90 F. 488 | U.S. Circuit Court for the District of Eastern Wisconsin | 1898
(after stating the facts as above). The controversy in these cases relates wholly to the patentable novelty of the claims in question under each of the letters patent. The utility of the devices, especially as they are embodied in patent No. 547,-732, is unquestioned, and infringement is contested by objections only to the sufficiency of the proofs. The issue involved of anticipation in the prior art, which is frequently one of complexity and nice distinctions, is here simplified by the nature of the testimony, the undoubted authenticity of the exhibits, and the clear presentation in connection with the state of the art.
I. The Harrington patent, No. 506,430, rests solely upon the date -of filing the application for the presumptive date of discovery, namely, March 6, 1893. Laying aside the several prior patents which were introduced as disclosing the use of wood rims for bicycle wheels, and numerous others of which it is claimed that they show analogous prior use, it is sufficient and controlling for the purposes of this ’inquiry that the device made by the witness John 0. Garrood between ,.tke years 1885 and 1887, which entered into public use during several years thereafter, perfectly anticipates the Harrington device. This Garrood production is established beyond doubt by concurring witnesses, by an exhibit original wheel, exhibit original rims, old photographs, and confirmed by Garrood’s application filed in the patent office January 10,1887, to procure letters patent on this device, — as an “improvement in vehicle tensional wheels, in which an endless rubber tire is secured into a wood felloe, made in one piece, and turned up all over it, steel wire spokes, and a steel or other suitable metal hub,”— which application was rejected in that office, and there left, without further prosecution. Garrood’s device was also employed by the witness Turner, and by one Anderson, a manufacturer of bicycles, each of whom made these rims with some attempted improvements, which entered into use in bicycles to some extent, all prior to the Harrington application. Indeed, the evidence of the Garrood rim is so satisfactory as to time, design, and publicity that counsel for complainant conceded, in the course of his argument, that it was clearly an anticipation of the discovery claimed by Harrington, but for failure to carry it into general use in the manufacture of bicycles, which is asserted to create an exception from the general rule, and place this rim, and those of Turner and Anderson as' well, in the category of abandoned experiments.
With this frank admission of strength in the interesting showing of-fact, no review is called for beyond the testimony relating to the character and extent to which these wood rims entered into use.
The use thus disclosed was manifestly a "public use,” within the meaning of the term as employed in the patent law, to render a later production of identical means nonpaten table, without regard to actual knowledge of such prior discovery and use. It is the fact of use given to and received by the community at large, in contradistinction to shop-experiments, or mere occasional exhibitions, or use; by the inventor-alone, which must control; and it is not to be measured by degrees: or territorial extent, nor made dependent upon any probability of fact that knowledge of such use should have reached the later claimant. Therefore I can find no tenable ground for excepting the use here shown from the general rule. It was fairly constant for a period of at least four or five years, when the demand for bicycles, and the-bicycle art as well, were in the formative stage, — an infancy of surprising length, when viewed in the light of their growth within the past few years. If the use be regarded as local in Boston and Lynn, it was made public in a locality which was probably the most important manufacturing center for bicycles at that stage of the art; and the wood rim introduced by Garrood was not only utilized ¡.here in a number of practicable wheels, but was placed on the market, taken and used by manufacturers, and presumably the wheels so-made were sent out to customers elsewhere. How widely the information was carried (hat wood rims were practicable cannot, of course, be known, nor is it material in the view indicated. That they
2. The remaining patent in suit is No. 547,732, for a “wooden-rim bicycle wheel,” issued to George W. Marble, assignor, October 8, 1895, on application filed December 22, 1893. This patent embodies the wood rim as described by Harrington, but substitutes for the lap joint of the latter a joint consisting of “a series or multiplicity of tongues and grooves, glued together, extending longitudinally of the rim and in the plane of the wheel.” The joint is therefore the sole feature in the combination for which novelty is claimed, and as to that element it is well conceded that the tongue and groove or dovetail, with or without glue, is an old and well-known form of joint in numberless productions of wood. Its use to join the ends of a rim of bent wood to form a pulley is found in letters patent No. 216,095, issued to P. Medart in 1879; but examples are too common to require citations. In the prior bicycle rim of Anderson, produced here, and referred, to in considering the Harrington patent, the tongue and groove joint constitute the sole improvement over Garrood. The joint introduced by Marble is, however, claimed to have peculiar form, founded upon his alleged discovery “that a glued joint between two pieces of wood is many times stronger against breaking strains applied in the plane of the joint than it is against breaking strains applied at right angles to the plane of the joint.” Accordingly, his tongues and grooves are described in the patent as “extending longitudinally of the rim, and in the plane of wheel,” while in the common form they appear to have been placed at right angles to that plane. Whether this change is one “in the form of embodiment, of mere degree or quality of action, without changing the function of any element or adding a new element,” and not patentable (Baldwin v. Kresl, 46 U. S. App. 511, 526, 22 C. C. A. 593, and 76 Fed. 823); or whether it constitutes a departure so radical in its operation, and so meritorious in results, as to be entitled to the grant on the broad basis of equitable consideration, — are interesting inquiries, which do not require decision in this case, if my conclusion is well founded as to the proof of prior use of this exact form of joint for analogous purposes. In United States letters patent No. 231,002, issued to W. Briggs, August 10,1880, for a chair-seat rim, the meeting ends of a single strip of bent