274 F. 964 | U.S. Circuit Court for the District of Southern New York | 1912
(after stating the facts as above).
No. 1: That the pawl and ratchet mechanism is inoperative. This depends upon the fact that the arms k 5 and k 0 cannot rise high enough, nor drop low enough, to make the pawl take more than two teeth on the ratchet, and pull down more than two, so producing less than a quarter circle of revolution. No one shows how this can be remedied. Moreover, the lever, e B, is forced into the notch G of the back of the paste plate by a spring, e 8, without which it would never lock the plate, since its heavier end is on the far side of the pivot, e 4. The temporary release of the plate by the contact of the end, e8, with the cam, e7, will not answer, because on the return movement the spring, e 8, will 'at once cause the lever again to lock the plate as soon as the cam, e7, ceases to contact. That will be before the pawl has begun to pull upon the ratchet, for the cam will lose contact as soon as the L,piece, b s, has descended the length of the slot, b 9, and the large number B must descend still further than that before the arm, k 6, begins to pull down the lever, f i, which operates the pawl, if it could do so at all. Moreover, at that period in the operation of the machine, when the
No. 4: That the machine can never unlock the plates. This is really another form of the objection No. 7. It also depends in part upon the fact that the bent ends of the treadle N cannot operate to raise up the arms, d, d, high enough, because the bent ends strike on the sides of the frame.
No. 6: The slotted connection between b 8 and 0 is; inoperative. This is said to be an unworkable device mechanically; it will jam if one tries to operate it, and it is fundamentally vicious. No one suggests that it could be changed. Obviously there must be a portion of the rise in the book, represented by the slot, b 9, during which the plates so remain in contact with the sheets that a solid piece at that point would not serve. How to remedy this does not appear.
No. 7: The ends, D, D, of the arms, d, d, must enter the paste tank to give the slides d7, their necessary movement. This is obviously true from the diagram. It is answered that the pot might be divided; but, if so, the paste plates could not close on the book. No other suggestion is made as to how this could be remedied.
As these two machines are the only ones, besides the defendant’s, which have ever appeared in which the claim has been embodied, and as the evidence nowhere suggests that there is another way in which it could be embodied and the unworkable features of the first eliminated, I think the question must resolve itself into this: Whether a skilled mechanic could have devised the second machine from what he saw of the first. A judge is entirely unadapted to decide such a question as an original question, and must rely upon the testimony of skilled artisans or of experts in mechanics.
Here the only evidence is that a skilled artisan could not have done so. I cannot accept Gunz’s testimony in rebuttal as raising an issue in this respect. The codefendant’s witnesses at great length pointed out the difficulties, and showed that the machine as disclosed was thorough
Absolutely conclusive appears to me to be'their testimony, when they saw the diagrams of the second machine. I know that they were not skilled in the use of diagrams, but that makes their recognition of such details as the intermittent rotating device for the paste plates especially significant. The description, “a sort of a piece of iron sticking out from both sides which went into a socket like,” is the sort of description that a layman would give of the second machine, but never of the first. Again Rees and Recame’s recognition of the arms C B is almost inconvertible evidence that the second machine is what they used, for the arms are quite unlike the plate-tipping arms of the first machine. Although Recame says that the first of the two machines used at Little’s was not in use while he was there, yet he recognizes the second patent as describing that machine.
Now, George H. McClellan, who was the foreman at Little’s says that five machines were sold, and that only one went to Little’s. This one, “as nearly as I can recollect,” was built in 1899, was installed in “the early part of 1900”; but later, when recalled, he said it was put in “about the latter end o.f 1900, or the first part of 1901,” but he does not say how it worked, nor under which patent it was made. Certainly, so far as this evidence goes, it shows that, whether or not two machines were sent there, those that were sent were made under the second patent. Jackson McClellan to a certain extent corroborates their testimo
I am satisfied from all this testimony that both machines were made under the second patent, which was applied for in June, 1900, and that the only evidence of any use of a machine under the first patent is that of Jackson McClellan himself as to the use made of the so-called “model” machine. It becomes necessary, therefore, to consider his testimony. He says that he actually cased in books with the model machine which he made and from which the drawings of the first patent were taken. From that model machine Hindle made the first of the five machines that were ever made at all, and it differed from the model only in running gear. Now, as I have shown, the first of Hindle’s five machines was that sent to Little early in 1901 or late in 1900. It is therefore a fair conclusion that the model Jackson McClellan speaks of was similar to the Little machine which Recame identifies as made under the second patent.
Moreover, since Jackson McClellan says that the two Little machines were alike, except in “running gear, cams,” etc., Ree’s testimony corroborates Recame’s that the model machine was under the second patent, in spite of Jackson McClellan’s testimony to the contrary. In addition, it is quite clear that Jackson McClellan was confused in his recollection of the two patents,, because he says that in each the paste plates get a half turn, which is concededly not the case. His recollection is also at fault in thinking that either of the patents shows any beveling of the paste plates at the edges.
Considering this confused and uncertain testimony of Jackson’McClellan, which is certainly inconsistent with itself and with the testimony of the other witnesses, and considering the failure to call Hindle or to explain his absence, I cannot think that the complainant has met the proof of the defendant, and 1 conclude as a fact that the disclosure was not of an operable device.
It is quite too much to claim for a new invention that it is a pioneer merely because a new theory is adopted. Surely every one is familiar
Bill dismissed, with costs.
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