96 F.2d 145 | 2d Cir. | 1938
This is the usual patent suit for the infringement of two patents issued to Conrad Carlson. The apparatus disclosed in the first, No. 1,776,414, was to hoist cement, mortar, and the like, up and down the outside of buildings in course of construction; it consisted of a single sectional “upright” or mast, alongside of which the hod and its carrier were raised by a hoist; one of the objects was to trip the hod at each window, but that feature is not in controversy here. This suit turns upon the construction of the mast and the guides along which the hod-carrier slid, and upon that of the horizontal braces set at each window to steady the mast. The mast was composed of a series of “stout timbers preferably of rectangular sections and joined end to end” (page 2, lines 32, 33)— Figure 6. On both sides of these timbers, 11, angle irons, 13, 14, acted as a rail for the hod-carrier, being embraced by “keepers,” 53, which the carrier bore and which held it to the mast. The joints of the timbers, 11, were staggered in relation to the joints of the angle irons, 13, 14, so that an iron would extend beyond the end of a timber on each side, thus embracing the end of the next timber. By bolting the protruding ends of the irons to the end of the next timber, the whole mast was made into a single whip-like compression member. In order to stay the mast to the building, braces were run from it into each window — Figure 6. Claim 1 reads as follows: “A hoisting apparatus * * * including a sectional mast * * * guides fastened to said mast serving to hold the sections thereof together * * * braces extending from the mast to one side of said” (window), “openings, and means interposed between
Hod hoists, to be used on the outside of buildings during their erection, had been common before Carlson; they were of various forms. In Maurer, No. 394,781; Harris, No. 710,686; Bathrick, No. 1,009,-037; Levalley, No. 1,168,947; and Reed, No. 1,567,385; the hod-cárrier ran between two masts which were built up as compression members. Murphy, No. 1,650,847, hung his masts from beams anchored in the roof; they were tension members. Murphy and Bathrick stayed their masts to the wall by braces, and Murphy’s braces ran into the window openings where they were fastened almost exactly like Levinstim’s with one exception which we shall consider when we take up the second Carlson patent. Thus, if claim one is to cover Levinstim’s disclosure, it can depend for its novelty only upon the construction of the mast; i.- e., the staggered relation of the timbers, 11, and the angle irons, 13, 14. Assuming for argument thát that would be enough, Levinstim does not infringe unless the means of fastening the braces is within the last element of the only claim in suit, claim 1: “Means interposed between the other side of the” window opening “and said braces.” This plainly refers to the struts, 39, 40, and the defendant’s argument to the contrary is untenable. The specifications (page 3, lines 40-59), leave no doubt as to what these words meant. “The means for retaining the mastholding braces in their assigned positions within the window openings, comprise preferably pairs of struts, 39, 40 * * *. Both struts are forced, as by driving or hammering them into their respective places, so as to preclude said struts from becoming loose.” The “means interposed” between the braces and “the other side of the” window openings cannot refer to the cleats, 33, 34, with their clips, 35, 36, because these are not so disposed, and because other claims, e. g., 8, 9, and 10, contrast them with the struts. To succeed the plaintiff must therefore invoke the doctrine of equivalents, and there is no room for its application. We need not say that a staggered mast was not a novelty sufficient to support the claim as it reads, but, if it is, plainly the advance was a small one; Levalley’s mast with its fish-plates to bind together the joints was very close aboard; Carlson’s claim must be held to the language he chose. We think that the judge was therefore right in holding that'claim one was not infringed.
The second Carlson patent, No. 1,-931,978, was also for a hoisting apparatus much like the first, except that it had two masts, one on each side of the hod-carrier. These were made up in the same way, and the invention, so far as need concern us, lay in the braces and the manner of securing them. These must of course embrace the hod-carrier, and if they were both to run straight through the windows, the width of the hod must be diminished by the width of both braces and carrier. In order therefore to allow for a hod which should more nearly occupy the whole window opening, Carlson in his second patent made his braces wider at their outer ends than where they entered the window, and to do so put bends or offsets in them as they approached the wall. They passed through the window as in the first patent, and each was fastened at both sides of the wall — outside and inside — to beams, 17, 17a, which carried upstanding ears, 22, 22a, which in turn carried bolts, 23, 23a. These bolts passed through slots in the
Decree affirmed.