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Upon consideration we are clear that patent N0. 723,139 is void as simply being for the function of a machine devised to manufacture an old product.

Two alternative forms of machine illustrate the invention of machine patent No. 735,949; one the band wheel type referred to above, and the other a vertical reciprocating head mounted in guides and provided with a diagonal row of spaced pins on its face. These pins strike the glass as in the case of the preceding structure. The first claim is:

“In a machine for shaping the edges of glass articles, the combination of a carrier having a series of two or more pins secured to the carrier and spaced in the direction and transversely of the path of movement of the carrier so as to operate successively and at different points on the article, means for moving

the carrier and a rest or bearing arranged to support the article adjacent to the edge to be operated on, substantially as set forth.”

The respondent’s alleged infringing structure No. 1 is a reorganized shear. A number of projecting pins are spaced and staggered on a pivoted arm in the direction and transversely of the arms’ path of movement. The result of this arrangement is that the pins operate successively on the edge of the plate of glass which rests on a support and is inclined at an angle to receive the impact of the pin. The oscillating pin-carrying arm is a carrier, and differs from the reciprocating carrier of complainant’s second structure only in the fact that it turns on a pivot, instead of sliding in guides. So far as functional and mechanical means go, it is an obvious mechanical alternative for complainant’s reciprocating head. We are therefore of the opinion it infringes.

It is contended, however, that the patent is void because not taken out within two years after the machine was put in public use. The question is not without difficulty, but upon consideration we are of opinion the use of the machine down to February, 1901, was experimental. Chipping glass by hand was a comparatively new art, and we find the device of the patentee was the first successful application of machinery to that art. A number of serious obstacles were encountered in the operation of the machine, and, while it was in a measure successful, and its product was sold, yet the testimony also shows that during this entire period the patentee encountered difficulties and was persistently laboring to perfect the machine. These troubles could only be discovered by the use of the machine, and attempts to remedy them when discovered necessitated still further use. During this whole period the machine was kept under lock and key in a factory to which the public had no access, and efforts were made to prevent the other factory workmen, not engaged in its operation, from seeing it. True, during this time the product of the machine was sold, but the sale was the incident, and experiment and improvement the main object of such use. It will also be noted that in two particulars at least the patent was based on matters developed by these experiments, viz., adjustment of the rest block laterally to enable the chipping of different thickn'esses of glass and its adjustment horizontally so as to allow the pins to strike the edge of the glass below the axis of revolution and as the pin was moving away from the bar.

In view of the period up to February, 1901, being wholly experimental, we are of opinion application for the patent was made in due time. '

CONROY v. PENN ELECTRICAL & MFG. CO.
(Circuit Court, W. D. Pennsylvania. February 5, 1907.)
No. 37. '

PATENTs—INFRINCEMENT—MACHINE FOR SHAPING EDGES or GLASS.

The Conroy patent, NO. 731,667, for a machine for ornamenting glass, by chipping the edges of plate glass, which is a modification of the machine of patent No. 735,949, to the same inventor, designed to be used in chipping circular or oval plates, makes a table, carrying the plate and having a step by step machine movement to present successive portions of the plate to the action of the single cutting pin and essential element of each claim, and is not infringed by a machine having no such movable table, nor its mechanical equivalent.

I In Equity. On final hearing.

Christy & Christy, for complainant.
J. M. Nesbit, for respondent.

BUFFINGTON, Circuit Judge. This bill charges infringement of both claims of patent No. 731,667, applied for April 2, 1903, and granted June 23, 1903, to John M. Conroy for a machine for ornamenting glass. Scalloping the edges of plate glass by a machine in which a projecting series of pins struck successive blows on the edge of an inclined plate supported on a rest was shown in the patent to Conroy, NO. 735,949, applied for December 31, 1902. That machine had a series of pins projecting on the carriers. The patent now before us involves the same general principle, save that it uses a single pin upon a reciprocating head. This enables it to chip circular or oval plates. This is shown by the patentee, who says:

