*1 there dividing travel- was no least (at truck was center line gasoline line The truck.” traffic; for none is shown) the street that au control right side on always tomobile keep the 10-foot drivers do to the and within not south-bound traffic space reasons, right, frequently center and the for various plaintiff's car between all, many was and times without reason at drive the automobile Here the street. up- partially, road. with the car altogether, if not wrong on side partially left; that circum- was under these Michigan statute such No statute as he, adult, passed stances if an had behind Case. Noakes involved parked car to within 20 inches neg- contributory upon By its instruction center of looking the road jury ligence the court took such right, have constituted conduct would facts contrib- question under these whether contributory negligence. existed, left them utory negligence I think therefore boy possessed that the instruction only determine whether with reference an adult situated as was capacity to understand mental sufficient boy pertinent light was the the because extent of threw appreciate the existence succeeding touching instructions danger be avoided. degree expected of care to im- of an obligatory made instruction The youth. mature I do think that the ex- conclude, that find if it should jury complained cerpt car- was calculated to experience age, boy, reason impression ry the that believed the court given, was education, warnings boy contributory negli- guilty anas negligence same with the chargeable gence. my viewpoint, From the determina- contributory guilty of adult, he was that entirely question tion jury upon was left to the of that law. matter of as a negligence its consideration the facts. preju- was the error this record Under dicial. District Court judgment of remanded. the cause reversed (dissenting).
HICKS, Judge Circuit I opinion. join in the I unable ,to. am UNIT- CO. v. FIRESTONE TIRE RUBBER & complained of the instruction do not think ED CO. STATES RUBBER rule general states the prejudicial. was stepping into a pedestrians applicable to v. FIRE- UNITED STATES RUBBER CO. parked car. Stand- highway from behind & CO. STONE TIRE RUBBER Noakes, Ky. v. ard Oil 897, Nos. 6918. adopts opinion 6). (C. C. A. young Blodgett had been Appeals, Sixth if that view Court of Circuit. Circuit guilty adult, been not have would Oct. 1935. failing to soon- contributory negligence Rehearing Denied Dec. he could not be right because er look ap- anticipate driver would that the held to road in vio- upon the side of the proach left Michigan statute. lation hand, if the I think that Upon other adult, he been an would injured person had knowledge that charged with have been unconditionally apply does statute
the to drivers highways, appli- all highways of-sufficient is limited to cation judg- if in not even to those width impracticable prudent driver it ment half; right that there is to travel vehicles; for motor no standard width ordinarily passenger wider than trucks trucks are ears and some wider than others; strip, usually that the tarvia trayeled way distinguished from the gravel edges, wide; feet *2 Ohio, Cleveland, Denison, Arthur Akron, Ely, (Frank and Albert L. Ohio Cleveland, Ohio, Richey, O.
brief), for
Tire &
Co.
Firestone
Rubber
*3
Clark,
City
Merrell E.
York
New
(Newton
Burgess
Se-
and E. Clarkson
ward,
Fay,.
City,
both of
York
New
and
Cleveland, Ohio,
Fay,&
Oberlin
on
brief),
for United States
Co.
Rubber
MOORMAN, HICKS,
Before
and SI-
MONS,
Judges.
Circuit
SIMONS,
Judge.
Circuit
The suit
infringement
below was for
of each
group
certain
the claims
patents,
together
seven
which
are claimed
to dominate and control the so-called drum
process of building
casings
the outer
of au-
plaintiff prevailed
(cid:127)tomobile tires. The
many
validity
its contentions as to
'and'
others,
infringement,
failed in
both
but
and
litigants
appealed;
being
ap-
have
Firestone,
peal of the defendant
and 6918
being
cross-appeal
plaintiff
Unit-
Company.
patents
ed States Rubber
involved,
Suit,
the claims in
and
results
below, follow:
1,374,505,
Hopkinson,
April 12,
No.
1921.
2, 9,
16, 18, 23,
15,
27; all held
Claims
and
infringed.
valid and
Gammeter,
1,480,719,
15,.
January
No.
1, 2, 17, 18,
19;
Claims
and
all held
1924.
infringed.
valid
1924.,
Abbott,
1,507,563,
September
No.
11, 23,
Apparatus claims
held valid
1, 2, 6, 7,
infringed.
Process claims
held
and 32
invalid.
Sloper process patent,
1,372,567,
No.
2, 3,
4;
March
1921.
held
Claims
not infringed.’
valid
patent,
1,487,033,
Sloper apparatus
No.
1, 2, 3, 4, 6, 7,
March
1924. Claims
14;
infringed.
all held valid but not
1,607,266,
Lough, No.
November
3;
infringed.
Claim
held valid
reissue,
17,618,
No.
March
13, 14, 15, 16,
1930. Claims
25;
21, 24, and
all held invalid.
