149 F. 743 | 3rd Cir. | 1906
The patent in suit is for a machine to cut caramels and other similar candy products issued to M. S. Ilershey January 13, 1893. The bill was dismissed upon the ground that there was nothing patentable in the device; all the elements being old, and there being no invention in putting them together in the way that was done. (C. C.) 138 Fed. 142. The machine consists in a stationary table, suitably supported, having a transverse slot or opening, through which a feed roller projects upwards from below, and over which a blade roller, armed with circular cutting discs or knives, is hung, conformably to the feed roller; the two being so geared and journaled that their meeting surfaces move forward together in the same direction. To carry the material to be cut, a blade or pad is provided, which is drawn with such material, along the table as a rest or guide, between the cutting and the feed rollers, by the frictional action of the same, during the course of which operation the cutting takes place. The table may be level, or may incline from the feed to the delivery end; and the rollers may or may not be vertically adjustable to suit different thicknesses of the candy. The plate or pad is preferably made of some
The claims of the patent are as follows:
“1. The combination, with a slotted table, of a shaft having blades and journaled above said slot, a roller journaled below the slot, said shaft and roller being so geared that their adjacent parts move in the same direction, and a plate or pad adapted to be drawn between said blades and the roller by the frictional action thereof, for the purpose specified.
“2. The combination, with a slotted table, of a shaft having blades and journaled above said slot, a roller journaled below the slot, said shaft and roller being so geared that their adjacent parts move in the same direction, snd a flexible plate or pad adapted to be drawn between said blades and the roller by the frictional action thereof, for the purpose specified.
“3. The combination, with a slotted table, of a vertically adjustable shaft having blades and journaled above the slot, a roller journaled below the slot, said shaft and roller being so geared that their adjacent parts move in the same direction, and a flexible plate or pad adapted' to be drawn between the blades and the roller by the frictional action thereof, substantially as and for the purpose specified.”
■ The only difference in these claims is that in the second and third the pad is flexible, and in the third the cutting shaft is vertically adjustable.
No such combination, as is- so specified, is to be found in the prior art, however the different elements of which it is composed may appear there. The Wunderle machine (unpatented),' which is the first reference made, is a very old and primitive affair, built in 1874, in which there is nothing but the merest rudiments. It was used for fig paste, and consists' simply of an upper shaft, vertically adjustable, with large circular disc-like scoring or cutting blades, and a smaller under roller, the material to be cut being put through between the two, on a board, first in one direction, arid then at right angles, so as to divide the paste into squares. The two rollers are independent of each other, and not geared together as in the device in suit; the only function of the lower one being, as a slide, to facilitate the passing through of the board which carries the material. And, as further distinguishing it from the present device, there is no table of any kind, slotted or otherwise, nor is the board flexible, like the plate'or pad specified in the second and third claims. This machine, also, after having been used by Wunderle for a couple of years was thrown aside, his competitors, as he says, getting out a better looking and more salable candy than he could by means of it; and it was sold soon afterwards to the defendants, in whose stockroom it has been stored away ever since, unnoted and unused, until resurrected for the purpose of this suit. Whatever virtue, therefore, it may have originally had, as it stands, it must be. regarded as in the nature of an abandoned experiment, of which no notice need now be taken.
The so-called “chewing-gum machine” — also unpatented — is a stage in. advance of this, but not by any means to the extent of being an
From this review of the prior art, it thus appears, as already stated,' that there was nothing which directly anticipated the present device. No doubt the instrumentalities made use of by the inventor were at hand, cutting machines being found in various arts, with knives, and rollers, and tables or beds, and flexible pads, similarly, if not suggestively, used. But that does not dispose of the one in hand. The combination which is there found is new; and the only question is whether
■ It .is .urged, however, that the patent is invalid, because the machine was in public use. for over two years before the patent was applied for.
The patent being valid, infringement is clear. The defendants manufacture two kinds of machines, the one for hand and the other for steam power. In the hand power machine the duplication beyond question is complete, and so also, in our judgment, is it in the steam power, the exact combination claimed in the patent appearing in both. A distinction is sought to be made in the. latter that the cutting blades and the feed roller, instead of being one larger than the other, as in the Hershey machine, are both of the same size, and are so geared together that the feed roller runs faster, dominating the motion of the material, the other being confined to the single function of cutting, where in the Hershey it is arranged to assist in feeding also. This, as it is claimed, is a material difference; Hershey having gained his patent on the assertion of the frictional contact of blades and pad, by which the latter, is positively moved. No doubt this functional advantage was claimed in argument in the Patent Office, and not a little made of it there. And it was also put into the specifications, where it now appears, before the patent was allowed. But at the most it is merely descriptive of the supposed action of the machine, and not a limitation upon it, to which the inventor committed himself; there being no amendment or restatement of the claims by which the invention was defined. Tt is the mechanical combination there specified which is patented, and not the particular functions or advantages claimed for the different parts; and infringement is not escaped where there is a substantial appropriation of the mechanical construction, even though, by slight variations, unimportant changes in the mode of operation may be made.
The decree is reversed, with directions to reinstate the bill and grant the relief prayed for.