236 F. 731 | 7th Cir. | 1916
(after stating the facts as above). The only serious question presented is that of the validity of the patent. If valid, appellee’s device clearly infringes. It was so found by the District Court. The use of the Z-bar or the T-bar instead of the L-bar, and the location of the sealing pressure between the margins of the door and the inner faces of the marginal staves, do not serve to materially differentiate the two. The patent in suit, in the absence of prior patents or uses anticipating the same, is of a character to meet
While the patent claims a silo, the special feature seems to be the rigid factory-made and portable door-frame. The metal has the advantage over a wood frame in being rigid and not affected by the moisture of the contents of the silo or from the outside. “The angle bars,” says appellant’s counsel, “prevent this [distortion and binding] by furnishing a continuous reinforcement, in contact with the end staves from top to bottom and are capable, in connection with the cross braces B, of receiving and resisting the crushing effect of the staves, which is thus distributed along the length of the angle bars.” The extension and fastening of the ends of the cross-bars to the end staves, it is claimed, afford a cantilever effect which relieves the angle-bar rivets. This feature of the construction is attested by appellant’s salesmen to be a decided improvement upon the art as it theretofore existed.
The Crosby and Haag patents were co-pending with McClure in the Patent Office. On both of them patents were issued prior to McClure upon applications also filed prior to that of McClure. The appellant contends that these two patents were not in the prior art with regard to the McClure patent, because the several patents granted thereon were subsequent to the date of filing his (McClure’s) application.
“3. That, it [the patent] has been patented or disclosed in some printed publication prior to his [the patentee’s] supposed invention or discovery thereof, or more than two years prior to his application for a patent therefor.
“4. That he [the patentee] was not the original and first inventor or discoverer of any material and substantial part of the thing patented — citing Crosby and Haag, with others, as having previously known of said inven*736 tion and every material part thereof, and also as having filed applications and received patents thereon.”
While under defense 3 aforesaid, in order to be considered in the prior art, the patent cited should have been granted prior to the filing of the application of McClure, yet where the fourth defense is set up, the question as to who was the first inventor is squarely raised, and that matter must be determined on its merits. Barnes Sprinkler Co. v. Walworth Mfg. Co., 60 Fed. 605, 9 C. C. A. 154; Sundh Electric Co. v. Rapid Transit Co., 198 Fed. 94, 117 C. C. A. 280. While McClure might have carried his date of invention back to the Crosby and Haag application filing dates, if such were possible, he did not do so. Therefore, Crosby and Haag, having filed their applications prior to McClure’s date, must be deemed to have made their several inventions prior to the time when McClure made his. They are thus in the prior art as to McClure for whatever they disclose. This should, we hold, be limited to such matters as are included in their several claims, unaided by their specifications or by extrinsic evidence except where necessary to elucidate and make the same clear.
The first claim of Haag reads as follows, viz.:
“A silo composed of a series of like staves and having an unobstructed door-opening at one side, the side posts of which are the adjacent staves, a plurality of straight braces extending across the door-opening and having their ends curved to conform to the curvature of the body and bolted thereto, angular lugs secured to the inner faces of said braces and engaging the edges of the staves adjacent the door-opening, hoops having portions extending across the braces and lying thereon, a plurality of door-sections of a width greater than the width of the door-opening and having chamfered end portions adapted to lie directly against the inner faces of the staves adjacent the door-opening, hooks secured to each of said door-sections and adapted to overlie the brace adjacent thereto, and means for clamping the door-sections in the door-opening.”
This substantially describes the invention. The device has no side frame E or other iron section bars. Its metal cross-bars or braces are secured to the staves adjacent to the opening respectively by bolts. Practically all of its bolts or securing devices are anchored in wood and therefore subject to be loosened. The device has no metal seat forks doors. The idea of a rigid door-frame construction is not the object or central idea in the silo construction, and its door-frame is not independent. It does not, in our judgment, anticipate. McClure. That its advent brought no contribution in practical advance to the art may be presumed from the fact that it has always remained negligible in the commerce of the art.
The District Court held the patent in suit invalid, as being anticipated by the Crosby patent. This device employs for the sides of its door-frames continuous sections of metal, Z-shaped in cross sections. One flange of this Z section is fastened or secured to the adjacent stave by a series of bolts passing through the flange and stave. The opposite flange forms the side portion of the door-frame. The rib or web connecting the two, spans the smooth, beveled edge of dhe adjacent stave. The Z sections are connected by steel cross-pieces which do not engage the adjacent staves. By the adjustment of the metal parts a
Claim 2 of Crosby reads as follows:
“A silo having a door-section comprising two metal standards having oppositely-extending- flanges and an intermediate rib, metal cross-pieces comprising cross-flanges secured to the oppositely-extending flanges and having central flanges rabbeted at their ends to fit over said oppositely-extending flanges and against the intermediate ribs thereof at intervals to form door-casings, and doors formed of staves connected by a bar and bound with felt, said doors being fitted behind the front flanges of the standards and having buttons pivoted thereto and provided with end. portions arranged to swing to positions in front of the crosspieces.”
Appellant is entitled to have its patent sustained, infringement thereof and unfair competition found and restrained, and an accounting taken.
The decree of the District Court is reversed, with direction to grant the relief prayed for.