229 F. 730 | 7th Cir. | 1915
(after stating the facts as above).
Considering the plethoric condition of this art, the advance made in convenience and simplicity, the easy way in which the draft strap may be removed by withdrawal of the key, together with the presumptions attaching to the grant, we hold that, in the absence of anticipat-, ing patents in the prior art, the patent would be sustainable for its specific arrangement and clear equivalents thereof. There are a number of patents in the prior art, cited by the appellant. Of these we may consider briefly the following, viz.: Timms patent, No. 532,115, granted January 8, 1895, for draft attachment; Mitchell patent, No. 517,146, granted March 27, 1894, for draft rigging; Poor patent, No. 341,601, granted May 11, 1886, for a drawbar; Crook patent, No. 436,753, granted September 16, 1890, for a drawbar; Clark patent, No. 497,264, granted May 9, 1893, for draft attachment; Brown patent, No. 515,044, granted February 20, 1894, for drawbar mechanism; Tomlinson patent, No. 545,555, granted September 3, 1895, for draft rigging; Pilcher patent, No. 616,965, granted January 3, 1899, for draft rigging (this patent was not set out in the answer); Byers patent, No. 673,419, granted May 7, 1901, for draft rigging.
Timms uses links and keys, instead of a yoke and key, located outside the sills. It has followers and ways therefor. It has integral flanges extending from its cheek plates, which inclose the followers. It is not adapted to receive a horizontal yoke, and provides no means for removing the draft gear 'in parts, but only as a whole. It fails to accomplish what Emerick was seeking to and did provide as an aid to repairs.
Poor’s patent shows a vertical yoke. Because of this fact the springs cannot be removed independently of the yoke and drawbar. It lacks the cheek plates, ways for the yoke, and the horizontal yoke. Its drawbar and yoke are connected by flanges and rivets on the yoke. Its parts are not removable, without knocking down the whole draft gear structure, and therefore it does not anticipate the Emerick invention.
Crook shows a draft gear of the tail pin type. It has no convenient means of removing the coupler bar, the springs, the followers, or the horizontal yoke. It lacks Emerick’s conception of a convenient, simple arrangement of parts which makes possible ready access to the device.
Clark’s patent is for a draft gear of the vertical yoke type. It has independent cheek castings, but has no longitudinal seats or ways in its castings for the yoke, which has to be supported on followers and drawbars. The bolt connecting the coupler and yoke is located under the floor and removed with difficulty. Emerick’s key and its application to its various slots and rests seems to require that the yoke be horizontal. The difference between Emerick and Clark is greater than the mere difference between a pin and a bolt.
Brown’s device is entirely different in principle from Emerick. It has no horizontal yoke, or cheek plates, or ways for the yoke and followers, and therefore need not be further discussed.
Tomlinson uses links which act as tension members, instead of a yoke, wffiich are supported on the ends of the keys. He has no cheek plates, nor ways for the yoke. Two followers of different designs are used. The method of operation is different from Emerick, and the device lacks the arrangement and idea of the patent in suit.
The Pilcher patent was introduced in evidence somewhat irregularly. Its yoke is riveted to its drawbar and received in threaded apertures formed in the followers, through which its arms pass. Thus the yoke cannot be separated from the followers and drawbar without the use of special tools. Its cheek plates are not provided with longitudinal or horizontal ways for the yoke. Stops in the cheek plates engage the followers, and otherwise the arrangement is such as to miss Emerick’s conception.
The nearest approach to Emerick is that of Byers. As above noted, appellant claims to be operating under this patent. It discloses in a unit structure much of what Emerick contends for. It was issued 17 days before Emerick filed his application. Appellant, however, does not use the Byers structure, but does use the two- counterpart castings
It is contended that there is no invention in making in two parts that which was before made in one. Byers never contemplated the counterpart casting, either in his present patent or in his two subsequent patents. His present device could not be cut in two and produce Emerick’s counterpart cheeks and other features of the patent in suit. It would require readjustment. The difficulty of alignments would make it practically impossible. There are many other distinctions. 'We need not, however, pursue these further. The District Court found that Emerick’s invention antedated the Byers issue. This finding was based upon the evidence of Emerick, Wright, and Darrach Emerick testified he made the models of his invention as far back as March, 1901. Both Wright and Darrach testify that Emerick disclosed his invention to them in 1899, and that it was that of the patent in suit. The District Court was convinced by this evidence, which was heard in open court. We do not feel at liberty to doubt that finding. It would have been more satisfactory, could Emerick have produced his models or drawings made in 1899; but he did not preserve the drawings and has lost the model. This we find no reason to question. The evidence is sufficient under the authorities to support the claim of the patentee. Bates v. Coe, 98 U. S. 31, 25 L. Ed. 68; Eck v. Kutz (C. C.) 132 Fed. 758.
We find no difficulty in discovering infringement on the part of appellant. It has employed the essential features of Emerick. There are several other matters urged which we do not deem it necessary 'to oonsider.
The decree of the District Court is affirmed.