272 F. 23 | 6th Cir. | 1921
The bill of complaint filed in the District Court of the United States for the Southern District of Ohio, Western Division, charges infringement by the Edwards Manufacturing Company of claim 6 of the Wertz Patent, No. 926,308, June 29, 1909, and of the single claim of the Clark patent, No. 991,956, May 9, 1911. Both patents relate to toy pistol construction. The District Court entered a decree finding claim 6 of the Wertz patent valid and infringed; that the claim of the Clark patent was not infringed by the defendant’s construction, and for that reason did not pass upon the validity of that patent. The defendant appealed from that portion of the decree finding claim 6 of the Wertz patent valid and infringed, and the plaintiff filed a cross-appeal from that portion of the decree finding that defendant’s construction did not infringe the Clark patent.
Claim 6 of-the Wertz patent reads as follows:
“0. A toy pistol, comprising a magazine adapted to receive an explosive tape therein, a spring for guiding the tape, a trigger, a hammer on the trigger, and a spring on the hammer adapted to engage the tape, for feeding it in the path of the hammer, as the hammer is actuated preparatory to striking the tape.” : '
It is not seriously contended by the' defendant that this claim of the Wertz patent is invalid. On th'e contrary, it is claimed that, in view of the prior art and the Patent Office proceedings preliminary to its issue, it is not entitled to the liberal construction of a generic invention,- dominating the broad combination ;of a guide spring with, any means for feeding the ammunition tape, so as to include within the range of equivalents defendant’s wholly different construction.
“In tlxe nomenclature of the art, the part which strikes the cap, cartridge, or firing pin is known as the hammer; that which is manipulated by the finger, to discharge the gun or pistol, as the trigger; the spring which actuates the hammer as the mainspring; and the part 6, on which the cap of fulminate is exploded, as the anvil.”
The applicant, in pursuance of this suggestion, amended claim 6 in conformity therewith, designating the part to which the feed spring was attached as the hammer, instead of the trigger. Appellant’s construction has the separate trigger and hammer, and, in order to make this a vital distinction, it now contends that this amendment of the Wertz claim constituted an estoppel limitation, both in intent and effect, and that irrespective of intent or effect of this amendment, in view of the prior art, the claim cannot be lawfully extended to embrace defendant’s device, which discloses a different principle of construction, mode of operation, and specific result.
In the form shown by Wertz the trigger and hammer are one piece, pivotally operating upon a fulcrum. The feed spring was inserted in a recess in the part above the fulcrum, which part of the single piece hammer and trigger the Patent Office insisted should be designated as the hammer, notwithstanding it was integral with the part below the fulcrum, which the Patent Office required to be designated as the trigger. To meet this requirement, the applicant substituted the words “spring on the hammer” for the words “spring on the trigger.” It is apparent, therefore, that this amendment of claim 6 did not involve any surrender whatever of the claim as first stated, but rather a mere change in the terms used to designate parts of the construction to conform to the nomenclature of the art, and therefore cannot be construed as an estoppel limitation either in intent or effect. National Tube Co. v. Mark, 216 Fed. 507, 522, 133 C. C. A. 13; Frey v. Marvel Co., 236 Fed. 916. 921, 922, 150 C. C. A. 178.
It appears from the evidence of plaintiff’s expert that the feature which differentiates the improvement covered by claim 6 of the Wertz patent from the prior art centers about the tape-holding and tape-feeding springs, which co-operate to control the tape and effect a uniform, regular feeding movement, and which also co-operate to prevent backfire. It is unnecessary to review the prior patent art further than to say that these two elements co-opcrating to produce these results are not found therein.
Nor is it important that this coil spring and pawl which constitute the feeding element in the defendant’s construction, and which correspond to the flat spring-which constitutes the feeding element in the Wertz patent, engages with the trigger, instead of the hammer. In order to produce the desired result, this feeding element in either construction must engage with one or the other of the moving parts, which in turn communicates motion to it. In the Wertz patent the only moving part is the one-piece trigger and hammer rotating on a pivot or fulcrum, the ends moving in opposite directions when the force of the operator’s finger is applied to the trigger end, and reversing this movement when that force is removed and the mainspring permitted to function.
In Clark and in defendant’s 'construction the trigger and hammer are separate parts, but, as suggested by the Patent Office, “whether formed together or separately, the purpose and function of the hammer and trigger remain the same.” It is therefore obviously a mere matter of choice of arrangement as to which of these two moving parts shall be selected to communicate motion to the tape-feeding device. It would be idle to say that the fundamental function of this tape-feeding device is changed or altered in any respect by reason of the fact that in one arrangement it is attached to the hammer and in the other it is attached to the trigger. In the last analysis the real question is whether one device is the equivalent of the other.
Clark differs from Adams, in that he uses but one bevel, which is located on the shoulder of the hammer. The upper end of the trigger comes in contact with this shoulder, so that, when the lower end of the trigger is pulled rearwardly, the upper end moves the hammer forward until the trigger passes under it, and the hammer is thrown against the anvil by the action of the mainspring. The trigger is also provided with a spring coiled about its pivot, which spring, when the trigger end is released, will cause the trigger to move backward, the inner side of the upper end sliding over the bevel side of the hammer shoulder to its original position before firing. To compensate for the absence of the second bevel in Adams, the trigger in Clark is loosely connected upon its axis.
Whether the loose connection of -this trigger as a substitute for the second bevel in Adams is such an advance over the prior art as to amount to invention, it is not necessary at this time to decide, for the reason that the defendant’s construction differs from both Clark and Adams, in that the projection on the lower end of the hammer member engages with the shoulder on the lower end of the.trigger member. When the trigger is pulled rearwardly, the engaging end of the hammer moves backward with the trigger until it passes the shoulder, and is then raised by a bevel on the trigger directly back of this shoulder to the plane of the outer surface of the shoulder itself. This permits the escape of the hammer member, which is then thrown by the action of the mainspring forcibly against the anvil.
The sole function of the bevel on the trigger to the rear of the shoulder is to permit the escape of the hammer member to the plane of the outer' surface of the shoulder itself. Unlike the bevels in Clark and Adams, it performs no duty whatever in the return of the trigger to operative engagement. On the contrary, the lower end of the ham
For the reasons above stated, the judgment of the District Court, finding claim 6 of the Wertz patent valid and infringed, and further finding that defendant’s construction does not infringe the Clark patent, is affirmed.