1,374,505,
Hopkinson patent,
claimed
be basic
relation to the
tires,
building
present method of
automobile
(save Lough) Being either for
the others
apparatus by
or for
improvements therein
commercially
practiced
now
industry.
cas-
Hopkinson,
automobile tire
Prior
ings had been fashioned
what is called.
product,
more
and desirable
standardized
process. The usual
the core
claimed
permit
process.
a de-
to be due
opinion
to this
of an
will not
limits
‘
method
description of
earlier
this
tailed
While
disclosed
say
making. Perhaps
is sufficient
process
apparatus,
both
never
latter
casing or car-
core
use,
came into
commercial
plies
cass,
consisting of
number
Revolutionary
claims are alone in suit.
ef-
rubber, a
impregnated with
bias-cut fabric
fect
industry
is asserted for these
tread,
open mesh
tough
rubber
claims,
evidenced
adoption
universal
cushion,
strip, and
soft rubber
breaker
process by
lire makers and an ac-
shaped
up upon
metal core
was built
knowledgment
validity by
acceptance
cavity of
corresponding
the finished
part
nearly
licenses
all manu-
*4
revolved,
the
the fabric
tire. As
core was
facturers other than the defendant. The
tread,
its
near
followed
contour at and
the
anticipation by prior
defenses are
disclo-
portions
to
but the
of the band which were
practices,
noninfringement.
sures and
and
portions of the
constitute the side and bead
suit,
f
O
claims in
the
and IS cover
being longer circumferentially, required
tire
generally
the drum
building
the
stitching
of
by
a
down
means
wheels
band;
of
pulley
the
specify
16 and 18
the
smoothly
disks so as to adhere
to the sides
pressure
use of internal
fluid
shaping
of the core.
Inextensible bead wires were
band;
pulley
the
and 23 and 27 extend to
applied
position
edges
in their final
the narrowing
pulley
of the
shap-
band in
them,
plies
of
like-
the fabric
folded around
ing to allow for its
expan-
circumferential
by
of
wire
the use
suitable stitchers.
sion.
sufficiently
Claim is
illustrative of
substantially
tire in
ultimate form was
its
group
claims,
the first
of
printed
and is
core,
then removed from the
which could
margin.1
the
similar,
Claim
except
9 is
ready
collapsed
purpose,
for the
and was
step
that it adds the
applying
of
the tread
step
final
of
for the
vulcanization.
building
band,
rubber in the
of the
and
produced
conceded that
core
ex-
steps
claim IS adds the
of applying the
tires,
tremely satisfactory and durable
but
cushion and the breaker strip.
required
operators,
asserted that
it
skilled
expensive.
and was tedious and
Generally speaking, all of the
claims
issue cover
a method for making
What
to have
a tire
con-
casing by
building
first
industry
tributed to
is a method of
its elements into
pulley band form and
winding multiple plies
upon
shaping
of
then
tire fabric
to tire
by distending
form
corresponding
a flat
of
diameter
band at
drum a
to
its center
bringing
and
tire,
edges
the bead or
toward each
smallest diameter of the
other.
aspect,
In its
cushion,
tread,
extravagant
broader
applying
strip,
breaker
are made
originality
for the
up-
and side walls to
and
this fabric while still
inventive
genius displayed
dram,
achieving
thereby producing
Hopkin
on the
complete
a
son
form,
fire
result.
modern
“pulley
structure in flat
automobile tire is
band”
heavy,
construction,
of
stiff
converting
and thereafter
and to the
the band into
un
a
shaped
shaping
initiated
of
rupturing
heavy
torus
tire without
barrel-
pulley
like
tearing
away
carcass or
band which results
from the
super-imposing
many
shaping
layers
from the beads. The
done
rubber
distending
portion
other,
ized
pulley
the tread
fabric one
adding
simultaneously
strip,
rubber,
moving
band and
breaker
cushion
heavy
the bead
and
rubber,
portions
impos-
applying
toward each other
tread
inextensible wire
ing any appreciable
beads,
stress
the cord
then
this cumbersome
elements
form
pressure
fabric. While held in this structure
tire
fluid
position,
materials,
injury
distended
either
mechanical or without
would seem
pressure,
glance
highly significant
fluid
the tire carcass is then
at first
vul-
advance
Saving
material,
canized.
building, especially
labor and
the art
tire
when
making
distending
1 2. In the method of
cas
vulcanization
tire
the central
ing
steps
portion
edge portions
super
causing
for motor
vehicles the
plurality
posing
previously
formed
move toward
each other
and in such
strips
plane
form an
to turn from
rubberized fabric to
un
movement
multi-ply pulley
pulley
substantially
position
with its
band
vulcanized
band
final
substantially
edge portions
plane
substantially
right angles
plane
in the
at
to said
pulley band, applying
extending
toward
the center
edge portions, giv
casing,
maintaining
member
each of said
while
the order of the
finally
vulcanizing.
plies,
form
tire
before
tire,
apparently
lighter
tire,
than
light of evidence
the automobile
viewed in the
although
the meth-
acceptance of
the earliest
tires were
automobile
indicating general
undoubtedly
lighter
in all
industry.
in this as
construction
But
od
present
scope
motorcycle
of a
the au-
tires. Some of
invention
cases where
determined,
makers,
chang-
nec-
tomobile tire
later
becomes
whatever
is to be
standpoint
may
corporate or-
place
of es
have taken
essary
ascertain from
ganization
style,
precise
evolved from
art
have
particular
one skilled in a
bicycle
industry, notably the
v. earlier
tire
by the inventor
advance made
[Adams
Co.,
very plaintiff herein,
fact
common
Mfg.
