This suit was instituted by Emma Peckat, owner of the patent in suit and widow of the patentee, Charles Peckat, and Charles Peckat Manufacturing Company, exclusive licensee, for infringement of Patent 2,180,909, issued November 21, 1939, relating to outside sun visors for automobile windshields. The device charged with infringing is manufactured by R. S. B. Manufacturing Company, Inc., and sold by defendant Jacobs. The R. S. B. Company has assumed and is financing the defense.
*796 On October 2, 1946, Rose and Siegal, representatives of R. S. B., entered into a license agreement with the plaintiff manufacturing company, paying in advance the agreed minimum royalty for three months. When no further royalties wеre remitted, plaintiffs, upon inquiry, were advised that R. S. B., had had a fire loss and would appreciate aid in getting started again. Thereupon, plaintiffs excused payment of royalties for one month. As time passed and no further royalties were forthcoming, plaintiffs cancelled the license, April 17, 1947. However, R. S. B., continued manufacturing the device and selling it in Chicago through Jacobs.
The trial. court adopted submitted findings and conclusions that the claims in suit were void but that defendant’s device would infringe if the claims were valid. On this appeal, we are not concerned with any question of infringement, for defendant admits that he is manufacturing the patented device. Our sole question is as to validity.
Sun visors upon automobiles are old. In the earlier years of the automobile, cars were largely of the open touring type, with upright standards supporting the tops. Certain visors, attached to the upright posts or to auxiliary' members attached to and parallel with such posts, were prevalent in those days. Closed cars grew in number, as they came to be less expensive, and their fronts, that is, the windshields, eventually came to be streamlined or slanting.
With the coming of the closed cars, sun visors which had been used on touring cars practically disappeared, largely because of the difficulty encountered in attaching them without drilling holes in the body and in fitting them to automobiles which had become more and more streamlined. Peclcat, an engineer and automobile dealer, became interested in the problem of supplying visors which could be attached without holes in the body of the car or without welding or riveting. His' experiments eventually resulted in a flanged bracket, which is tapered down outwardly and has a concealed wedge-shape member which effects a lost motion connection with the flange bracket and, when wedged into its proper position, clamps the device firmly on the gutter of the automobile without perforating the body or welding the attachment to it. He- found that the tiny gutters at the edge of the windshield frame were, sufficiently rigid and strong to withstand the strain of holding a visor firmly at high speed; that the clamp he devised to adhere to the gutter would not work loose when subjected to the vibration of a moving car; that there was sufficient room to attach a clamping device to grip the opposite upper and lower faces of the gutter so that the gripping parts could be wedged directly against the strongest part of the gutter and thus avoid perforating the gutter or having exposed metal which might cause rusty streaks on the car. In his patent he specified in detail a bracket which successfully solved the problems and resulted in an effective useful practical visor and attachment.
The court found that his patent was anticipated by prior patents and prior uses and, in the alternative, that if the patent is not directly anticipated, it required only the knowledge of a skilled mechanic to conceive the structure described. It found also that the claims in suit are too broad, in that they do not describe the structure with the particularity required by the statute аnd claim more than the patent shows is novel, if there is novelty; that Claim 7 is invalid in that it is functional :in character and describes an inoperative device ; that the commissioner of patents did not comply with the statute, and that the examiner in charge did not properly examine the application. Upon appeal plaintiffs urge that there is no evidence to support the finding of invalidity and that the conclusions of law are erroneous.
In its brief, defendant says Peckat “may have invented something.” He suggests that there may have been novelty in Peckat’s idea of constructing a bracket with a wedging member slidаbly mounted on the interior of a body having a flanged guide along the top for one edge of the wedge to engage there against, and having a flanged lower edge to clamp under the *797 gutter with the opposite side of the flange engaged in the crook of the gutter so that, when it is desired to tighten the device to the gutter, the wedge is driven into wedging engagement with the gutter, and in providing the brackets so that each could separately and independently be secured to the gutters on opposite sides of the windshield. Though expressing doubt that this comprises invention, he assumes, for the sake of argument, that novelty rests in thе structure but that the claims are insufficient.
After careful analysis of the evidence of the prior art, we are convinced that the assumption of the defendant, for the purpose of argument, is a correct assumption as a matter of fact and that Peckat achieved invention. Defendant asserts, however, that the claims are so broad as to cover the prior art and, therefore, cannot be valid as claims for a secondary invention, as distinguished from the prior art.
Claims 1, 2, 6 and 7 are in suit.