“Will you describe the operation of chipping circular or oval plates on the machine shown in Figs. 1 and 2 in patent 735,949? A. All that is necessary, in order to chip either an oval or a circular plate, with the machine marked Fig. 1, is to drive some of the pins in, preferably near the edge of the drum, leaving but one out, projecting out far enough to do the chipping. Either the first or the second one is generally the one that we leave stand, and drive the others in so that they will not interfere with the work. Then you have the same kind of machine, the action of which is then practically the same, as in the chipping machine described in Figs. 5 and 6; the difference being that, instead of being held between disks, the plate is held in the hand and rotated as the chipping progresses. This can be done very successfully and neatly, but not with the same degree of certainty as if the plates are put between the disks and in the special machine made for that purpose. * * * Q. Can you not state about how long it is since you thought of chipping with a single pin, holding the glass by hand, and when chipping with a number of pins? A. I thought of that way back near the start, I saw the possibility of chipping ovals and circles, as well as straight lines. on the drum: and it was that thought that was carried out in making this circular chipper, instead of driving the pins in on the drum. Instead of using it that way. I thought it would be more convenient the other way. It was from the drum that I got the idea of building the circular machine. The circular machine is only a special application of this idea which is contained in the first patent."

It will thus be seen that this device differs from the structures of the prior patent in that its table is movable, whereby the plate edge is brought in alignment with the successive strokes of the pin. The movable feature of this table is noted in the specifications:

“This table is shifted step by step to bring successive portions of the article into the plane of movement of the pin, 2.”

“By this construction the table carrying the article will be moved forward a predetermined distance on each revolution of the drum and pin; such distance being proportionately t'o the desired width of the scallop.” I

“The invention described herein relates to * * * and has for its object a construction and combination of mechanical devices whereby portions of the edges may be taken away in such manner as to produce an inclined scallop or indentation on the edge; a series of such scallops being produced by a regulated feed of the glass transversely of the line of the movement of the pin operating to produce the scallop.”

The element of a table with movable capacity is found in both the claims, viz., “a table * * * and means for shifting the table step by step across the path of movement of pin.” Now, in view of Conroy’s-earlier device and the restricted field open for the grant of this patent, the movable table will be regarded as one of its essential features. It is evident, if the patent depends for novelty simply on the use of a single pin on a carrier, instead of the multiple pins of the other device, a grave question of patentability would arise. The other feature of a shifting feed table is required to confer patentability on the combination. That feature being carried into the claims, we cannot reconstruct them by striking it out, which we here in effect do, if we hold that defendant’s machine No. 2 infringes. It has no movable table. The function of the machine-moved, step by step table of the claim is wholly performed by hand. Nor is a movable table found in respondent’s N0. 3 structure. It is said, however, that in it there is a mere transposition of parts; the table being fixed and the pin made movable, instead of the table being movable and the pin fixed, as in the device of the patent. But it is evident there is here not a mere transposition of parts, but two wholly different structures mechanically. The frame of the machine is a large horseshoe shaped casting firmly bolted to a rigid support. A circular plate of glass (in No. 4, an oval) is clamped between two stationary horizontal plates in the open end of the shoe. The glass projects slightly beyond the plates. An arm is pivoted above the plates and concentrically with them. This armhas pivoted on its lower side another arm, sectorshaped, which carries on it a chipping pin. The sector-arm is held to its lowest range of movement by a spring. The revolution of the arm not only puts the chipping pin in alignment with the successive places to be chipped on the circular plate, but by means of a trigger contact between a detent carried on the arm and a ratchet on the upper surface Of the stationary clamping plate the sector-arm is intermittently drawn up and released. The successive, evenly spaced blows of the pin, thereby actuated, chip the plate. Manifestly this is a wholly different mechanical structure from that of the patent. Not only is the table stationary, but its fixed position co-operates through its ratcheted plate to cause the pin to reciprocate. A new element is found in the pin-carrying sector, and its reciprocating movement results from the movement Of an arm in a horizontal orbit concentric with the stationary, circular, clamping plate.

It is clear that the respondent has in this device devised another method of chipping glass, and that it employs different mechanical means from complainant’s and uses other and additional elements.

We accordingly hold that infringement is not shown.

AMERICAN GRAPHOPHONE CO. v. INTERNATIONAL RECORD CO. (Circuit Court, S. D. New York. June 11, 1907.)

PATENTS—SUIT FOR INFRINGEMENT—PRELIMINARY INJUNCTION.

The presumption in favor of the validity of a patent created by a decision of the Circuit Court of Appeals sustaining it cannot be overcome on a motion for a preliminary injunction in a subsequent case by ex parte afiidavits relating to matters occurring several years previously.