Iron
&
Galion
Works
Indeed,
knowledge
more
prior
art
note.
6)],
C. A.
dependence
industry,
of a
gradual evolution
the rubber
often discloses the
present
phase,
motor
concept
springing fully matured
vehicle
than its
knowledge
experience gained in a bi-
genius.
from the brow of
era,
cycle
judicial
has received substantial
the first
wind
recognition.
Thropp’s
v.
E.
Sons’ Co.
John
flatly upon
of a core
fabrics
a drum instead
320, 324, 44
Seiberling, 264 U.
S. Ct.
S.
pneu-
casings for
in the manufacture of
708;
Republic
68 L. Ed.
Rubber Co.
Doughty,
building
matic tires.
7);A.
& Tire
material attention called the of the Board respect steps ent was to in far Doughty so invention, proceedings Examiners in interference no of is not and amount considered pending. unnecessary It then is to detail acceptance for his commercial of history Hopkinson appli of spark the entire the genius. the it with will vitalize cation, except say stage to that at one success, clearly even if estab Commercial Board lished, the discussion the concluded that controlling, Paramount not he proposed amendments to Corporation Tri-Ergon certain the claims American Publix degroe Oase, in the some same learned from su demand follow the Smith great gasoline pra, increase in curve. that the accepted plaintiff years from Goodrich came a before and demand few right grant gasoline to sublicenses exclusive little doubt that tire we have patents. and other Tew the under disparity o! them iacie prima presented even clear between claims (cid:127)did not given granted. fifteen those was then Tew. The inventor the refer- overcome days which to within When we examine the defendant’s amend- ence, propose to still further process it seems to us clear it followed retaining members “the stating that ments the Tew rather than the disclo pulley face the outer placed on the sure. The pulley defendant built its band adopt the Hopkinson elected to band.” drum, turning edges shouldered amending recommendation second downward rather building than them in limitation add thereto to plane pulley band, applied substantially in the edge portions “with its retaining edg members to the down turned band, applying re- pulley plane es. The thought master this but a color- edge por- each of said taining member departure- able assump from Tew on an tions,” this limitation further tion that the retaining defendant’s member in step, “and such movement one-tenth of an plane inch below the pulley band plane turn pulley band. Notwithstanding some substantially at substantially position final ambiguous concession part on the the. plane.” pressing the In right angles to said defendant’s expert, we think this is inac the amended argument the allowance curate. The drum shoulder is one-half urged: claims, Hopkinson “Te.w’s depth, inch in one-quar beads are spinning difficulties of all involves ter inch in vertical section. The wire edge his constructions forming down and below, entirely plane pulley of the band. method inherent the old which are But even if the assumption correct, core. Tew does have building on a determining departure patent from the Dykes Hopkinson or advantage of art, teachings adherence to the prior tire from a starting formation purpose think and function are more decision of mulli-ply pulley band.” persuasive dimensions, especially when allowing the amended claims che Board precisely one has so limited his explained, “Each of presented, it was then prior avoid art. shoulder formed theproc- proposed differentiates counts turning edges down the of the defendant’s Hopkinson from Dykes esses of served, pulley us, band it seems pur two provides edges Tew poses, each provided substantial. stop retaining pulley band which the positioning wire, plane applied lie in the members necessity avoided the of collapsing the drum band, e., cylindrical i. wall in order that might members and not an offset formed put place. purposes Both were therefrom as in the to Tew. As by Tew, achieved the defendant. fully Tew, apparently first disclose It is the rule that: “Where the claim de making casing for motor ve- form, fines an element terms of its ma supei posing previously formed hicles *8 terial, function, thereby location or appar pulley layers fabric into a of rubberized ently express creating limitation, where expanding tire form and and to vul- band pertains limitation to the inventive have it nec- canizing, seems to considered step environment, rather than to its mere apply retaining members in essary the in- to imports and it where a substantial function edges, prepared not to we are hold turned patentee which the considered impor process modification Tew’s the invention, tance to his the court cannot Hopkinson may Dykes be said which and permitted say forms, to that other which one.” IIop- made was an obvious to have the equivalent inventor thus declared not to allowed, accepted these claims as kinson invention, what he claimed as are never principles familiar we think and under is theless to be equivalent.” treated as City Magic them. v. Ken- bv Smith bound D’Arcy Spring Co. v. Marshall Ventilated 784, 291, Club, 282 51 S. nel U. S. Ct. 75 L. Co., supra, recently Mattress ap cited and 707; D’Arcy Spring Co. v. Marshall Ed. proved Hollingshead in R. M. Co. v. Bas Co., Mattress 259 F. 240 Ventilated Mfg, Co., sick F.(2d) 73 (C. 548 C. ; Directoplate Corporation 6) (C. C. A. v. 6).A. Lithographing 51 F.