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They are preceded by explicit description of and specifications for the device and each refеrs to this specific description and incorporates it. Thereby we think the claims are limited to the specific device described, even though their language, without reference to the specifications, might import a wider field. Thus, in Jones v. Evans, 7 Cir.,
In Standard Oil Co. v. Globe Oil & Refining Co., 7 Cir.,
In Motion Picture Patents Co. v. Universal Film Mfg. Co.,
In Westinghouse v. Boyden Power-Brake Co.,
In Seymour v. Osborne,
In Simonds Rolling-Machine Co. v. Hathorn Mfg. Co. et al., C.C.,
This court, in Duncan et al. v. Stockham, 7 Cir.,
Considering these precedents we think it may be safely said that the specifications and description supply at least two functions; first, they serve to explain and define a claim wherein they are incorporated by reference and, second, they frequently limit the invention of the claim to the device described. They do not serve to chаnge the claim of invention or to make it different from what it actually is; but they do function, as we have said, to explain, if explanation is necessary, what is claimed and to limit it, so that the patentee will not be permitted to claim more than he has actually conceived. So here, where the claims expressly limit the claimed invention to the device specified and described explicitly, with definite limitations, we find nothing to invalidate the claims because their language, if not so limited, would cover too broad a field.
Defendant seems to urge that any claim containing the word “means” is invalid because of Halliburton Oil Well Cementing Co. v. Walker,
We had occasion to discuss each of these two decisions in Minnesota Mining and Mfg. Co. v. International Plastic Corporation, 7 Cir.,
Patentee’s device is unique in that it has a double clamping effect, — first, it grips the gutter, then, to tighten and hold fast the clamp to the gutter, is the crucial element, — a wedge inserted in the part which grips the gutter and which has a wedge- *800 shaped receiving part to receive the clamping wedge. The latter is then forced into a tightfitting position and there fixed in place by screws in the device provided for that purpose, which reinforce the tightness of the wedge. Thereby the clamp gripping the gutter rim is held tightly and firmly because of the efficient wedging. This was a completely new concept of efficiently firmly mounting visors on the windshields of automobiles, without perforating any part of the body with holes for screws or welding or riveting plates to the body. The prior art discloses no such conception; it discloses friction clamps about the upright post of the old open top cаr, but they were tightened merely by screws likely to loosen with vibration. It discloses, also similar friction clamps, likewise tightened by screws, grasping a supplied auxiliary member, parallel to the post of the windshield and affixed thereto; but no prior art included the wedging suggested by the patentee, which eliminated all such parallel parts necessary in the latter named prior art devices.
The same thing is true of the prior art covering luggage carriers and signs placed on top of cars, supported by the gutter running along the edge of the top. In Ellis 175,259 said by defendant to' be typical, the sign holder has a flange which stands in and is suppоrted by the ¡gutter, held in position by clips, tightened by a bolt and wing nut. It seems obvious that the vibration of a car would prevent such attachments from supplying any appreciable degree of utility; and none of them included the essential idea taught by Peckat.
Scott 2,207,227, employs two anchor hooks or claws attached to the top of the door openings in the car and to the visor; they are “of such length that when the provided pivot bolts are tightened, the hooked ends of the two oppositely positioned brackets are pulled towards each other and thus clamped tightly.” The device does not teach at all what Peckat teaches, — clamping onto the gutter without holes, welding or riveting and tightening and making firm the clamp by the essential wedging element.
We have examined other prior patents cited by defendant. The ones mentioned are typical, and our examination convinces us that the additional citations add nothing in the way of art prior to Peckat.
In addition, defendant relies upon the testimony of Scott, by way of deposition, as proof of prior use. Scott is a competitor of both plaintiff and defendant. His memory was admittedly faulty; he was not corroborated by any contemporaneous records or documents, and, all in all, after considering his testimony with care, we think it clear that it does not measure up to the standard set by this court in Cline Electric Mfg. Co. v. Kohler, 7 Cir.,
Irresрective of the questioned sufficiency of Scott’s testimony to establish prior use, it is clear that what he did in no wise taught what Peckat accomplished; that his conception was entirely different from Peckat’s, and that he did not anticipate. In this we are supported by his own testimony that it was clear to him that, because of the way “he attached his device to the car by crow’s feet, he did not infringe Peckat in any way.” “That which infringes, if later, would anticipate, if earlier.” Knapp v. Morss,
All in all, we think it beyond question that Peckat achieved invention. The earlier art. disclosed various devices for attachment of windshields but none of them ever suggested anything like the idea of a clamp efficiently tightened by a wedge to the gutter, resulting in a taut, *801 firm connection without the drilling of holes, without the use of screws, which might be loosened by vibration, and without any of the weakness or defects of the prior art.
