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adverted to and adduced on the petition for supplementary injunction.
It is plain (and as much is shown by the opinions of the trial courts) that in order to bring the present alleged infringements within condemnation, we must considerably enlarge the definition or meaning of “magnetic symmetry," deemed sufficient (if not final) when the patent was here before; and we are now introduced to other phrases thought to picturesquely describe or characterize Lindquist's apparatus, to wit, "functional cylindricity” and the "business end" of any given magnet.
The conduct of this litigation emphasizes the danger of a sort of exposition or argument by no means uncommon in patent causes. We have said that the phrase "magnetic symmetry” cannot be discovered in the patent; nor can either of the other argumentative expressions above set forth. "Functional cylindricity" appears to mean any physical arrangement of parts even approximately productive of a result most conveniently arrived at through or by means of a cylindrical disposition of the same; while the "business end” of a magnet is "the one which determines whether chattering will occur or not.” Phrases such as these, if used or accepted without great reservation, are apt to be treated, not only as convenient descriptions of operation or method, but as being the very patent itself; and it is scarcely figurative to say that plaintiff measures infringement in this case, not by the language of the patent nor even the language of the courts, but by the asserted applicability of phrases invented by experts. Thus we are informed on this hearing that:
"Magnetic symmetry may be defined as such a distribution of the magnetic fuxes in the polar faces which are in contact when the magnet is energized as will provide out-of-step pulls, the resultant of which never disappears and is substantially constant in direction and point of application.”
No such definition of magnetic symmetry has ever been admitted by this court; nor (even upon the evidence formerly before us) can it be discovered in the patent. It requires that the resultant of outof-step pulls of successively acting alternating currents "shall never disappear”; but, if entire disappearance is meant, that was old. It further requires constancy in direction and point of application. This is found in the Lindquist device only by discarding Fig. 5; but the present definition deliberately explodes the theory of the case against Magnet H by introducing the word “substantially,” which, when interpreted in the light of the instruments now alleged to infringe, must mean any arrangement of dephased or out-of-step alternating currents which will produce a commercially successful article. Under such an interpretation as this the Lindquist claims would read directly upon substantially all the magnets of prior art referred to in the original record; e. g., Scott's and most of Schuckert's.
Even if the meaning and scope of the claims in suit were measured solely by the former opinion of this court, all the devices now called
2 The shape, arrangement, and 'general appearance of these alleged infringements are sufficiently shown in 235 Fed. 711 et seq.
infringements® are lacking in what we substantially held to be one test of infringement under the Lindquist patent, to wit, a central pull; that is, a pull along the line of the axis of mechanism. It was because Scott did not have such central pull that his patent was held no anticipation. The present devices have no central pull, for the same magnetic reason that Scott had none; and-to hold (as has been done in the General Electric Case on supplementary petition) that a patent did not anticipate, and yet declare infringement in respect of a device built along the lines of the nonanticipating patent, is clearly erroneous.
But, when all the testimony in both these appeals is considered, the propriety of rejecting the proposed definition of magnetic symmetry is much emphasized, for plaintiff now relies upon the disclosure of Fig. 5 as enough to cover a constant pull with a shifting direction, on Fig. 7 as disclosing a pull of fixed direction, but fluctuating in strength, and on the rest of the specification as covering a pull Aluctuating neither in strength nor direction, and fixed at the mechanical center of the apparatus described and diagrammed. It was this last form of magnet of which Schuckert disclosed the theory, Ihlder reduced it to practice, Lindquist improved on Ihlder's construction, and our present opinion is that he did nothing more.
All the disclosures of the specifications can be reconciled or harmonized only upon the theory of physical or geometrical symmetry. This was what Lindquist intended when (ut supra) he pointed out that in all of his described apparatus "the axes of the coils are always parallel to and symmetrically disposed around the axes of the cylindrical magnet core.” This statement is consonant with a mechanically cylindrical, circular, or regularly polygonal form of apparatus, and with no other sort; if the claims are referred to this kind of symmetry they are consistent with the specification; construed in any other way they are not.
This conclusion covers the case, except for the motion to reopen the General Electric Case.