(2d) Donaldson Pulley 6);A. Dillon is still 199 C. Co. There to considered the added McEachran, 144 accepted 6).A. limitation whereby arguments edges Patent Office do not the pulley While cre- in his bead the they aid estoppel, apprehending often band caused to shaping ate were turn in from elasticity the tire posi- perhaps art as of rub- final band to pulley plane of the very capability the ber itself. It was this angles substantially right at tion defendant contraction the line that made by the width urged It is plane. said early winding practices core of the art turn. We not so edges its bead do commercially either successful. As was said inability to understand confess espe- long Hopkinson, this point, court before and this argument evidence early respect patents discussion of as as this issued the claims cially as we think pri- and building, 1909: “In tire it is necessary result a describe marily part strip the central is process. in the which step step rather than shaping thus stretched at- longitudinally as it is from the inevitable seems us core, tached to leaving de- tread Hopkinson and operation of both portions side or wings projecting it free. turn as would and for the beads to fendant Upon principle, por- the same thought if these side Tew Tew had been in have of laterally, are way they of tions then stretched will disadvantage and disclosed whereby and, step longitudinally, shrink if this stretch- preliminary avoiding ing is position progressive be- done measure as the placed in final the beads were edges approached, are longitudinal shaping. fore shrinking greatest edge.” will be at our atten- centered far have thus Firestone Seiberling, Tire & Rubber Co. v. and on claims primarily tion supra. shap- steps disclose Claims and ap- by the form pulley band to tire ing plication Having analyzed steps the several inside pressure fluid process, in novelty their considered finally vulcanizing. There thereof, and it, lack and de whether claims, and specific in nothing more note invention or bring about an inventive not, Tew, who they differentiate do combination, prepared deny we are not plurality of from a pulley band forms a also validity 2, 9, to claims but conceiv shape it to tire plies brings precise them to be limited ad thereof. applied the inside pressure fluid The art, light prior made in the vance uses and that claims master concluded disclosures, and with limita Tew, was over- over 18 were invalid imposed by by tions therein the Patent Office court, the claims found by the ruled inventor, accepted we con prior to allowed were claims valid. These reject strained to the broad construction Tew, consequence of which the issue for, narrowed, and so find them contended validity presumption of nois such there us of the ne infringed. This relieves had Tew existed have favor as would their Dykes cessity discussing anticipa with the in accord cited. We been master, tion, ruling upon interesting either the invalid. find claims question question of of law or the difficult proofs ’bearing upon raised fact over the limitation substantial Dykes’ practice diligence of reduction appears in already discussed pursuit application. of his Claims re- recital that as a 27 is the 23 and indicated, for reasons into shaping of the sult tire form there hold invalid. contrac- transverse dispute to whether this tion. There is Patent, 1,480,719. The Gammeter Doughty anticipated by the use step was ap- This covers disclosure, with a difference or the" Tew *9 paratus shaping pulley for a band to tire need not it but resolve degree, by pressure. concededly form fluid It appears that transverse con- us for it to subsidiary suit, Hopkinson patent to the necessary only the result is not traction highly but asserted to disclose a meri- .is expansion, because longitudinal a radial concept torious inventive in that it teaches used, properties the materials pulley shaping by of a band the use of process, step also than in the rather pressure applied directly differential fluid property of both rubber and because this pulley by band means to a fluid- fully in the art had been understood fabric chamber, tight of which the band itself con- very generally, availed of for and had been wall, one application stitutes instead of the many years in the fabrication automo- pressure by fluid within the band means making process. bile tires tainly the core Cer- tube, Hopkinson. of an inflatable as in concept’ appre- no can be inventive 1, 17, property hended in the use bias cut claims in suit are and fully appreciated in process. which was as first three are for
857
applica
directly
baud,
limited to the
sure
the inner face of
Claims
and
are
to
may
respect
tion of
the outer surface
and
in this
suction to
be novel.
inner
subjecting the
surface
baud while
17, however,
We find claim
invalid.
atmospheric pressure.
all
Claim 17 covers
nothing
It
concept
discloses
more than a
pressure,
fluid
shaping
differential
suggested
without either means or method
super-atmospheric.
atmospheric or
whether
patent
in the
for its
materialization.
apparatus
for
18 and 19 describe
Claims
be,
may
true,
probably
that where
practicing
process,
the claimed
and are
encountered,
no other difficulties are
fluid
creating
for
differ
drawn to cover means
pressure shaping,
by atmospheric
whether
pressure
opposite
ential fluid
on the
faces
super-atmospheric
pressure,
compre
band, acting directly against
of the-
such hends
equivalents,
obvious
and whether a
sufficiently
faces. Claim
which is
il
pushed
tire band is drawn
suction or
out
group,
lustrative
the first
claim which
by compression, substantially
out
the same
counterpart,
no
has
and claims 18 and
When,
thing
however,
is done.