That Peckat’s device now seems comparatively simple, of course, is no criterion of his invention. “The apparent simplicity of a new device often leads an inexperienced person to think that it would have occurred to аnyone familiar with the subject; but the decisive answer is that with dozens and perhaps hundreds of others laboring in the same field, it had never occurred to anyone before. The practiced eye of an ordinary mechanic may be sufficiently trusted to see what ought to be apparent to everyone.” Potts v. Creager,
The patent was allowed promptly, endowed, of course, with the presumption of validity. As Mr. Justice Cardozo remarked in Radio Corporation of America v. Radio Laboratories,
Concerning the shades of differences between mere mechanical skill and invention, we said, in Jones v. Evans, 7 Cir.,
Bearing in mind the standards there invoked, let us examine the claims involved in the present case. We must put ourselves in the place of the patentee at the time of his invention. The only plausible explanation offered for disappearance of accessory visors was the difficulty of attachment. Of course, they could have been screwed to the body, or special attаching posts could have been bolted on, as proposed in 1922 by Mueller 1,424,421. For obvious reasons, this unsightly expedient did not catch the purchasing public’s fancy. The problem remained unsolved and the market neglected. National Slug Rejectors v. A. B. T. Mfg. Corp., 7 Cir.,
Findings of fact are not to be upset unless they are clearly erroneous; a court of review will not interfere with them, in the absence of a very obvious showing of error. Graver Tank & Mfg. Co., Inc., v. Linde Air Products Co.,
There was some testimony also upon the subject of prior use. However, it was by way of deposition, so that the trial court had no more opportunity to observe the witnesses than have we, and, as we have noted, that testimony falls far short of the standards required in the establishment of prior usе. Furthermore, as we have pointed out, upon its correct interpretation, it discloses, by the witness’ own statement, that the prior use relied upon employed only the conceptions of the old art and not that of Peckat and included in no wise his concept as embodied in his patent. We have no hesitancy in saying that under those circumstances, the findings as to anticipation and as to prior use are clearly erroneous, having no support in the evidence. Other questions re *803 lating to the validity of the claims as tested by the requirements of the statute are, obviously, questions of law open to review.
Defendant asserts that it is unselfishly guarding the public interest. The provision for the protection of inventions and creations in the Constitution reflected a beneficent purpose to encourage invention and progress. The law provides that the inventor shall have a limited monopoly, as a reward for his industry and acumen. Here Peckat was engaged only in manufacturing his single device; his patent was much more vital to him, as a small business man, than it would have been to an old established and varied automobile parts manufacturer. Little companies, whose costs are usually relatively high, are properly pеrmitted by law to get started and continue unmolested, for a limited time. One who has exactly copied that which is patented, who so strongly asserts that he is acting to protect the public interest in attacking the claims of the patent, brings himself within the category mentioned in Hawkinson Co. v. Dennis, et al., 5 Cir.,
The finding that the patent office failed to perform its statutory duties is supported by no proof. In the absence of evidence to the contrary, it is presumed that an admistrative body has performed its functions properly. Here there is no direct evidence of any dereliction upon the part of the patent office. But defendant argues that, inasmuch as no prior art was cited against Peckat, it follows that no search was made. This, we think, is a non sequitor, for, considering all the prior art produced by defendant, as we have seen, none of it anticipates or teaches what Peckat presented. Under such circumstances there is certainly no presumption that the patent office did not find it. Rather the presumption of regularity of the proceedings prevails.
We have examined all contentions of defendant. We find nothing included in them impinging in any way upon our conclusions.
The judgment is reversed.
Notes
Claim 1: Apparatus of the character described for supporting an awning in ■ the desired position with respect to the windshield оf an automobile having gutters adjacent said windshield, including: a pair of members adapted to be clamped to the gutters on each side of the windshield; and means carried by the members for supporting the awning in said position.
Claim 2: Apparatus of the character described for supporting an awning in the desired position with respect to the windshield of an automobile having guttei’s adjacent said windshield, including: a pair of members adapted to be clamped to the gutters on each side of the windshield and to make supporting engagement with the back end of the awning; and means for adjustably supporting the front end оf the awning.
Claim 6; A member of the character described adapted to provide support for the front and back ends of an awning to maintain it in a desired position with respect to the windshield of an automobile having gutters adjacent said windshield, including: a body portion; and edge portion adapted to conform to one side of a portion of one of said gutters; and means mounted on the body portion adapted to engage the other side of the gutter to grip it between the edge portion and the last mentioned means.
Claim 7: Apparatus of the character claimed in claim wherein the last mentioned means in so constructed and arranged as to be driven into wedging engagement with the gutter.