268 F. 536 | 6th Cir. | 1920
These cases were heard and submitted together. The Meurer Steel Barrel Company, Incorporated, commenced an action in the District Court against the Cleveland Steel Barrel Company, and a separate action against the Ohio Corrugating Company, for infringement of letters patent, No. 891,895, dated June 30, Í908, granted to Frank E. Young, and assigned to the plaintiff. The barrel manufactured by the Cleveland Steel Barrel Company and the barrel manufactured by the Ohio Corrugating Company, which are claimed to be infringements of this patent, are substantially identical, and the records in each of these respective cases are substantially alike, so that they present but a single question.
The defendant appealed from the decree of the District Court finding the patent in suit valid and infringed by the original type of barrel, and the plaintiff appealed from the decree of the court finding its patent not infringed by the new type and dismissing its supplemental bills. Each of the defendant appellees in the appeals taken by plaintiff below, being causes Nos. 3400 and 3401, filed a motion to dismiss these appeals, for the reason that the decree sought to be appealed from is
The original infringement, going on when the bill was filed, and the claimed infringement of plaintiff’s patent by the new type of barrel, being manufactured and sold by each of these defendants after the temporary injunction had been allowed in the original action, constitute separate and distinct causes of action, and upon the latter cause of action the plaintiff was entitled to bring a separate suit to enjoin this infringement and for assessment of damages. Acting, however, upon the suggestion of the court, it filed supplemental bills in the original action.
If, instead of a supplemental bill being filed, a separate action ha4 been commenced, and in such action the decree of the court were identical with the decree entered by the court upon the supplemental bill, there would be no question as to its finality. Clearly it is not so interwoven or connected with'the claims of the original petition as to be incapable of separation therefrom, or prevent it being treated the same as if separate decrees were entered in separate suits.
The complete separability, as a practical proposition, of the issues raised by plaintiff’s appeal from those raised by defendant’s appeal, appears by the fact that no disposition of the latter can by any possibility require a reversal in the former. The question of infringement by the new type would be equally unaffected, whether the patent is held by this court valid or invalid, and whether or not the first type is held to infringe, and the second type could not be considered on the accounting, whatever the result of defendant’s appeal might be. The two appeals ought, in the interest of orderly administration, to be heard together, unless jurisdiction so to do is wholly lacking. We think this is not the case, under the peculiar situation before us. The case is not in its practical aspect the same as if the appeals were from a decree holding certain claims valid and others invalid.
It is clear from the peculiar facts and circumstances of these particular cases that the dismissal of plaintiff’s appeal would operate to defeat, instead of to accomplish the purpose and intent of, the statute preventing an appeal of a cause by piecemeal. For the reasons above stated, the motions to dismiss these appeals will be overruled.
In view of the fact that in the opinion in the case of Meurer Steel Barrel Co. v. National Enameling & Stamping Co. and in the opinion in the case of Meurer Steel Barrel Co. v. Draper Mfg. Co., supra, the prior art is fully reviewed and the distinguishing features of the Young invention fully discussed, it is wholly unnecessary to burden this opinion with a restatement of these facts. It is sufficient to say that this court concurs in the conchision reached by both of these courts in these several cases as to the validity of the Young patent. It is apparent, however, that there is practically very little novelty in this invention over the prior art. It is not claimed that there is anything new in the seam uniting the barrel and the head or in a chime ring. Whatever of invention there is in the Young device consists in the method of attaching the chime ring to this joint or seam, and the distinguishing feature of that method consists in the fact that the outer flange of the chime ring is bent under the interlocking joint or seam formed by folding the metals of the barrel end and head together. It follows, therefore, that while Young is entitled to protection as to this specific construction, he is not entitled to any broad range of equivalents.
While this joint seam in defendants’ original type of construction differs materially from the joint or seam of the patent in suit, nevertheless it does form a shoulder on the outer side of the barrel under which shoulder the chime ring is clamped, not so far as in the Young invention, but far enough to perform an identical function, all of which will more fully appear by the following illustrations:
CLEVELAND BARREL
PATENT IN SUIT (Defendants’)
It is therefore apparent that the defendants’ original type is, to the extent above specified, an infringement of the patent in suit.
In defendants’ new type, the manner of attaching this chime ring to
This chime ring is held in place by thik recess or shoulder on the inner side of the flange, and pressure on the upper and outer surface, as in Reynolds, which feature of construction Young particularly sought to avoid, as appears in lines 28 to 35, inclusive, of Young’s specifications. It is clear, therefore, that the defendants’ new type of construction is not an infringement of the Young patent.
For the reasons above stated, the decrees of the District Court, both on the original and the supplemental bills, are affirmed.