264 F. 963 | 6th Cir. | 1920
Suit for infringement of United States patent to Ward, No. 865,461, September 10, 1907, and United States patent to Allison & Pinkney, No. 1,112,184, September 29, 1914, both relating to cracker-cutting machines. The District Judge found the claims of the Ward patent in suit (Nos. 1 to 9, both inclusive) void for anticipation, and that patentees were not the first and original inventors of the mechanism disclosed in the claims of the Allison & Pinkney patent in suit, viz. claims 1, and 2. This appeal is from a decree dismissing the bill.
“1. In a machine for cutting crackers and the like, means for feeding the sheet of dough continuously through the machine, reciprocating mechanism for cutting same into cakes, with means for moving the cutting mechanism . during the cutting operation in line with and at the same rate of speed as the continuously moving sheet.”
The remaining claims in suit contain nothing calling for special mention at this time, except that claim 2 contains a general element of “means for removing the scrap from the cut sheet,” and in claims 3, 5 and 9 the words, “a cutter acting at right angles to the apron” are used, instead of “reciprocating mechanism for cutting the same into cakes.”
Setting to one side for the present the scrap-removing feature of claim 2, it is obvious that, so far as the claims in suit are concerned, Ward’s contribution to the cracker-cutting art is limited to such invention as may be found in his.provision for unison of movement between cutters and dough sheet. . In our opinion such invention is not present. Ward was not the first, even in the biscuit-cutting art, to provide for unison of movement between cutter knives and the material to be cut. Perky, in 1901 (thus antedating Ward’s application nearly five years), disclosed a machine for cutting shredded wheat biscuit, by which the biscuit material, carried upon a continuously moving conveyor, is subdivided by a series of vertically operating knives carried by endless belts above and below the bis
The Hovey patent (No. 129,411, July 16, 1872) disclosed, in a brick machine, mechanism whereby the clay, after leaving the die, is carried by an endless apron under a vertically reciprocating knife, which is also reciprocated longitudinally with the movement of the apron; the knife thereby moving forward at the instant of cutting with the same velocity as that at which the column of clay is moving. Hovey’s mechanism for longitudinal reciprocation of the cutter heads is the substantial equivalent of that employed by Ward. It is this Hovey device which the District Judge found to anticipate the device of the Ward patent. The differences between the mechanism of Hovey arid that of Ward are so slight that Hovey would unquestionably anticipate Ward, were Hovey’s device in the biscuit-making art. Indeed, this is conceded by plaintiff’s expert.
But, even were Ward entitled to protection to the extent to which he may have devised or adopted specific mechanical means for adapting Hovey’s device to the cutting of crackers, he would be entitled in no event to more than that, and such specific means we think defendant cannot be said to employ, in view of the prior art on this subject. While defendant employs a horizontally reciprocating cutter head, its back and forth movement, communicated through a rock shaft, is made, by a highly complex mechanism, to combine a rotary movement of the crank connecting the main shaft to the rock shaft with a bodily back and forth movement of the bearing about which the crank shaft revolves, thus producing a constant and invariable movement of the cutter head during about one-third of the revolution of the crank shaft instead of (as in Ward’s device) during only the moment when the cutter is completing the cut and is starting on its upward movement. Defendant’s mechanism in this regard is concededly superior to Ward’s. Indeed, infringement is not alleged as to either of Ward’s last five claims, which include Ward’s mechanism for effecting the back and forth movement, although defendant’s mechanism is also adjustable.
The inclusion in claim 2 of the scrap-removing element — “means for removing the scrap from the cut sheet” — does not work an exception in favor of invention in that claim. A scrap remover was a well-known feature of the old step by step cracker-cutting machine. The types employed by Ward and defendant, respectively, are. both old in the art. The addition to the “unison” type of machine of this old and common feature of the step by step machine involved no more than mechanical skill.
2. The Allison & Pinkney Patent. The claims in suit relate entirely to a “pan-skipping” mechanism; they are printed in the margin.
On the trial of the instant case below, priority of invention, as between Allison & Pinkney and Green, was directly in issue. Green testified on this subject, as did also one Morton, an engineer in Green & Co.’s factory in 1909. The testimony of both of these witnesses was taken in open court. Judge Sanford not only found by his decree that Green was the first and original inventor of the improvement in question, but in his opinion, filed as basis of that decree, said:
“The proof shows, in my opinion, beyond reasonable doubt, that Allison & Pinkney were not the first and original inventors of the differential pan-skip mechanism disclosed in - claims 1 and 2 of the Allison & Pinkney patent, * * * and that the first and original inventor thereof was Thomas L. Green, the president of the defendant Green Company, who, as early as 1909, invented this mechanism, constructed a machine embodying the same and successfully operated it in Cardiff', Wales. On this point I am entirely satisfied as to the truthfulness and substantial accuracy of the testimony given by defendant’s witnesses, Green and Morton, the correctness of which I see no substantial ground for questioning.”
The .Cardiff machine was manufactured in the United States.
This conclusion makes it unnecessary to pass upon plaintiff’s contention that Green’s patent, applied for before he built the Cardiff machine, does not cover what plaintiff claims to be the invention of Allison & Pinkney, viz. the employment of a differential gearing as either an accelerating or retarding mechanism, and the registering of the pans with the pan skip while the pan conveyors are moving, in acbrdance with which contention plaintiff disclaims an interpretation of the Allison & Pinkney patent which would include what plaintiff claims is the mechanism shown by Green’s patent (priority to that extent being conceded to Green), but which plaintiff says requires disconnecting the pan conveyor from its driving
It results from these views that the decree of the District Court should be affirmed.
“1. A pan carrier, consisting of an endless conveyor, a pan-skipping mechanism co-operating with said conveyor and means for setting said conveyor relatively forward or backward while in motion for the purpose of registering the pans with the pan skip.
“2. A pan carrier, consisting of an endless conveyor, a pan-skipping mechanism arranged to actuate said conveyor at certain intervals, means for driving said conveyor, and manually operated means for accelerating or retarding the movement of said conveyor for the purpose of registering the pans with the pan skip.”