58 F. 784 | 2d Cir. | 1893
This is an appeal from an order of the circuit court of the United States for the district of Connecticut, which,- upon the complainants’ motion, enjoined, pendente lite, the defendant against the infringement of the first and second claims of letters patent No. 329,851, dated November 3, 1885, to Albert H. Overman, for an improved pedal for velocipedes. The order was based upon the adjudication in Manufacturing Co. v. Clark, by the circuit court for. the district of Maryland, which sustained these claims. 46 Fed. 789.
The history of the art at the date of the alleged invention is stated in the specification as follows:
“Heretofore pedals for velocipedes Have "been provided with a single, turning, polygonal bar composed of an envelope of rubber inclosing a skeleton frame bearing at each end upon the spindle of the pedal. Pedals for velocipedes have also been provided with two essentially round and sometimes fluted bars of fluted solid rubber, located upon opposite sides of the working bearing of the pedal, and arranged to bo turned, so that when one portion has become worn another may be exposed for wear.”
The defect, in pedals of the second type, which is corrected hy the pedals described in the first and second claims, is tlms stated:
“While the bars are engaged with the sole of the boot at separated points thereupon, the area of contact upon an essentially round bar is necessarily small; and, the surfaces in contact being in the same horizontal plane, the hoot is prevented from slipping only hy friction, and, this being insufficient to retain it in place, it often slips.”
The full record and numerous exhibits presented hy the defendant show that this description of the state of the art of pedal manufacture at the time of the patented invention is substantially complete, and cannot be amended, if it is understood that the pre-existing double fluted pedals were not merely arranged so as to be capable of turning, but were actually rotary, and free to turn. Pedals are shown in the English patent to Robert James Rae of September 11, 1878, which were double corrugated or fluted rollers, having their upper surfaces turned towards each other. The whole question of patentable invention is thus presented upon the face of the Overman patent, and is whether — single, polygonal, rotary bar pedals, and double, substantially round, but fluted, rotary bar pedals, being old— it was the work of an inventor to substitute the wide working faces or the wide rectangular faces of the bars of the patent for the preexisting round and fluted bars.
The gist of the improvement was to make pedal bars having faces or hearings of sufficient permanent width “to satisfy the leverage required to give the hoot sole complete control over them,” because the old occasionally flat faces did not meet the necessary requirement of width. The advance made by Overman is stated by his expert as strongly and as attractively as it can be to consist
The vital question in this case is presented with approximate accuracy upon the face of the patent, and does not depend upon controverted questions of fact. This court has, therefore, been at liberty, in accordance with its statement of the weight to be given to: a prior adjudication upon an appealed order for a preliminary injunction, (American Paper Pail & Box Co. v. National Folding Box & Paper Co., 2 C. C. A. 165, 51 Fed. 229,) to re-examine the former adjudication, and dispose of the question in accordance with its own convictions.
The order of the circuit court is reversed, with costs.