In Equity. Suit for infringement of letters patent NO. 688,739, for a process for making sound records, granted to joseph W. jones December 10, 1901. On motion for preliminary injunction.

C. A. L. Massie, for the motion.
Waldo G. Morse, opposed.

LACOMBE, Circuit judge. This patent was sustained and construed by the Court of Appeals upon voluminous records and after a long hearing on exhaustive briefs. Am. Graph. Co. v. Universal Talking M. M. CO. and Same v. American Record CO. (C. C. A. Second Circuit, jan. 14, 1907), 151 Fed. 595. This creates a presumption in favor of the patent, which defendant must rebut by satisfactory proof. It relies mainly upon affidavits and an abandoned application. W hether the statements of the afliants are Of such a character as would induce the Court of Appeals, if it believed them, to modify its former opinion, is at least doubtful; but certainly in their present condition, untested by cross-examination and dealing with the events of ten years and more ago, this court cannot accept them as sufficient ground for overruling the Court of Appeals as to either validity or construction.

Under the rules as to additional processes‘adopted by the Court of Appeals in the American Record Case, infringement seems to be quite satisfactorily made out, although the evidence is mainly circumstantial.

Complainant may take order for preliminary injunction.

AMERICAN GRAPHOPHONE CO. v. LEEDS & CATLIN CO.
(Circuit Court, S. D. New York. June 11, 1907.)

1. PATENTS—INFRINGEMENT—TALKING MACHINE RECORDS. . The mere making of duplicate copies of fully finished, commercial. foreign-made records for talking machines does not constitute infringement of the Jones patent, No. 688,739, for a process of producing sound records.

2. SAME—SUIT FOR INFRINGEMENT—PRELIMINARY INJUNCTION.

Preparations or threats to infringe a patent shown by ex parte affidavits only are not sufficient to warrant the granting of a preliminary injunction.

[Ed Note—For cases in point, see Cent. Dig. vol. 38, Patents, § 479.]

In Equity. Second motion for preliminary injunction.
See 140 Fed. 981.

Philip Mauro, for the motion.
Louis Hicks, opposed.

LACOMBE, Circuit Judge. The court is not satisfied, upon the proof, that prior to the commencement of the suit defendant accom— plished anything (in the way of infringement) otherwise than the making duplicate copies of fully finished commercial foreign-made records. And it is thought that the making of such duplicates did not , constitute infringement. The case is readily differentiated from Victor T. M. Co. v. Leeds & Catlin Co. (C. C.) 150 Fed. 147, and (C. C. A.) 154 Fed. 58, where by stipulation it was conceded that the particular discs complained of were made expressly for insertion in an infringing combination, not for general commercial purposes.

Whether a sufficiently strong case can be made out of preparations and threats to infringe to warrant injunction is a question which should be left till final hearing. It cannot well be decided on affidavits.

The motion is denied, without leave to renew. Complainant has now moved twice for preliminary relief, and the time of the court should not be again claimed for the consideration of such a voluminous record until at interlocutory hearing on pleadings and proofs it may be able to dispose of all the issues.

INTERNATIONAL MEROANTILE MARINE CO. v. STRANAHAN.

OOEANIC STEAM NAVIGATION CO. v. SAME.
(Circuit Court, S. D. New York. August 24, 1907.)

1. CONSTITUTIONAL LAW—VALIDITY OF STATUTES—JUDICIAL AUTHORITY AND DUTY.

For a court of first instance to declare unconstitutional an act of Congress is an exercise of judicial power which, in cases where no great andimmediate financial loss is threatening, is warranted only when the unconstitutionality exists beyond rational doubt.

[Ed. Note—For cases in point, see Cent. Dig. vol. 10, Constitutional Law, § 42.]

2. SAME—DUE PROCESS OF LAW.

Section 9 of the immigration act of March 3, 1903 (32 Stat. 1215, c. 1012 [U. S. Comp. St. Supp. 1905, p. 279]), which makes it unlawful to, bring into the United States any alien afiiicted with a loathsome or with a dangerous contagious disease, and provides that “if it shall appear to the satisfaction of the Secretary of Commerce and Labor that any alien so brought * * * was afiilicted with such disease at the time of foreign embarkation and that the existence Of such disease might have been detected by means of a competent medical examination at such time. such * * * transportation company * * " shall pay to the collector of customs * ' ' $100, for each and every violation of the pro-

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