274 F. 607 | 6th Cir. | 1921
The appellant (hereinafter called plaintiff) brought in the court below the usual infringement suit, based upon patents No. 1,058,250, issued April 8, 1913, on an application filed in 1911, and No. 1,047,972, issued December 24, 1912, on an application filed in 1912; both granted to Millspaugh and both pertaining to centrifugal casting. As to No. 1,058,250, which we shall call the first patent, infringement is alleged of claims 1, 2, and 4. Under the second patent, claim 1 is the only claim involved. The District Judge thought the first patent not infringed, and the second patent invalid.
Claim 1 of the first patent is sufficiently typical. It reads:
A hollow rotary member having an internal surface of definite shape surrounding the axis of rotation, a driving mechanism therefor, a filling trough, arranged to hold a predetermined amount of material, rotatably and slidably supported, projecting into said member, and means for moving said trough.
The common method of casting pipe was to provide a vertical mould for the outside and a core for the inside, and to pour the molten metal into the intermediate space. This process involved danger of imperfections, such as greater density at the bottom, imprisoned air bubbles, etc. It has long been known, at least in theory, that, if the molten metal were introduced into the center of a rapidly revolving hollow cylinder, centrifugal force would distribute the material around the interior wall of the cylinder, which would serve as a mould, and the centrifugal impetus would supply the place of the core. This would give, in theory, a tube or pipe of great perfection, with walls of the same thickness or density in all parts, and with a very regular exterior surface, since impurities are commonly lighter than the metal to be cast, and would hence remain upon the inside of the tube. The record indicates that a product thus produced was commercially unknown, and that very likely the difficulty of introducing the molten material into the inside
Millspaugli’s first invention was directed to the meeting of this difficulty. After mounting his cylindrical shell or mould horizontally, so that it could be rotated by means in contact with the outside, he provided a trough located in the axis of the shell and capable of being held at each end in axial position. It was also adapted to slide longitudinally part way out of the shell and to be rotated at least half a turn independently of the shell. In operation, the shell was put in revolution and the trough withdrawn longitudinally so that it projected slightly from the shell at one end, the trough-opening being on the upper side, and both ends of the trough being closed. Thereupon the molten metal was poured into the trough at the projecting end, and distributed itself evenly along the trough, which was then caused to slide back into the shell until it was entirely inside and axially held in position. It was then turned upside down. This distributed the material in an even body over the interior of the shell and for the length of the trough.
Weed Co. v. Cleveland Co. (D. C.) 196 Fed. 213; Parsons Co. v. Asch (D. C.) 196 Fed. 215.
It seems natural that, if defendants’ device is operated strictly according to their theory, some melted metal will remain in the hopper, and that when it is upset this metal will he spilled outside, and that the portion in the conduit may run back into the hopper, instead of inwardly into the trough, or that with slight use the conduit will become obstructed by the metal- which cools and adheres, or that the hopper will become partially clogged in the same way. If those things occur, the device then could be used, and probably would be used, in the characteristic Mibspaugh manner. It seems, therefore, that at least occasional use of this character must have been contemplated by the maker. This inference is confirmed by the fact that the axial spindle on the inner end of the trough is prolonged in a manner which was seemingly intended to facilitate this partial withdrawal while maintaining perfect axial position. The proof as to actual use also confirms this inference. There is no evidence as to the use of defendants’ machine, excepting as to a more or less experimental use at the factory where it was manufactured for them. The witness who did this manufacturing and who was apparently disinterested is somewhat confused, but seems to intend to say that in the operation which lie witnessed these suggested troubles did occur and that most of the work was done by sliding out the trough in the Millspaugh manner and filling it on the outside. We find also that an advertising “write-up” of defendants’ machine— seemingly their aulhorized statement — distinctly describes withdrawal for filling as being the intended method of operation.
When we consider the advertisement and this testimony as to what was actually done, and observe the probability of a common necessity for resorting to Millspaugh’s function, and that the defendants' form responds literally to the claim, we do not think that the charge of infringement can be escaped just because the device is capable of use in a manner which the patent can not rightly reach. It may be that the situation presents complications which make an assessment o f damages impracticable; but this record does not raise that question; an injunction, at least, is appropriate.
The case would be more difficult of decision were if not that the defendants can apparently, if they wish, so modify their device that it can not be used according to Millspaugh’s theory. Doubtless there are expedients among which a satisfactory selection could be made, if the capacity of withdrawal for filling is, in truth, not important.
The limiting clause, “arranged to hold a predetermined amount of material,” does not effectively distinguish from Kneass, and while the quick dumping, of the patent in suit, as contrasted with the slow tilting of Kneass, might distinguish, this feature of quick dumping is not found in the claims in suit.
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