the in
printed
margin.4
ventor conceives of dispensing
in
with the
tube,
may say
by super-atmos
flatable
and shaping
at the outset that we have
pheric pressure
phrase
pulley
found the
pres-
“differential
within the
fluid
band,
necessarily
confusing,
sealing
sure”
conceives
somewhat
since it is dif-
pulley band
shaping
prac-
air-tight,
to conceive of
to make it
ficult
and at once
problem
pressure
tical
is encountered of placing
sense
fluid
is not at
the same
member in
pressure,
time differential
the sealed chamber to
fluid
unless, perhaps,
hold the band in
tire form for
itself is done
vulcaniza
many process claims,
tion.
in a
Like
apprehend
vacuum. Nor
do we
2, and
emphasis placed
conception
force of the
17 all disclose mere
argument
when
specification,
unaided
application
pressure
of fluid
but whereas
di-
band,
rectly
respect
with
except
as it
whereby
relate to the
discloses means
concept
breadth asserted for
is re
claim 17.
alized,
Certainly,
no
applying
such disclosure is found
suction to the
with
exte-
band,
respect
concept
rior of
the broader
permitting atmospher-
claim
pressure
operate
it,
ic
and will be seen
prac-
within
means were not
no
purpose
tical
obvious.
by interpos-
could be served
ing obstacles to either the suction effect
challenged
Claims
as hav-
upon the one
atmospheric pressure
face or
ing
anticipated by Hopkinson patent,
been
other,
and so no invention
1,289,771,
is dis-
by Sloper patent,
No.
closed
avoiding
what no one would con- 1,487,033. This led to the introduction
ceivably do.
It is true that
if claim 17 is
disputed
of much evidence
date
asserted,
scope
valid in the
and includes all
practice,
of Gammeter’s
reduction to
means or methods for extending the band whether
before
after the issue of the
by super-atmospheric pressure
Sloper patents;
from with-
his own
application
tube,
without the use of an
having
inflatable
been
filed later
extends to a
applying
pres-
method of
either. This issue was resolved below in
fluid
moving
manipulating
portions relatively
4 1. The
these
a tire
axial-
casing
ly
comprises applying
creating
of the band and means for
suction
dif-
pressures
opposite
to the outer
surface
ferential
thereof
sub
fluid
while
jecting
band,
the inner
faces of the
at
to distend
surface thereof
the middle
mospheric
portion thereof,
pressure,
acting
and at the same time
fluid
direct-
ly against
moving
portions
casing
bead
the faces of
the band.
said
relatively
change
apparatus
other,
forming
to each
19. In an
a tire
casing.
casing
having
form of
from an
endless band
bead-
edge portions,
forming
engaging
17. The
eas-
ed
means
band,
making fluid-tight
from an endless
which com-
connections
with
prises distending
portions
portions
the middle
bead
of said
form a fluid-
by creating
tight
pres-
the band
differential
fluid
chamber whereof one
is form-
wall
*10
opposite
by
parts
band,
bead-portion-
sures on the
faces thereof and
of
ed
the
said
moving
edge portions
engaging
being relatively
the
of the
to-
means
band
movable
other,
to'permit
edge
acting directly
portions
each
ward
fluid
the
the beaded
of the
against
approach
other,
the faces of
band.
to
each
the
band
and means
apparatus
pressure
forming
creating
18. In an
for
a tire
for
a fluid
condition
casing
band,
an
endless
means
said
for
within
chamber different
from at-
supporting
by
edge portions
mospheric pressure.
the band
its
later
box or
its
present
ant’s so-called Stevens
is here
plaintiff, and
favor of the
expander.
vacu-
Nichols
former uses
the.question of
The
ed.
conclusion
Our
necessity
shaping,
um for
is a
built
but
machine
the
us of
infringement
relieves
principle
from that of Gam-
differing
the
apparatus
deciding it.
In the
meter,
employs
and
no means other
shaping
for
by
patent
the
means disclosed
each
to
toward
ap
edges
suction move the bead
only for
by
pressure are means
fluid
lat-
shaping process,
other in the
while the
the cas
face of
the outer
plying suction to
all,
apparatus
ter
not
at
is'
a suction
Bassick
Hollingshead Co. v.
ing.
In R. M.
employs
pressure from
super-atmospheric
interpretation
Co., supra,
the
Mfg.
wherein
infring-
controversy, within and
as
so can be considered
in
the
“means”
word
was
ing
with the
Agreeing
no valid claim.
adherence
recently
our
re-announced
we
master,
the
though
in accord with
patent
not
scope
aof
that “the
to the rule
court,
invalid, and claims
spe
we find claim 17
the
to
be limited
should
a combination
2,1,
infringed,
and 19 not
or their mechanical
devices described
cific
by but not
illuminated
equivalents,” a rule
Patentj
1,507,563.
