287 F. 838 | 9th Cir. | 1923
The basis of this suit was a reissued patent of July 20, 1920, to the appellant Keller for claimed new and useful improvements in windshields for automobiles. The original patent to him was issued November 12, 1918, in which he stated:
“It is common practice to fit automobiles with a transversely extending transparent shield, which is secured within a suitable frame and mounted upon the dash of the vehicle body. Due to the narrow width of these shields, the. wind draws in around the edges and creates considerable draft within the vehicle. It is the principal object of this invention to provide auxiliary transparent shield members, which may be secured in an adjustable manner at the opposite sides of the main windshield, and more thoroughly prevent the creation of a draft through the vehicle body.
“Another object of this invention is to provide a windshield of the above class which does not require the use of a large mounting frame and may thereby be held in position without obstructing the view.
*840 “Another object oí this invention is to provide a peculiar pivotal mounting for the shield, which will allow it to be universally moved throughout a horizontal plane and in relation to the edge of the main shield.
“Another object of this invention is to provide simple operating means for instantly locking the pivotal mounting in any desired position.
“It is a further object of this, invention to provide a windshield which will be neat in its design, simple in its construction, and will act to .enhance the appearance of the vehicle upon which it is mounted, rather than to depreciate it.”
Accompanying the foregoing with illustrative drawings and their explanations, the patentee made the following three claims:
“1. In an auxiliary windshield, the combination, with a vertical supporting post, of a transparent shield member, brackets engaging said member at its upper and lower ends, means whereby said brackets may swing horizontally to adjust the shield, a secondary hinge adapted to act in combination with said first-named hinge to allow the shield to have universal horizontal^ movement in relation to the supporting post, and means whereby the two joints of the shield may be simultaneously locked.
. “2. In an auxiliary windshield, the combination, with a vertical supporting post, of a transparent shield member, brackets engaging said member at its upper and lower ends, means whereby said brackets may swing horizontally to adjust the shield, a secondary hinge adapted to act in combination with said first-named hinge, to allow the shield to have universal horizontal movement in relation to the supporting post, means whereby the two joints of the shield may be simultaneously locked, and means for detachably securing the shield upon said post.
“3. In an auxiliary windshield, a rectangular windshield glass, upper and lower supporting brackets having channels in which the glass is mounted, and having aligned bearings at one side of the glass, a spacing sleeve having its ends rotatably mounted in the bearings, a shaft extending through the bearings and through the sleeve, a lock nut upon the shaft for tightening the bearings upon the sleeve, a knuckle joint bracket having two parallel bearings, said sleeve being mounted in one bearing, there being a horizontal bore through the bracket and connecting the bearings, and there being a passage through the sleeve in line with the bore, and there being a tapered face upon the shaft in line with the bore, a lock nut mounted in the bore and having a tapered end engaging said tapered face, mounting bracket having ears between which the other sleeve bearing is mounted, and a hinge pin inserted through the ears and bearing and having a recess to receive the other end of the lockbolt, said mounting bracket being adapted for engagement with the side post of a windshield, so that by loosening the lock nut upon the shaft the parts may be loosened to move the windshield to a desired position, and then by tightening the lock nut the parts may be held rigid with the main windshield.”
In the reissued patent of July 20, 1920, the first three claims are identical with the 3 claims of the original patent^ besides which there are 20 other claims. ;
That there is nothing of a pioneer nature in Keller’s device is abundantly shown by the numerous exhibits appearing in the record of windshields and deflectors, of one kind and another, attached to automobiles long before Keller entered the field. Both his drawings and specifications show that his shield is attached to the machine by brackets that run up and down the glass, holding it at the top and bottom, whereas the appellee’s device holds the glass by means of a fixture attached to the face of the glass and which does not extend to either of its ends. That for one device to be the equivalent of another it is essential that the former must perform the same function of the latter
The evidence shows that, prior to any knowledge on their part of the Keller patent, the appellees had been working on their device, and had made and sold a few of them, but subsequently learned of and became familiar with the original Keller patent, and before proceeding with the manufacture and sale of their own device, and prior to the making of the application for the reissued Keller patent, they applied to the attorneys who procured the original Keller patent for information as to whether their device was an infringement upon that of Keller, saying that they did not wish to infringe, and, being told that it would not be an infringement, they proceeded with the manufacture and sale of their own on a substantial basis. We therefore think it clear that the appellees had and have such intervening rights as were properly protected by the court below. See Coon v. Wilson. 113 U. S. 268, 5 Sup. Ct. 537, 28 L. Ed. 963; Topliff v. Topliff, 145 U. S. 156, 12 Sup. Ct. 825, 36 L. Ed. 658; Dunham v. Dennison, 154 U. S. 103, 111, 14 Sup. Ct. 986, 38 L. Ed. 924; Auto-Piano Co. v. American Player Action Co., 222 Fed. 276, 138 C. C. A. 38.
The decree of the court below is affirmed.