 This application is made at a time long after the expiration of the term at which our decision in 204 Fed. 277, 122 C. C. A. 475, was rendered. It is therefore now beyond our power to recall the mandate. Reynolds v. Manhattan Trust Co., 109 Fed. 97, 48 C. C. A. 249; Waskey v. Hammer, 179 Fed. 273, 102 C. C. A. 629; Watts v. Unione Austriaca, 239 Fed. 1023, G. C. A. Since the lower court has entered no final decree, the case is there pending; but the action of that court is controlled by the mandate issued by us on appeal from interlocutory decree. The lower court can now do nothing but execute the mandate. In re Potts, 166 U. S. 263, 17 Sup. Ct. 520, 41 L. Ed. 994.4
It follows that in this court there is nothing to reopen-no pending cause in which the newly discovered evidence could be introduced.
8 I. e., the Cutler-Hammer magnet and General Electric Magnets A to G, inclusive.
4 This decision resulted from and disapproved Potts v. Creager (C. C.) 71 Fed. 574, and is inconsistent with the language of Shipman, J. in Re Mar. quand, 57 Fed. 189. 6 C. C. A. 309. Therefore the latter case can no longer be held authoritative.
There is such a cause in the District Court, and all that prevents application to the discretion of that court for leave to introduce said evidence is our mandate.' Where a case was actually pending on appeal in this court, and similar motion was made, we held that the suit would not be remitted to the lower court for such purpose, except upon the request of that court. Cimiotti, etc., Co. v. American, etc., Co., 99 Fed. 1003, 39 C. C. A. 677, following Roemer v. Simen, 91 U. S. 149, 23 L. Ed. 267. Even though no cause is now pending here, we think that substantially similar procedure is permissible and preferable. The District Court cannot open the interlocutory decree affirmed by our mandate; but it can exercise its discretion and form its own judgment as to whether such reopening and taking of additional testimony ought to be permitted, and if and when it requests leave so to do we can grant such request.
This practice attains the same result as that of In re Gamewell Co., 73 Fed. 908, 20 C. C. A. 111, and Wagner v. Meccano, 235 Fed. 890, 149 C. C. A. 202, and is consistent with the reported practice of the Supreme Court. Whether, if the General Electric Case proceed to final decree (without reopening) and an appeal from that decree be taken, the interlocutory decree (although heretofore affirmed) should be regarded as still interlocutory so far as this court is concerned, is a matter upon which no opinion need be now expressed. This application may be now made in the lower court, where in some shape it must always be made; for the motion to reopen is in effect an application for leave to file a supplemental bill in the nature of a bill of review. It is enough for present purposes to enter an order authorizing the District Court to entertain and act upon the application, should defendant prefer the same, notwithstanding the issuance and filing of the mandate hereinbefore referred to.
Contemporaneously with the entry of such order mandates may issue respectively affirming, with costs, the decree of the Southern district, and reversing, with costs, so much of the decree entered in the Northern district upon petition for supplementary injunction as declared Magnets A to E to be infringements. The appeal of the plaintiff, from the decree of the Northern district, will be dismissed, without costs.
EXCELSIOR STEEL FURNACE CO. v. F. MEYER & BRO. CO. (Circuit Court of Appeals, Seventh Circuit. April 10, 1917. Rehearing
Denied May 17, 1917.)
PATENTS C-328_VALIDITY AND INFRINGEMENT-HOT-AIR PIPES.
The Scherer patent, No. 724,210, for hot-air pipes having double walls, claims 1 and 2, covering the telescopic adjustment of the sections, are void for prior public use by another. Claims 3, 4, and 5 disclose invention and are valid; also held infringed.
Appeal from the District Court of the United States for the Northern Division of the Southern District of Illinois.
Suit in equity by the Excelsior Steel Furnace Company against the F. Meyer & Bro. Company. Decree for defendant, and complainant appeals. Reversed.
