195 F. 760 | 7th Cir. | 1912
(after stating the facts as above). In Western Wire Glass Co. v. Schmertz Wire Glass Co. et al., 185 Fed. 788, 109 C. C. A. 1 (a controversy between these same parties), we held that the Schmertz reissue patent was valid and was infringed by appellee’s apparatus and process for making wire glass under the Jungers patent..
We there sustained the claims now in suit by finding that:
“Schmertz was the first to conceive and devise a combination of a tabl¡e, two rolls and a wire feed which could be used as a single tool to form simultaneously and consistently the two pours and the wire into wire glass and which could be used progressively to complete the large plates that are demanded in modern buildings.”
' That definition, whether correct or erroneous, we accept in this case as a conclusive adjudication between these parties in relation to the meaning of the patent. And inasmuch as the Circuit Court received the testimony orally and as there is evidence to support the finding, we also accept that finding as a complete and aqcuráté statement of appellee’s present apparatus and method.
Appellee now uses a process in which, the “sandwich” is made by three successive and independent steps. After- the lower quarter-inch sheet is rolled, the process could be stopped and the sheet used as a commercial plate. When the wire is laid on the bottom sheet, it is not thereby gripped or held and could be lifted off. It is not until the second pour is rolled that the wire is gripped and wire glass formed. ■ This is not the progressive formation of the complete plate of wire glass by the approximately simultaneous or concurrent rolling of the two layers with the wire inclosed between them that is described and claimed in the patent. '
Schmertz’s apparatus, claimed on the same specification that described his process, of course must be the apparatus by which the process may be carried out. Appellee has in its factory the elements that could be assembled into the. Schmertz apparatus. But, according to the finding, such a combination is never made by appellee in carrying out its noninfringing process. While the south roll is spreading the lower sheet the north roll is functionless and might as well be detached. After the wire is laid the north roll, by being elevated on the trangs, is brought for the first time info co-operation with the table, and at the same time the south roll is taken out of the combination. The south roll operates in one direction, the north roll in the opposite direction-. Instead of working concurrently and co-operatively as elements in a single tool for making wire glass progressively, appellee’s rolls work independently and not even successively, for the operation of laying the wire intervenes. The par
The decree is affirmed.
