249 F. 56 | 6th Cir. | 1918
This is an appeal by defendant in a patent infringement suit, and involves only claims 2 and 17 of the Clemons patent, No. 924,966, issued June 15, 1909. The District Court held both claims valid and infringed.
The patent is for a road-grading machine, whose mechanism may be described by reference to a reduced reproduction of Fig: 1 of the patent drawings.
The scraper blade 2 is carried on a frame supported by rear wheels 1 and a forward wheel 23, which is pivotally connected to the front end of a beam 26, which beam is connected between its ends to the reinforcing flange 11 on the upper edge of the scraper blade, its real end being pivotally connected at 21 to the draw bar 15. The latter is held in desired position by a latch 31, engaging one of the perforations in the curved bar 19. A release of the latch by the driver’s foot enables the shifting of the line of draft. As the beam 26 is always at right angles with the scraper blade, and as the draw bar always remains in the line of draft, its adjustment with respect to the latch bar changes the angle of the scraper blade with reference to the line of draft, and so sets the blade at right angles with that line or obliquely thereto, thus enabling the scraping of the road from either side to the center or on a level. The wheels 1 are journaled on crank axles lh which in turn are journaled on swinging brackets 3 pivoted at their forward ends to flanges on the scraper blade and at their rear ends to an alignment bar 5; links 7 on the crank axle connect with the lower arms 8 of operating levers (not shown in the drawing), by which the scraper
Whether defendant infringes depends upon the validity and scope of these claims.
Clemons was not a pioneer in the road grader art; nearly every important feature of his device was old when he entered the field. Mendenhall (to go no further) had disclosed a machine by which (as shown in reduced Fig. 2 of the patent drawings — a plan view)—
the scraper blade H is pivotally hung beneath longitudinal side beams G, carried by side rods F, the blade being retained in the desired position by rods V attached at one end to the side beams and at the other end to perforated metal plates R
The differences between Clemons and Mendenhall, so far as here important, are these: The connection between Mendenhall’s wheels, side beams and drawbar is such that the wheels must always move with the side beams, and thus with the drawbar; the turning of the draw-bar automatically turns the wheels, which must thus always maintain practical parallelism with the drawbar. In Clemons, however, the arrangement is such that the wheel brackets move independently of both beam and bar, and the wheels need not thus be constantly held parallel with tire line of draft; they are capable of being held in the desired position with respect to beam and drawbar through the alignment bar and the stop collars thereon. We agree with the Circuit Court of Appeals for the Eighth Circuit, that the Clemons patent shows invention over Mendenhall (Stockland v. Russell Co., 222 Fed. 906, 138 C. C. A. 386), but this invention we think resides only, so far as the claims here in issue are concerned, in the positive means for holding, where set, the independently moving and adjustable rear wheel brackets.
We are not impressed with plaintiff’s contention that Mendenhall’s disclosure is shown to be impracticable, nor by the suggestion that he bad in mind only a road scraper, as distinguished from a road grader. His device was reasonably adapted for the latter purpose, though not as well adapted as that of Clemons. While Mendenhall showed no front wheel, there was nothing new in providing one.
Defendant’s structure, as illustrated by the subjoined cut, may be thus compared with the device of the patent.
The scraper blade, as in the Clemons patent, is carried on a frame supported by rear and forward wheels; there is, however, no beam as distinguished from the drawbar; the unitary bar which takes the
We think it clear that the alignment. bar 5, the stop collars 6 and the locking pins 33 are the “means” specified in the claims in suit respectively for “holding said swinging brackets where set” and for “holding the said crank axles for parallel lateral swinging movements.” The alignment bar alone is not the means. Defendant has not this holding element, unless, as plaintiff contends, the term “means” should be construed broadly enough to include the pivoting of the alignment bar directly upon the drawbar. But this we think not permissible, for the alignment bar I of Mendenhall was, in effect, so pivoted through its connection with the cross bar B, which was itself directly pivoted upon the drawbar, thus establishing a permanent connection .between wheel brackets and drawbar. Indeed, in defendant’s structure there is wholly lacking the idea of a mechanically adjustable connection between wheel brackets and drawbar, to meet changes of draft angle. The adjustment is automatic, as in Mendenhall. This difference is, we think, controlling.
The fact that the machine of the patent can be operated without the use of the stop collars on the alignment bar, so long as the angle of' draft is unchanged, and is thus capable of a limited automatic movement, is not highly important; it has at all times the adjustable feature and positive holding means referred to, and such adjustment and holding means are necessarily used whenever the angle of draft is changed, and these holding means constitute an essential element of the claims in issue. Nor is it controlling, as respects the question of infringement of the claims in suit, that when the drawbar of the device of the patent is locked to its latch bar, the stop collars loose on the alignment bar and the scraper blade raised clear of the ground, a forward movement of the machine will cause the wheels to line up parallel with the drawbar. It is also immaterial, as respects the question of infringement, that in plaintiff’s commercial machine, apparently manufactured as to some features under another patent than the one involved on this- appeal, the stop collars are omitted and the alignment bar pivoted directly upon the drawbar.
We conclude that defendant does not infringe the claims in suit.
The decree of the District Court is reversed, and the cause remanded, with directions to enter decree dismissing the bill.
