This is an action at law by Cartan & Jeffrey Company, a corporation, to recover from Arthur B. Allen, collector of internal revenue, alleged excessive taxes on its income, aggregating $5,840.23, which were paid by it. In its complaint the plaintiff alleged many relevant facts which it claimed entitled it to recover this amount. By its answer, the defendant denied most of these allegations. The parties waived a jury, a large amount of evidence upon the issues made by the pleadings was introduced, and at the close of the trial the court made a general finding of all the issues in favor of the plaintiff and rendered a judgment for the amount claimed and interest. The collector sued out this writ of error upon an assignment of errors in these words: In this state of the case this court announced that, under the established rules and practice of the federal appellate courts, findings of fact and the judgment of the District Court below, challenged by the assignment of errors, were not reviewable upon the record presented to this court, and affirmed the judgment below. The defendant, the collector, now presents a petition for an order on the plaintiff, the Cartan & Jeffrey Company, to show cause why that judgment should not be set aside, and a hearing had on the questions suggested by the assignment of errors. But that judgment and the action of the court in this case were in strict accord with the long established and settled rules and practice of the federal appellate courts in "(1) The court erred in finding upon all such cases. Ten years ago, in Wear v. Imthe issues in favor of plaintiffs. "(2) The court erred in holding that plaintiff in 1917 was a trade or business having no invested capital or not more than a nominal capital within the meaning of section 209 of the Revenue Act of 1917. "(3) The court erred in holding that plaintiff in 1917 was a trade or business having not more than a nominal capital within the meaning of section 209 of the Revenue Act of 1917. "(4) The court erred in holding that there was due from the defendant to the plaintiff, on the cause of action set out in the petition, $5,840.23, together with interest thereon at the rate of 7 per centum per annum from March 14, 1923, computed to date of judgment, amounting to $487.16. "(5) The court erred in rendering judgment for the plaintiff in the sum of $6,327.39, or in any sum whatever. perial Window Glass Co., 224 F. 60, 63, 139 C. C. A. 622, 625, speaking of counsel who sought a review by this court of the findings of the trial court in an action at law on a waiver of a jury, this court said: "They invite this court, in other words, to retry this case and to determine whether or not, under the applicable law the weight of the evidence sustains the finding and judgment. But the case was tried by the court below without a jury, and its decision of that issue is not reviewable in this court. It is, like the verdict of a jury, assailable only on the ground that there was no substantial evidence in support of it, and then it is reviewable only when a request has been made to the trial court before the close of the trial that it adjudge, on the specific ground that there was no substantial evidence to sustain any other conclusion, either all the issues or some specific issue in favor of the request "(6) The court erred in refusing to enter ing party. No such request was made in this judgment for the defendant." When the case was presented to this court for argument, the transcript of the record disclosed, as it still does, the fact that no request or motion had been made to the trial court by the defendant, the collector, before the close of the trial that it adjudge on the specific ground that there was no substantial evidence to sustain any other conclusion on either all the issues or any specific issue in favor of the defendant; that before the close of the trial no request whatever had been made to the trial court upon that ground for its finding in the defendant's favor on any of the issues upon which his finding was after the judgment alleged to be erroneous by the defendant's assignment of errors. case, and the specifications of error, therefore, present no question reviewable by this court. When an action at law is tried without a jury by a federal court, and it makes a general finding, or a special finding of facts, the act of Congress forbids a reversal by the appellate court of that finding, or the judgment thereon, 'for any error of fact' (Revised Statutes, § 1011; U. S. Compiled Stat. 1913, § 1672, p. 700), and a finding of fact contrary to the weight of the evidence is an error of fact. "The question of law whether or not there was any substantial evidence to sustain any such finding is reviewable, as in a trial by jury, only when a request or a motion is made, denied, and excepted to, or some other like action is taken which fairly presents 7 F.