thedefehdrHlt'S. ' The contention of the defendants that the rearward extensions of the tongue plate inAhe patent in suit do not involve patentable invention was disposed of in Buckle 00. v. Hathaway, supra, in favor of the patent. F@r the reasons. already stilted, I do not find anything in the additional evidence introduced which .would lead to a different conclusion. .',tl1he additional evidence as to the state "of the art, especially the pivoted: pocket: tool. patents, confirm the view taken by the court in the Hathaway Case, that the mere elongation of the tongue plate would not have but· that the' mode in which the extension was accomplished in the patent in suit, and the catch plate su pported thereby, was,patentable. ,The defenses of anticipation and lack of patentable invention are not sustained.
HAMMOND BUCKLE' ·CO. '11. GOODYEAR RUBBER CO.
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589
., The defense of non-infringe&ent much more difficult question. The defendants' buckle is made under letters patent No. 418,924, issued to John Nase in 1890. Its construction was fully explained by the court in its opinion denying complainant's motion for a preliminary injunction. 49 Fed. Rep. 274. As stated by Judge SHIPMAN, in that opinion, in defendants' buckle the catch plate is in part supported by the upwardly projecting ends of the lower plate. It will be seen, by a comparison of the two patents, that the construction of defendants' clnsp differs substantially from that of the plaintiff. In the operation of defendants' buckle, the catch plate is in part supported by the upwardly projecting ends of the lower plate. The bifurcated rearward extensions serve to protect the upward extensions against fltrain when the buckle is in use. One of complainant's experts admits that the arms of the lower plate do not so project rearwardly as to form a bearing for the catch plate. I am not prepared to say that the patent of defendants does not possess the element of novelty in the changed angle of the lower extension to support the pintle. It may be an improvement upon the invention embraced in complainant's patent. But such invention cannot be used, as in this case, in connection with the rearward extensions, 80 as toapprQpriate the invention of complainant. The rearward extensions of the upper plate of defendants' buckle do seem to me to infringe upon complainant's patent. It may be true that they serve to" prevent the upturned lips from being bent out of shape or broken when the buckle is in use;" but they also, as in complainant's patent, prevent the cloth of the overshoe from 'getting in the bight of the tongue, in the act of closing the tongue into engagement with the take-up are plate. It also appears that, when the tongue and the catch first engaged, the catch plate rests upon the rearward extensions of the tongue plate in exactly the same way as in the patent in suit; and if the enf(agement be made with each slot successively, and upon feet of different sizes, adapted to the successive slots, it will be found that the catch plate is generally, while in use, supported by the rearward extensions, and only incidentally or momentarily, if at all, upon the upturned lips. I do not think that the fa(:t that the upward extensions may thus incidentally support the catch plate prevents infringement. The rearward extensions of the upper plate, not the upward extensions of the lower plate, form the bearing suriace for the catch plate when the parts are first engaged. It will be seen by an examination of the specification and drawing, Fig. 2 of the patent in suit, .that the term" engaged" applies to the parts at the first moment of engagement as well as when closed. In the opinion of the denying the motion for a preliminary injunction, the court suggested that, although the rearward extensions of the lower plate of the patented buckle might nominally exist in defendants' buckle, it was not clear that they extended rearwardly of the pivot, as contemplated. in the patent. The vie\'\; which I have taken renders it unnecessary to decide the question of infringement upon this ground. I am satisfied that in practical use the bifurcated rearward
DJ)QAL B.1IPOB'l'D,
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ctensioIlJ the. same, as already oonstruedand adJt':idlcatett.inttivor of thecomplillnant's patent. :Let there be a decree for an ihj1fudtidn and an accounting. ' " , " :. i ' ,
SAWYER SPINDLB
Co. 6t al··· W. G. &A. R.
MORRISON
Co.
(o.rcuu Oourt,
September 26,1892.)
In letters patent No. 25S,571,tssuetlFebruai'Y'l4, 1882, to John ,Ill. Atwood, tor an improved support for spindles,insplunlng maohlne., the oharaoteristio feature ,ot tbe lnvention ls"a supporting tube wh10h Is fiexibly mounted with relation to the spindle rail, and contaitis the step and bolster bearingllfor the spindle, so that the latter and "ill tuJ>e togethllr laterally In all direc,tlons during the selfadjustment of the IIplndle, .whUeoarr.YJ.ng an unequally balanced bobbin and its yarn luste d of relying upon the movement of the IIpindle and its bearinjr within and IndependentJy of the Supporting tul>e, as heretofore." Held, that t,hlll invention possessed patentable novelty over the spindle support of Francis J. Rabbeth, covered by letteN' patent No. 227,129, 1II.uedio 1880, and over the unpatented Dan, fonh spindle of 1842. , ' , .. ' , The 2d, Sd, and 5th claims efthe Atwood patent are il1frlug'ed by a devioe sub.tanttally similar in form, the' bottom, of l\upporting tube ill surJ;'ounded bya olofJed oil oup, whicb prevents thefaoility,and promptness with whioh thellexibUityof tbe spindle:can be graduated; fora copyl.t cannot escape infringement by a4ding 'fea'ures which hinder the patented from exhibitio, ,lOme of ita minor, advantages. " ,
.. , SAMIil-INFR1WGEMIIlNT-COLOR.ulLBClIANG:B8.
In'Equity. " Bill by the Sawyer Spindle Company' and others against theW. & A. R. Morrison Comps,t.t:rfor infringement of a patent. Decree for co'mplttinants. " ' Pish, Richard80n & Storrow, for (!oDlplainants. Charla L. Burdett, for defendant. ' SI{IPMAN,.CircuitJudge. This Is 'a bill in equity, which is founded \:ipon thtfalle{:(ed o{'leiters patent to JohnE. Atwood, No. dated ,an for spindles The, appllcatIOn ,was filed February 27, 1880. The invention was. made, iii Jtily, 1818,'and antedates the patents to 214,750; the"Engllshpatelit to Haddan, sealed 'Fehruary' 7,1879, and the two pil:terlts to J. E.Braunsdorf, Nos. '214,'Mtfahd 214,356,-which were all applied for itl,orafter September, 1878. The step ofa spindle is the lower end of its vertical shaft, and Ii-evolves within the step bearing in Which it is 'located. The bOlster of is part, and revolves withiI;l the blillster beari?g, whleb' ,lS a, nng surroundmg the 'bolster ,Formetly the step bearmg #,hsJ)laced in a ho'rfwnfalrail, beating was mounted ihother rail,8upported st,ep rail, each Of these bearings berigid. 'The spindle 'Carnes 'a bobbin iind its yarn load, and 'nEllther of the three is wide ptirfectly true, and therefore neither is ,equally balanced. The iheqqalities 'of the load create a tendency to vi.. . 'j
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