Abbott
in Davis
the discussion
in conflict with
Abbott,
predecessor Gam
like his
Departure
Sewing
Co. v. New
Machine
apparatus
aIso
and
disclosed an
meter>
method
6).A.
(C. C.
F.
Mfg
Co.
pulley
of a
shaping
the
band
Corpo
Machinery
See, also, United Shoe
applied
face
the
vacuum
to its outer
and
v. H. Gordon
ration
pressure
atmospheric
utilization
within
principle discussed
6).A.
C.
discovered, however,
^be
band- He
the
respect
in
to
use
was
the cited cases
in
maintaining seal-
could be doue without
in
or “mechanism”
“means”
the word
]bis
edges
the
of the
contact with
beaded
inevi
to us
apparatus claim.
seems
Gammeter,
band as
and that
the band
process
the case of
tably to
that in
follow
shaped
necessity of
c°uld be
without
the
and
by descriptibn
until aided
claims which
paits
moving
ing
opeia
dui
the
concept,
providing^
^ion. This
mere
evidence
specification
step
was
doubt
foiwaid
no
by which
means or
where the
mechanism
expander
the art. The Abbott
is a circular
practiced
neither
U-shaped
box of
vacuum
construction
skill,
nor within mechanical
obvious
section,
being placed
cross
especially where the
principle applies,
same
proti
top
so
udes
at
therein
that it
both
very
mechanism relate
means or
bottom,
provision made for ob
with
process.
novelty
for the
claimed
point
taining sealing
inner
contact between the
Steward, 155
American Lava Co. v.
See
of lts
bottom
in
walls and
t0P
edSes
page
6).A.
F.
at
portions
termediate
of the band. While
apparatus
new,
shaping
Both
think
suction was
we
shaping
embrace
applied
Gammeter
it
was
obvious
it could
applied to
suction
its
casings
making sealing
tire band
tire
con
without
band,
while at the same time mov
edges
outer surface
tact
the beaded
with
tire
portions
casing
sealing
rela
provide
bead
and that to
contact
with
tively
change the form
each other to
irregular
surface of such band intermedi
no in
edges
We think there can be
casing.
ate
beaded
so that
mov
concept
edges
discovered
the mere ing parts
ventive
could be brought
to
thought
shaping
tires
vacuum.
In gether
shaping
and the
achieved discloses
deed,
very
comprehends
event,
concept.
itself
an inventive
pressure shaping
reciprocal
prepared
say
pre
in face of
vacuum
are not
general
validity
in the
art of manu
processes,
sumption
that attaches to the
rubber,
shaped
weight
out
it
facturing
grant,
given
articles
that is to be
apply
old
suction to secure
de
findings
was
master
dis
the concurrent
form, reaching
even
art
judge,
sired
was no invention
trict
there
in Ab
in the
of inner tubes
apparatus
itself
au
is that the
bott. Our conclusion
say,
valid,
arriving
is not to
tomobile tires. This
how claims are
at it we
ever,
ignore
they
contention that
may not
do not
there
be invention
were
Sloper,-No. 1,487,034,
anticipated by
pat
combination
elements which Gammeter
When,
shaping.
true
disclosed for vacuum
in issue.
It is
that a machine
ent not
however,
Sloper patent,
these elements are considered in
and demon
built after
specification,
before the master at
Firestone
light
and of the strated
Akron,
art,
organized
so
impossible
plant
advancement
form
casing
be used to
a tire
infringement
either
could
find
the defend-
*11
the
machine no
same manner in which
Abbott
matter
many
how
bases that mo
however,
This,
nopoly
See,
was intended to be used.
also,
rests.
Grinding
Gear
permanent
of the low
locking
Machine
involved
Co.
Corporation,
v. Studebaker
platen
Sloper
510,
F.(2d)
er
a certain
movable
511 (C.
6).
Accordingly
position
purpose
for
pass
in a
a
we do not
manner
validity
taught
Sloper.
by
think decision calls Abbott
claims,
and as
them
prior
application
for
bill
of the rule
a
will be
prejudice.
dismissed without
by
anticipate
though
device does not
even
Sloper Patents,
The
1,372,567
Nos.
may
accomplish
modification it
be made to
1,487,033.
performed by
patent,
a
if not
function
The first
patents
of the Sloper
covers a
designed
purpose by
for
its maker
method and
apparatus
the second an
for
adapted
therefor, Topliff
Topliff,
v.
for use
by
tires
of super-atmo-
use
825,
Ed.
U. S.
12 S. Ct.
36 L.
spheric pressure applied
within the
pat
rather than for the rule that the
Sloper
band.
appears to have attacked the
entee may claim for his invention all uses
problem of devising
operable
an
mechanism
may
put,
which the machine
be
whether
by which an expansible
might
member
be
understood
him at the time
not. C.
placed within the sealed tire band for the
purpose of retaining it in substantially tire
Creager,
& A.
Potts & Co.