(2d) 21 that question to the trial court and secures its ruling thereon during the trial. United States Fidelity & Guaranty Co. v. Board of Com'rs, 145 F. 144, 150, 151, 76 C. C. A. 114, 120, 121, and cases there cited; Mercan- tile Trust Co. v. Wood, 60 F. 346, 348, 349, 8 C. C. A. 658, 660, 661; Barnard v. Randle, 110 F. 906, 909, 49 C. C. A. 177, 180; Barns- dall v. Waltemeyer, 142 F. 415, 417, 73 C. C. A. 515, 517; Bell v. Union Pacific R. Co., 194 F. 366, 368, 114 C. C. A. 326, 328; Seep v. Ferris-Haggarty Copper Min. Co., 201 F. 893, 894, 895, 896, 120 C. C. A. 191, 192, 193, 194; Pennsylvania Casualty Co. v. White- way, 210 F. 782, 784, 127 C. C. A. 332, 334. "There is another reason why no review- able question of law is presented to this court in this case. A trial court is entitled to a clear specification by [objection and] excep- tion of any ruling or rulings which a party challenges and desires to review, to the end that the trial court itself may correct them if so advised, and if it fails to do so, that there may be a clear record of the rulings and the challenges thereof. For this purpose a rule has been firmly established, that an exception to any ruling which counsel desire to review, which sharply calls the attention of the tri- al court to the specific error alleged, is in- dispensable to the review of such a ruling. Block v. Darling, 140 U. S. 234, 11 S. Ct. 832, 35 L. Ed. 476; Webb v. National Bank of Republic, 146 F. 717, 719, 77 C. C. A. 143; Union Pacific R. R. Co. v. Thomas, 152 F. 365, 372, 81 C. C. A. 491, 498; Ar- mour Packing Co. v. United States, 153 F. 1, 16, 82 C. C. A. 135, 150, 14 L. R. A. (N. Such were then, and in our opinion still are, the established and general rules and practice in such cases. United States v. At- chison, T. & S. F. R. Co. (C. C. A.) 270 F. 1, 3, 4; Geiger v. Tramp (C. C. A.) 291 F. 353, 357; Highway Trailer Co. v. City of Des Moines, Iowa (C. C. A.) 298 F. 71, 72, 73; Granite Falls Bank v. Keyes (C. C. A.) 277 F. 796, 797; Arkansas Anthracite Coal & Land Co. v. Stokes (C. C. A.) 277 F. 625, 627; Ewert v. Robinson (C. C. A.) 289 F. 740, 755, 35 A. L. R. 219; Rutan v. John- son & Johnson, 231 F. (3 C. C. A.) 369, 373, 145 C. C. A. 363; Raymer v. Netherwood, Bank of Sioux City v. Old Nat. Bank of Battle Creek, 241 F. 1, 7, 154 C. C. A. 1; Haynes Automobile Co. V. Kansas Casualty & Surety Co. (C. C. A.) 261 F. 347, 348; United States v. Bowling (C. C. A.) 261 F. 657, 660; McCool v. United Counsel, however, contends that these rules and this practice have been abolished by the amendment by Act Feb. 26, 1919, to section 269 of the Judicial Code (Comp. St. Ann. Supp. 1919, § 1246), whereby it was pro- vided that: "On the hearing of any appeal, certiorari, writ of error, or motion for a new trial, in any case, civil or criminal, the court shall give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or excep- tions which do not affect the substantial rights of the parties"-and in support of the findings of facts of trial courts, in the or required the appellate courts to review absence of any request, motion, or any other like action demanding the findings desired and excepting to the refusal of the trial court to make them, received the study, medi- tation, and decision of this court before the opinion in the Muentzer Case came to our at- tention, and Judge Munger, after an ex- haustive examination of the pertinent argu- ments and authorities, in an elaborate and considered opinion expressed our view and conclusions and the reasons for them in Fein- berg v. United States (C. C. A.) 2 F. (2d) 955, 956. Another consideration of the question, in deference to the opinion in the Muentzer Case, has not changed our views or conclusions, but has confirmed them. The later case of Miller v. United States, not cited in our former opinion (300 F. [6 C. C. A.] 529, 534), is in accord with our views. For the reasons which have now been stat- 24 . 711, 71 LED. 852, 47 Sup. Ct. 101. 7 FEDERAL REPORTER, 2d SERIES UNIVERSAL RIM CO. v. FIRESTONE TIRE claims 1 and 9, and 2 and 6, of patent No. & RUBBER CO. et al. (Circuit Court of Appeals, Sixth Circuit. July 18, 1925.) 2. Patents 36- Mere commercial success does not justify sustaining monopoly. No amount of commercial success will justify sustaining a monopoly, where it clearly and certainly appears that the step taken by the patentee did not involve inventive merit. 3. Patents 328-1,095,775, claims 1, 9, for demountable tire-carrying rims, held not infringed. The Baker patent, No. 1,095,775, claims 1 and 9, for improvement in demountable tirecarrying rims, transversely split at one point and connected by a plate, held not infringed. 4. Patents 328-1,095,775, claims 2, 6, for demountable tire-carrying rims, held not infringed.. The Baker patent, No. 1,095,775, claims 2 and 6, for improvement in a tire-carrying rim, characteristic element of which was form of plate connecting rim at tranverse cut, so as to serve as a driving connector, held not infringed. 5. Patents 25-Locking stud and driving stud held mere aggregation. A locking stud and a driving stud, which have no interrelation, except their common carrying plate, constitute only an aggregation. Appeal from the District Court of the United States for the Eastern Division of the Northern District of Ohio; D. C. Westenhaver, Judge. Suit for infringement of patent by the Universal Rim Company against the Firestone Tire & Rubber Company and another. From a decree dismissing the bill (289 F. 884), plaintiff appeals. Modified, and, as so modified, affirmed. 