164 F. 331 | 7th Cir. | 1908
(after stating the facts as above). In his opinion the Circuit Judge, deciding this case below, said:
“Patent No. 757,762, covers a two-part pintle in combination with a plurality of plates in each link interspersed upon the pintles with the plates of the adjacent links’, each plate having an aperture which is so formed as to hold one part of the pintle and allow free clearance of the'other, one part of the pintle engaging with the plates of one link only and bearing upon the other part of the pintle. These pintle parts are made to move one upon the other freely, for which purpose the openings in the plates are provided with clearance room. Patent No. 736,999 calls for a pintle device differing from No. 757,762 mainly in that it describes a three-part pintle instead of a two-part pintle. Defendant’s device substantially follows patents granted to J. M. Dodge, May 24, 1904, and subsequent to that date and shows a combination of the multiple links with a plain old style pintle and two segmental bushing plates arranged with clearance room in order to provide free sliding or hinge movement of the bushings, which move with their several links, the plates of which hear upon the bushing, and not upon the round pintle. Thus, the friction occurs between the pintle and bushing and not between the link plates and pintle. Defendant insists the bushings are a part of the several links. This would be equally true of complainant’s three-part pintle.
“The link chain belt was very old in the art at the time Morse filed the application for the patents in suit, and it was mainly to avoid the wear between the links and the pintles that he devised the joint in question. The wear of the links upon the pintle resulted in lengthening the belt, whereby it failed to engage accurately with the teeth of the sprocket wheel for which it was mainly employed, causing undue friction and ultimate ruin of the wheel or chain or both. In the case of the three-part pintle joint, Morse sought to overcome this by arranging the parts of the pintle so that the two outside members of the pintle would rock upon the middle member. Complainant now seeks to give this patent a construction which shall include hinge or sliding jnovement of the three parts of the pintle, whereas Mors’e’s action in the patent office changing the terms of the claims, taken together with the reading of the patent in all its phases as granted, utterly exclude any idea other than that the actions of the pintle parts is limited to an arrangement thereof which secures a rocking or rolling co-action thereof, in contra-distinction to a sliding or hinge action.”
And again speaking of patent No. 757,762,—
“From the record it appears, that at the time the application for the two-part pintle, Morse had it still in mind to limit its action to a rocking or rolling*333 motion, but that several years afterwards he added towing numbered 20, as shown in the patent, disclosing a two-part pintle, one part of which slides bade and forth upon the other, the two together making a cylindrical pintle, having clearance spaces. No reference is made in the claims to anything but a rocking or rolling joint, though some of the claims are silent as to the action of the pintle parts. The specifications in line 7, p. 2 read: ‘Fig. 20 is a transverse section of the joint, showing a modified form of pintle’: in line 78, p. 2: ‘Thus for each link the hearing-surface is doubled by the use of the two-part pintle and the wearing away at the pintle is thereby very materially decreased. This feature of my invention is equally applicable to a joint as shown in Fig. 20 formed of pintles so that one part of the pintle G' rubs on or (urns in the other part F', as the joint bends.’ Under the circumstances, it may be doubted whether the patent covers the device of drawing Fig. 20. However that may be, it is certain that this patent is limited to a two-part pintle, for although in lino 8, p. 1, the patentee says: -This invention relates to improvement hi drive chains for general power transmission, and particularly to chains of this class wherein the pintle consists of two parts bearing upon one another,’ etc., yet he nowhere claims or describes anything but a two-part pintle.”
It is earnestly insisted, however, that whereas in all the other claims of patent No. 757,762, the description is as of a two part pintle, in claim ten there is no such limitation, the description being “and pintles formed in separate parts”; the argument being that such description covers a three part pintle, as well as a two part pintle. But the fact remains, that the specific thing described in the patent is not a three part pintle, but is a two part pintle, and there is nothing in the descriptive portion of the patent indicating that anything else than a two part pintle, either actually or potentially, was in the mind of the inventor.
It is also earnestly insisted that though patent No. 757,762 was applied for more than two years after patent No. 7'30,999, and was allowed almost eight months afterwards, it constitutes the generic patent — No. 736,999 being for a specific invention only. In this view we cannot concur. This is not a case in which a patentee, having first made application for a patent for a generic invention, has subsequently applied for patents for specific improvements: This is a case in which a patentee, possessed of an alleged generic idea, elected to first apply for a patent for a specific embodiment embracing the essential feature of the generic idea, “the extended bearing,” and later specifying such essential feature in another specific embodiment, claims (hat the generic idea growing out of such essential feature, belongs to the later, and not to the earlier, patent. To allow this, it seems to us would be to make the second patent overlap the first, a result that involves the patentee in this dilemma, either that his second patent is not generic in the respect named, or that it is a double patenting.
On the whole case, we are content to find that the appellee’s device is not an infringement of the patents sued upon, and that therefore, the decree appealed from should be affirmed.