No. 2517 | 6th Cir. | Feb 2, 1915
Suit for infringement of United States patent No. 777,488, December 13, 1904, to Rhodes. The District Court held the patent valid and infringed, and entered the usual decree for interlocutory injunction and accounting. This appeal is from that decree.
The patent relates to improvements in fish baits or lures. The stated object of the invention specially pertinent here is “to provide, in a fish bait or lure, an improved means of securing the hooks in position.” Figures 1 and 2 of the patent ■ drawings are reproduced herewith; figure 1 being slightly reduced.
The specification, following the statement that the improved bait is preferably shaped like a minnow and may be suitably painted or decorated as desired, thus describes in part the construction:
“Arranged longitudinally through the body portion A, which is secured thereto, is a rod B. The front end of the rod B is formed into a loop for convenience in attaching the line. The tail or trailing hook F is secured to the rear end of the rod B. Transverse openings A' are formed through the body, one for each pair of hooks which it is desired the body shall carry. These openings are provided with suitable metal socket-rings, as clearly appears in Fig. 2. A split ring a is provided for each pair of hooks. (See Fig. 2.) By this means the hooks are detachably secured) in position and may be readily changed as desired or in case one should become broken may be readily renewed. The shanks of the hooks rest on the edges of the holes or sockets, so that the points of the hooks are supported out from the body in position to receive the strike of the fish. They are also supported so that the body of the minnow is not abraded by the friction of the hook points against the same.”
The claims here involved are Nos. 8, 9, and 10, and are printed in the margin.
A bait in the form of a minnow was old in the art; indeed, the claims in issue do not include the form of the bait. It was old to have hooks arranged on opposite, sides of a minnow bait; these oppositely arranged sets of hooks were sometimes stapled on, .as in complainant’s “Kazoo” bait, were sometimes attached to the outer ends of transverse wires running through the body of the minnow, the hooks being attached to loops formed in the ends of the transverse wire, as in defendant’s “Trory,” “Muskallonge” and “Yellow Jacket” baits; and sometimes attached by screw eyes in metal-lined sockets, as in the “Heddon” minnow. It was also old to use a rod extending longitudinally through the minnow, for attaching a line to the front end and hooks at the rear end, as in defendant’s “Trory,” “Muskallonge” and “Yellow Jacket” baits. In some cases this central wire passed through a loop in the transverse wires, as in the “Gaide” and “Pflue-ger” baits. It was also old to use a split ring for attaching the hooks, as in Duke’s patent (1899), to the body of the bait, and, in at least two of the Allcock patents, to the rear end of the fenood, which passed slidably and longitudinally through the bait.
In two of the Allcock devices for example, which are as close references as any in defendant’s favor, the split ring at the rear end of the snood to which the hooks are attached moves slidably in a longitudinal opening extending from the tail end of the bait body nearly to the fins. While a given section of this opening, if such may be imagined, might be said to be transverse to the body of the bait, it is clear that the entire opening is not the transverse opening of the Rhodes patent. This Allcock opening is aptly described in the Millward and Gregory patent as “two longitudinal slots, one in the upper and the other in the lower side of the said body, the said slots extending from the tail erd to near the vanes or fins of the body.” Nor does the split ring of the Allcock devices operate transversely of the opening; it moves only longitudinally therein; and it is at least open to doubt whether the snood of the Allcock device is the equivalent of the longitudinal wire of the Rhodes patent.
Claim 9 contains no reference to the method of securing the hook to the longitudinal rod; but if we have correctly concluded that the openings filled by the transverse wires of Gaide and Pfiueger and of the Trory, Muskallonge and Yellow Jacket baits, the longitudinal slots of the Devon bait, and the sockets of Heddon, are not the transverse openings of the Rhodes patent, the combination of claim 9 does not impress us as so clearly found in the prior art as to justify declaring the claim invalid as being too broad. The question is not a practical one here; and, for the purposes of this case, we do not feel justified in holding the claim invalid.
Turning to the question of infringement: Fred D. Rhodes, the inventor, applied for a patent in November, 1903. His uncle, J. B. Rhodes, who was a practical business man as well as an expert fisherman, was attracted by the device and arranged to take an interest with his nephew in the manufacture. A few samples (just how many does not definitely appear) were manufactured strictly according to’
In 1907 or 1908, while complainant or its immediate predecessor were actively manufacturing and marketing the device, the defendant, with knowledge of this fact and of the Rhodes patent, began, and has ever since continued, to manufacture practically an exact copy in all substantial respects of the bait as manufactured by J. B. Rhodes and his successors, including complainant; and its superintendent and vice president applied for and obtained a patent (which was assigned to defendant), one claim of which, as allowed, covered the transverse openings and line-attaching threaded rod screwed into the body of the bait, and the method of connection thereto by means of split links, being the substantial and distinguishing features of complainant’s commercial structure. It is conceded that -the applicant did not invent the device in question, and the only explanation for the action taken is the suggestion of counsel that the claim, which was introduced by way of amendment by applicant’s attorney (not defendant’s counsel in this case), is not shown to have been allowed with the applicant’s knowledge. The record is silent on this subject. Disclaimer as to the claim in question was filed by defendant in the Patent Office, but not until four years after the patent was allowed, nor until after this appeal was filed in this court.
If complainant’s commercial structure is within the Rhodes patent, it is clear that defendant’s structure infringes. But defendant insists that the invention of the Rhodes patent was impracticable and discarded, and that the structural changes made by J. B. Rhodes involved a substantial departure from the patent, and so are not covered by the claims in suit. In this connection it is urged that the- theory of
In our judgment, the District Court reached the proper conclusion ; and its decree is accordingly affirmed, with costs..
“8. In a bait or lure, the combination of a body having a transverse opening therethrough; a rod arranged transversely through said opening; a split
“9. In a bait or lure, the combination of a body having a transverse opening therethrough; a rod arranged transversely through said opening; and a hook secured thereto.
“10. In a bait or lure, the combination of a body having a transverse opening therethrough; a rod arranged transversely through said opening; a split ring on said rod arranged in said opening; and a suitable hook on said ring, for the purpose specified.”