Benjamin T. Roodhouse, of Chicago, Ill., for appellant. Winslow Evans, of Peoria, Ill., for appellee. Before BAKER, KOHLSAAT, and MACK, Circuit Judges. MACK, Circuit Judge. This is an appeal from the decree of the District Court dismissing, for want of equity, a bill brought to restrain the alleged infringement of all the claims of letters patent No. 724,210, for hot-air pipes, issued March 31, 1903, to appellant, as assignee of Albert G. Scherer, upon an application filed April 19, 1900.
The patent relates to the construction of double wall hot-air pipes used to conduct and distribute hot air from the furnace to various parts of the house or building. Double wall pipes held in spaced relation, so as to provide between the outer and inner wall a narrow air chamber serving as an insulator to prevent both radiation of the heat as it is conveyed and its direct transmission to and overheating of the outer pipe, with the consequent danger of fire, are found in the art prior to the patent in suit. What is claimed as new and useful in the invention is: First, the means of telescopically adjusting the sections of the pipe to conform to any of the manifold lengths that may be required in the installation of such pipe, without the expense and the trouble of having sections manufactured or cut to the exact size desired; second, an inwardly turned bend or crimp in the corners, which makes it possible for the walls of the inner pipes to be pressed bodily inwards by reason of their yielding character while the fitting is effected.
Claims 1 and 2 cover the telescopic adjustment; claims 3, 4, and 5, the inwardly turned corner or crimp. These latter claims read as follows:
3. A flat-sided sheet-metal pipe-section, having its corners formed with inwardly turned compressible bends, whereby the flat sides of the pipe are inwardly yielding.
4. As a means for jointing telescopically sheet-metal pipe-sections, the combination of two such sections composed of flat walls meeting each other at
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angles, the inner pipe having its corners formed with inwardly-turned compressible bends.
5. A flat-sided section for hot-air stacks, consisting of inner and outer walls or pipes and a connecting diaphragm, the corners of said pipes being formed with inwardly-turned compressible bends.
Claims 1 and 2 must be held void, because the evidence clearly and satisfactorily shows that pipes embodying the invention claimed therein were sold by the defendant prior to the filing of the application for the patent in suit. The defendant's manager, superintendent, foreman, and salesman all testify to the use prior to 1898 of a double wall, telescopically adjustable pipe; and there was introduced in evidence a section of pipe which was testified to by them to be the original one made in 1896-97 by the superintendent and preserved by him. Two of the witnesses, the manager and the foreman, recalled that some of the first work given to an apprentice who came to the firm in 1898 was upon sections of this style of pipe, and that this sort of work had been done at the factory at least one year before that time. Their testimony is strengthened and corroborated by that of the apprentice. The superintendent remembered that he made and designed the device offered in evidence in the winter of 1896-97, after an order for pipe with a slip joint—that is, a pipe telescopically adjustable—had been taken by defendant's salesman, who was identified as having sent in the first order by both the superintendent and foreman. He testified that at least three years before 1900, when he left the employ of the defendant company, he took an order for a slip joint pipe from a dealer who was trying to please a lady; that he had talked with her, and she had impressed herself upon his memory by reason of her extraordinary meticulosity.
Intrinsically, there is nothing in this evidence that is improbable or open to suspicion or doubt. Although naturally, as to these matters, which occurred over 18 years ago, the evidence in some respects is lacking in detail and explicitness, it is on the whole cumulative, corroborative, and consistent. The two devastating fires that destroyed the defendant's factory satisfactorily account for the failure of the defendant to produce the records of the occasional sales of such pipe alleged to have been made by it prior to 1900, and the preservation of the original pipe sections is satisfactorily explained by the testimony that the fires did not reach the place where they were kept. The trial judge found the witnesses to be men of character and standing, and their testimony entirely credible. We cannot say that he erred in expressly finding that the proof established the prior use beyond a reasonable doubt.
The evidence does not, however, establish the prior public use of inwardly-turned compressible bends, whereby the sides of the pipe are inwardly yielding. Although the defendant's manager, superintendent, foreman, and apprentice all testified that it was about 1898 when the defendant first began to make this pipe with a short crimp in the upper corners of the pipe section, it does not appear that such a crimp could perform the peculiar function of the longer crimp in the patented structure. None of the defendant's witnesses were able to fix definitely