1,095,775, for a demountable rim, issued to Universal Rim Company, as assignee of Baker, on May 5, 1914, upon an application filed June 13, 1910. The specified claims are quoted in the margin.1 The District Court dismissed the bill. As the automobile art had developed some little time before 1910, the pneumatic tires in common use were of two classes-those in which the beads were elastic and those which had nonextensible beads. The rims which carried these tires necessarily had inside and outside flanges to prevent the tires from slipping off. Where the beads were elastic, and when it was necessary to remove a tire from the rim, the tire could be stretched over the outside flange; but with the nonextensible beads this could not be done. Hence it was necessary to make the outer flange removable, and it became a ring separable from the rim of which it was functionally a part. This was the situation of the art when it was observed that the tire could be carried upon an independent or demountable rim, distinct from the permanent or felly rim, and in this way a spare tire could be carried, inflated and ready for quick substitution when necessary. This demountable rim was held in position upon the felly by various methods. One means, well known before the invention of the patent in suit, consisted in making the demountable rim substantially larger than the felly band, providing wedges or wedge connections between 1 "1. A one-piece, integrally flanged, demountable rim of the bolted-on class described, and transversely split at one point only in its circumference, in combination with a plate extending across said split and positively and nonadjustably, but detachably, connecting the ends of the rim, for the purposes specified." "9. A one-piece, integrally flanged, demounta ble rim of the bolted-on class described, trans- Arthur Wm. Nelson, of Chicago, Ill., for able rim of the bolted-on class, described and appellant. Edward Rector, of Chicago, Ill. (Albert L. Ely, of Akron, Ohio, F. O. Richey, of Cleveland, Ohio, and Amos C. Miller, of Chicago, Ill., on the brief), for appellees. Before DENISON, DONAHUE, and KNAPPEN, Circuit Judges. DENISON, Circuit Judge. This is the usual patent infringement suit, based on transversely split at one point in its circumference, in combination with a one-piece combined driver and rim end connector extending across said split and positively, but detachably, connecting the ends of the rim, for the purposes specified." "(6) A one-piece, integrally flanged, demountable rim of the bolted-on class described, and transversely split at one point only in its circumference, in combination with a combined rim end connector and driver, positively, but detachably, connecting the ends of the rim, for the purposes specified." 7 F.(2d) 24 the two, and then by bolts and nuts tightening the wedge connection until there was a rigid holding. This was known as the "bolted-on construction," and is what is thus referred to in the claims. Obviously there was the same problem as with a permanent rim in getting the tire past or over the outer rim flange; and, in view of the fact that the nonextensible form of bead had many advantages appealing for general use, and that a separate ring flange upon a demountable rim was more or less impracticable, other means were desirable for getting the tire onto the rim. This had been done by making the rim collapsible, and either making two or three joints so that sections of the rim could be turned inwardly, or making one split, tranversely through the rim, leaving two opposed free ends, one of which could be permitted to slip under the other, and the rim, on account of its spring tension construction, would then collapse sufficiently to allow the tire to pass over the outer flange. These free ends were then restored to their opposed position and suitably held there. Baker's invention pertained to the class of rim with the single transverse split. Un [1,2] Upon this record Baker was the first man in the United States who ever made a split rim and attached it with wedge bolts, without any dependence upon outside restraining means. The record also indicates that the enormous and well-nigh universal adoption of the idea thus broadly stated is fairly to be credited, in a commercial sense, to Baker and to his commercial efforts. der such circumstances, the case for the patentee is a strong one, and his claims cannot be narrowly construed, or held void for lack of invention unless these defenses are most clearly made out; but no amount of commercial success will justify sustaining a monopoly, where it is made clearly and certainly to appear that the step taken by the patentee did not involve any inventive merit. It is quite plain that some of the claims (it is sufficient to specify claim 1) contain language which is ambiguous, in the sense that without distortion it will read upon a great variety of structures, including defendant's form, and yet, by referring to the specifications and drawings for interpretation, may be much restricted. For example, claim 1 calls for "a plate extending across said split." Even if given a somewhat liberal construction, this might be interpreted as confined to a plate of the general type and function shown in the drawing, or it might be read still more broadly as covering any