U. S.
15 S. Ct.
ber is liberality accorded the inventor must be expand seem to us a re- it.” It would *13 961 recapture application what limitation he original earlier in his has who failed invention, sub- abandoned. think these upon that We circumstances his true claim point inadvertence, clearly to do so failed absence showing he has that stantial made, accident, or mistake. innocently error through some right his Commissioner as to of the decision note in the contention that reviewed, yet, where not be will to a reissue considering wrapper history upon file was that there for a conclusion no basis question estoppel, no attention be need proved, is either asserted or such error given solicitor, arguments there is conclusive that evidence where the based case of A. & Spalding G. Tar- none, reissue is void. Peoria was Wanamaker, Bros. v. 256 533 F. John Co., F. Target 58 Cleveland get Co. v. 2), By C. A. and our own comment in de- In most recent 6).A. our 239 Co., ers Keystone Machine Co. v. Driller subject, has been this the rule cisions on 44 F.(2d) 285. present, We are not at care- fully and the authorities considered however, concerned with question McMil- fully H. Roos Co. v. reviewed. W. estoppel, but considering whether there Sig- lan, 568; & F.(2d) Switch Union inadvertence, was evidence of accident Signal Frog, Switch & nal Louisville Co. v. support mistake to the Commissioner’s case 552. In the latter reissue, grant of question this oath point pains to we took out that we contemporary understand be records to comply Rule failed there considered with pertinent. McMillan, H. W. Roos Co. v. Practice, requiring (d) of Office Patent supra. It must also be noted that in his er- particularly specify “the it should original application Hopkinson was own in- which it is claimed constituted rors solicitor, so no misunderstanding be accident, up- advertence, mistake relied tween inventor and counsel as to the true they arose on and how or occurred.” nature and breadth of the invention Hopkinson application reissue oath to the urged. now be The reissue claims in suit specific than that there involved. is no more are invalid becomes unnecessary to were reis- But even consider the consider questions infringement or sufficient, application and sue verification intervening rights. history yet wrapper appears from the file Patent, The Lough 1,607,266. inad- that there was in fact no case This is strip, for a breaker which vertence, accident or mistake. casing conventional tire manufacture in- is (5) original presented in his a claim terposed between the tread rubber oth- as one of which contained its elements er carcass elements. Its function pre- is to aligning “means for a flexible and resilient vent localization road shocks dis- causing member and the same to moved tributing throughout the stresses the tire. positive engagement shaped into within single (3) easily claim suit is under- shape.” imparted to maintain its stood, quite clearly presents we think claim, others, among rejected This problem before us but its in- Sloper. then amended his reads: “A breaker evitable answer. by adding to claim “means for aligning strip consisting rubberized interwoven flexible and resilient member within said forming cord elements a diamond-shaped following: coacting band” the “and means diagonals mesh the of which mesh are with said member to cause the same to be lengthwise shorter strip crosswise the moved, pointed He etc.” out to Patent whereby capacity increase the neither Sloper Office that nor in Abbott strip rupture.” to be distended without coacting is there such means since each of them the movement of the Experience had taught tire makers member is caused the characteristics of upon expansion some of the threads by any the member and acting means strip part, expansion the breaker would be thereon, being characteristics the ing greatest strips at tread. Breaker spring construction Sloper device had been cut both woven fabric and and the inflation of the bag air in the Ab- The rearrangement from cord fabric. construction, bott and that while has an expansion he the cords of both types hag Abbott, inflatable long air as does has fully been fabric had understood. addition means forcing bag employee plaintiff, out- Lough, an claimed wardly. The reissue claims no greater contain to have the idea conceived ex- such as do limitation pansibility process, amended claims could obtained accepted, patentee thereby “racking,” elongation cannot of fabric be- Deering Works, made Winona Harvester preliminarily rubberizing fore U. S. 39 L. Ed. S. Ct. to that opposite direction opin- our to be stretched. later invention, and ion this did not amount fully Sloper Our failure to deal with invalid. perhaps we hold the claim emphasis due to the in brief and *14 argument upon question infringe- strips; he Lough invent breaker did not ment, and petitioner the insistence of the proc- fabric; no invented did not invent equivalency pneu- of the Nichols an old ma- He used rubberizing for it. ess matic tube Sloper ring, mechanical art, and ob- way in an old in terial an old Sloper’s notwithstanding express disclaim- degree in improvement only an tained er of the former. Additional comment on skilled of those the reach treatment within Sloper is therefore indicated. grant towe even But were in the art. Sloper Whether the claims 1-4 are to be to this thought of inventive measure some particular limited to disclosed in the retaining means anticipated clearly advance,'it was minor drawings in described early as fabric woven in related uses of specifications, they whether 5,908 reissue patent, (1848), as the Solis broadly so be construed as to include Moreover, manip- Lough’s (1858). No. 636 means, all required retaining we are not to be a