259 F. 575 | 6th Cir. | 1919
Suit for infringement of United States patent No. 918,633, to Wold, April 20, 1909, on road graders. The bill includes also a charge of infringement of a road grader patent to Clemons, No. 924,966, also issued in 1909. In the District Court the Wold patent was held not infringed, but claims 2 and 17 of the Clemons patent were held infringed. Defendant alone appealed from the interlocutory decree, which was here reversed so far as the Clemons patent is concerned. Zeig v. Russell, 249 Fed. 56, 161 C. C. A. 116. Plaintiff now appeals from so much of the final decree below as holds the Wold patent not infringed.
The general structure and mode of operation of the Wold smd Clemons machines are.the same. Wold, who is subsequent to Clemons, differs from the latter in but two respects material here: (1) In having in substance the automatic feature just referred to, which defendant has, but which Clemons has not, and whose holding means we held gave Clemons invention over the patent to Mendenhall, issued 25 years earlier; and (2) in respect to the scraper blade carrying frame contained as an element in the claims of the Wold patent in suit, which are Nos. 5 and 9, and which are printed in the margin.
Conceding, for the purposes, at least, of this opinion, that the claims in suit contain invention over the prior art, the question of infringement ultimately depends upon whether defendant has the elements of a “frame pivoted [on the drawbar]” and “a scraper blade carried by said frame.” The frame structure described by the specification is sufficiently shown by so much of Fig. 1 of the patent drawings as relates to the operative portion of the machine:
The specification describes the frame element in question and its relation to the scraper blade as follows:
“A rectangular frame, * * * composed preferably of a forward channel bar 11, a rear channel bar 12, and end bars IS connecting them. The rear bar 12 has a central pivotal connection with the drawbar S through a bolt Ilf. The forward channel bar has a series of holes 15 therein, and a pin 16 is adapted to fit into one of said holes and into a slot 17 provided in the drawbar 8. * * * Angle bars 18 are secured to the end bars IS, and*577 braces 19 extend from these angle bars to bolts 20, which pass through the webs of channel bars 21 and form the pivots therefor on the frame and particularly on the rear bar 12 thereof. The scraper 22 is rigidly secured to the angle bars 18 and braces 23 extend from said scraper to the bar 12.”
In brief, the “frame” of the claims in suit, as described in the specification, is composed of front and rear bars connected by end bars, and as a unitary structured directly and pivotally connected with the drawbar; the scraper blade is carried directly by this frame. A self-contained frame and a scraper blade carried thereby are important and undisputed features of plaintiff’s patent. Each of the 13 claims contains them. Defendant’s machine, as shown by reference to the cut in our former opinion (249 Fed. at page 59, 161 C. C. A. 116), lacks this self-contained frame feature, unless, as plaintiff contends here, the equivalent of that frame is found in the curved, partly D-shaped front-piece (attached to the drawbar), in connection with the scraper blade attached to the rear end of the curved front piece; the scraper blade thus closing the figure D formation.
“In an overcrowded art, where a broad generic invention is not possible, a defendant who omits altogether one element of a combination cannot be held as an infringer, even though he makes another element do the double*578 work.” Underwood Typewriter Co. v. Royal Typewriter Co. (C. C. A. 2) 224 Fed. 477, 479, 140 C. C. A. 163, 165.
Defendant has, in our opinion, in substantial effect so constructed his device as to dispense with the necessity of the function of plaintiff’s blade-carrying frame. The case in this respect is not without analogy to that considered by us in Detroit Showcase Co. v. Kawneer Mfg. Co., 250 Fed. 234, at page 238, 162 C. C. A. 370. The situation is not, in our opinion, analogous to that found in Bundy Mfg. Co. v. Detroit Time Register Co. (C. C. A. 6) 94 Fed. 524, 537, 36 C. C. A. 375. What we said by way of distinguishing that case from the situation involved in Ohmer v. Ohmer, 238 Fed. 182, at page 193, 151 C. C. A. 258, applies here. In our opinion defendant does not infringe.
We find it unnecessary to consider the Hanna patent.
The decree of the District Court is affirmed.
“5. In a grading machine, the combination with the drawbar, of a frame pivoted thereon, a scraper blade carried by said frame, bars pivoted at their forward ends, crank axles journaled in said bars and having carrying wheels, means for oscillating said crank axles, means connecting said bars with one another to hold them in parallel relation.”
“9. In a grading machine, a frame and a scraper blade carried thereby in combination with pivoted bars and crank axles journaled therein, carrying wheels for said crank axles, means connecting said bars with one another to insure their simultaneous lateral oscillation and means for oscillating said crank axles.”