suitable gap-spanning bridge. Hence it is desirable to know the state of the art, as affecting the breadth of construction which can rightly be given, and to know the defendant's form of device, as. indicating the breadth of construction which must be given in order to reach the particular defendant now sued. A conclusion in favor of a defendant may rest upon a holding that there was no invention involved, or a holding that, under a proper construction of the claims, defendant does not infringe, or a holding that, if the claims are given a construction which supports the finding of infringement, they will be too broad to be valid. Which line is best to be followed will depend upon the facts of the case. The devices of the patent drawing and of the defendant, said to infringe, are shown in the following cuts. Plaintiff's different forms, which have had commercial success, approximate that of defendant more than they do that of the patent drawing: PATENT IN SUIT Figl 21 Fig.2. Taking up the prior art: The conclusions of the District Court were based largely upon a French patent to Boquillon, and the argument in this court has been largely devoted to that patent. The questions are whether Boquillon antedated Baker's invention, whether the French patent substantially disclosed the characteristic thought of Baker, and whether certain language in the French specifications as to permissible variations was a sufficient prophecy of Baker's final step. We think best to pass by all these questions without intimation of opinion, and rest our conclusion upon what seem to us compelling reasons, found at home. Baker's application was filed in June, 1910. He does not undertake to put his conception of the broad thought of his invention—that is, a combination of the single split rim, the bolted-on construction, and the rim ends interholding means earlier than the fall of 1908. Before that date there were two existing United States applications for patents which are material. They were that of Shaw, filed May 25, 1907, which resulted in patent 971,318, issued September 27, 1910, and that of Hawley and Baker (the same Baker) filed April 11, 1908, and issued March 23, 1909, No. 915,954. In accordance with our established view, it must be held that Baker cannot be the first inventor of anything which had previously been completely invented and constructively reduced to practice by Shaw, even though Shaw's patent did not get issued until after Baker's application was filed, and likewise that Baker must disclose an inventive advance over Shaw. The same considerations apply to the earlier application of Hawley and Baker. If the Hawley and Baker application and patent disclosed only a specific application of Baker's now alleged generic idea, it would be theoretically possible that the Hawley and Baker application would be immaterial upon the subject of whether Baker had already taken a step involving invention; not so, where his step was taken after the Hawley and Baker application. He cannot be the first inventor of something which is not patentably distinguishable from what Hawley and Baker had already jointly invented. catches which may be gripped by a clamping tool, by means of which the rim ends can be brought together and locked in that position, or when unclamped they can be separated by a driven wedge. They were expanded for the purpose of putting the rim on the felly or taking it off, contracted to hold the rim in position. Shaw discloses, also, a "one-piece, integrally flanged, demountable rim of the bolted-on class described, transversely split at one point only." His rim was not distinguishable from that of the patent in suit, except in the particulars to be mentioned; the free ends slipped past each other, permitting sufficient contraction to get the tire on, and then they were expanded to their abutting position, all just as by the patent in suit. Not only was this true, but the Shaw rim was "of the bolted-on class described." He says that his rim is attached to the felly by wedging engagement therewith, and he shows a nut and bolt means for causing the driving and holding of the wedges, which brings him clearly within this class. It is true that his integral flanges on the rim were not so shaped as to hold the tire firmly enough, but they did hold separable and higher flanges, which in turn held the tire beads in position. This subdivision of the rim, so as to carry a separable endless retaining flange, was desirable for the clencher type of tire shown in the drawing; but the specification points out that it may by a simple modification be adapted to the straight-sided tire, and with that form of tire there would be no occasion to have the flange separate. The free ends of this Shaw rim were held, when expanded, by the construction shown in the following cut: The record shows that some Hawley and 6Baker device, apparently some modification of 915,954, was quite extensively on the market before Baker claims to have developed, to a substantial extent, his idea of the patent in suit. The Hawley and Baker device of the April, 1908, application is a "one-piece, integrally flanged demountable rim transversely split at one point only in its circumference." The meeting ends are provided respectively with |