appear fabric would ulation Certainly to decide. in the state of the element than an rather step in a art, teaching commercially practical no created product. No new article in a industry, by value contributed to the were in squares woven when the means, claims shaping which describe but a lengthwise in running changed to diamonds while silent as to means mechanism another, or when instead of one direction shape may, economically which by preliminary realigned the cords were required precision, with retained until be relationship method stretch. On the concept Accepting “set” vulcanization. concept, see article to machine or construction, broader we sense inven- fail to Ltd., 55 F. Eugene, Mur Co. Nestle-Le Sloper tion in claims 1-4 of and are in In 6). our (2d) below, accord with master both and court invalidity again find our- conclusion of we validity, denying ground them in on the rather master selves in accord with the they more show no than routine me- than with the court. chanical advance over Gammeter suit. aside. A below will be set The decree plain- granting entered vacuum, decree shaped by Gammeter with the infringement for relief tiff the usual apparatus platens sealing aid of movable contact patent, No. of Abbott upper pul- claims lower edges with 1,507,563, dismissing bill as the ley Sloper’s band. subcombination claims suit, patents including pres- dismissal shaping super-atmospheric disclose other platens, as to the Abbott with con- prejudice sure tact the aid of similar pointed having prevailed with out in our defendant the band. We claims. The wholly appeal, in discussion that vacuum and substantially in its of Gammeter pressure reciprocal process- are but cross-appeal, be allowed costs. will petitioner’s argument for es and that the Rehearing. Petition On validity neces- of claim 17 Gammeter was sarily equivalency. their con- petition rehearing calls atten- based on opin- original validity combination of fact that while our ceded to Gammeter’s tion ion concedes validity Sloper patent, platens contact with the in sealed movable rejects band, air-tight vacuum edges contention No. it is Gammeter, pneumatic retaining by the infringed enveloping it. Given how- box band, expander, ever, Nichols no the mov- sealing means of defendant’s incorporated edges specific platens therein with force its bead toward holding is able Sloper, other, contact with respect sealing 1-4 of which in- their each operating as a all at hand for the skilled edges no element clude bead subcombinations, means, com- disclose extemporizing requir- mechanic. The subcombinations, platens plete provide in themselves. Such of size to seal the ed was asserted, may pulley band instead of subjects openings be the those valid it is box, and to air con- Dunbar, reverse rule White v. in the vacuum claims under the compression rather so to achieve U. 7 S. 30 L. trol than S. Ct. Ed. inven- regard step rose to and without to whether the Neither vacuum. operable an themselves disclose device. tion. failed, thought, to sense Gammeter or, it, plac- problem sensing to solve the operable retaining in a sealed device chamber, if claim was as broad as ob- thought contended. This we was not vious, prob- and this we conceived to be the Sloper chiefly lem to him- addressed respect self. original no other does our opinion by Sloper indicate solution of that beyond which was Gammeter. Sloper 1-4 Claims we hold to Hodes, Corp. Counsel, Barnet and Jo invalid, thereby required change but no *15 seph Grossman, F. Daly, and William V. in our direction to the District Court. Corp. Counsel, Assts. to of Chicago, all petition The rehearing for is therefore Ill., appellants. for denied, L. McInerney, Chicago, Ill. John Frank, (Bernhardt Ill., of Chicago, counsel), for appellant Kelly, Edward J. Mayor. William Boyden, Jr., David
Watts, Keele, Harold M. and Don M. Peebles, all Chicago, Ill., appellees. Before SPARKS, ALSCHULER and Circuit Judges, and LINDLEY, District CHICAGO, Ill., KIRK CITY OF et al. v. Judge. LAND et al. No. 5658. LINDLEY, Judge. District Appeals, Circuit Court Seventh Circuit. Under the ordinances of the city of Chicago, mayor Nov. is authorized to issue and revoke licenses to theaters. The au- thority to revoke is conditioned existence of the fact that the licensee has or violated is violating city ordinanc- es or state statutes. mayor, having production witnessed the play “To- Road,” bacco found the same to be inde- cent and degrading, production same, therefore, to be a violation of the city ordinances, and revoked the license of the theater in produced. which it was The District Court awarded a preliminary injunction restraining mayor from car- rying effect, the revocation into and this
appeal followed. pertinent sections of the ordinance included in the footnote.1 acts, suggestive sing- “4222. Indecent five dollars nor more than one hundred language, gestures. ing, obscene abusive dollars offense. each any A.ny person books, who commit inde- pic- shall “4223. Indecent or lewd filthy any cent, place tures, plays, picture lewd or act in ele—.-exhibition of any filthy city, figure. or shall utter lewd or any nude It shall be unlawful for sing any song words, person exhibit, or shall sell, words sell or offer to or suggestive indecency any distribute, or or circulate indecent or immorality, any threatening book, picture things or use lewd or other what- language hearing abusive persons publicly, nature, other ever of an immoral or scandalous any exhibit, any place or shall make ob- or to where the mme gesture any per- public about scene other can be highway, seen from the publicly, public place frequented by shall sons be deemed a disorder- in a children ly person, and shall fined not less than which is not connected with art or