247 F. 672 | 6th Cir. | 1917
The District Court, because it thought there was no infringement, dismissed the bill brought by the appellant against the appellee and based upon the first claim
By way of improvement Upon the solid one-piece glass windshield extending from the dash, of the vehicle up to a level above the driver’s head it had become common, before Lingley appeared, to’ malee the shield in two sections and to provide for the separate manipulation and adjustment of either or both sections; and it was known to be desirable to provide for tilting the upper section forward at its lower edge, so as to.provide ah open space through which the driver could see the road in front, and so as to permit the driver to' receive some air, but. not too much. It was also the common practice that this upper
In Bill, the resemblance is closer, functionally, and less, mechanically, lie also carried his upper section upon the lower one and intended to fold the former all the way down beside the latter on occasion, but he also contemplated adjusting the upper section and holding it at intermediate tilted positions. His thought seemingly was that the upper section should have almost unlimited freedom of movement and be movable forward or back, up or down, and tilted in either direction. ,To accomplish this, he provided, on the outside of his frames, a wide and deep slot continuous in upper and lower sections. Closely fitting in this slot or groove, he carried a flat metallic bar about as long as the height of either section. This bar itself was centrally slotted, and through this central slot passed threaded studs, projecting, respectively, from the lower section near its upper edge and from the upper section near its lower edge. Obviously, the slotted bar could move up and down, guided by these studs in its central slot. Upon
It is clear enough that what Ifingley did involved invention over Sprague alone, or over Bill alone; the question, when we consider both of them and their possible composite effect, as we must, is close and by no means free from doubt. If the solid arm with fixed end centers of Sprague is substituted for the slotted bar or free link of Bill, or if the threaded studs and binding nuts of Bill are substituted for the mere pivots of Sprague, we disclose at once the functional operation of Langley. Either one of these seems now a rather natural and simple change; but we are convinced that more was involved than the mere substitution of known equivalents. Sprague did not contemplate any intermediate adjustment of the upper section; he guarded against it by his locking bolts. To make his device work with the addition of wing nuts like Eingley’s, these bolts must be removed and Sprague’s primary idea forgotten. So, if we substitute the Sprague arm for the Bill link, it involves a reorganization of both, and such a solid arm would be inconsistent with the thing which Bill was trying to do. If the arm remained of Sprague’s length, so as to be pivoted
There seems no occasion for any limitation not expressed on the face of the claim. Langley was the first to make a two-part windshield in which the lower part was supported by the vehicle body and the upper -section was supported and carried by the frame of the lower section; this support being through rigid arms pivoted to the lower section near its upper edge and to the upper section near its center, these pivots being capable of being loosened to permit adjustment and tightened to hold in position. By this means it resulted that, without the aid of any surrounding frame, the upper section could be tilted forward in its lower part to provide clear vision underneath, and by-adjusting only the pivots of the upper section, and yet the whole upper section could be folded all the way down, if desired. The utility of this is not to be denied. It is true that, with the upper section pivoted at the center, some rain or snow will go in at the top, when the bottom is tilted forward; but the same thing is true of defendant’s device, and it cannot be heard to claim anything on account of this practical imperfection.
We do not understand it to be claimed in this court that defendant’s device differs essentially from Lingley, except in the one respect now to he considered; the equivalency between Langley’s -shield-supporting standards and defendant’s shield frame and supporting clips is apparent. So far as may be inferred from Lingley’s specification and drawings, he contemplated adjustment of the upper section only by tilting its lower part forward; indeed, he shows such an overlapping that inward tilting would have been impossible. In the defendant’s form, the two sections meet flush, and the bottom of the upper one can be tilted inwardly, the result of which is that a current of air is driven inwardly and downwardly. This type of ventilation became desirable after the date of Lingley’s patent, by reason of the later adoption of the fore doors, which for the first time, caused the necessity for ventilating the lower part of the driver’s compartment; and it is said that the defendant accomplished a result which Lingley intended to prevent. We are unable to give this consideration any force upon the question of infringement, because, when we observe Lingley’s claim, the defendant’s position is that infringement is avoided because, though it has used all of the claim, it has added something more. Lingley contemplated, and his first claim secured to him, a device capable of
The second claim of Lingley (not in suit) makes reference to the overlapping which would prevent inward tilting and which accomplished one of the declared objects of the invention. This is not-mentioned in the first claim, which relates to another declared object; and this alone would be sufficient reason for not importing the overlapping into the first claim, even if its broad language would justify such importation. Nor do we find any difficulty arising from the claim provision that the upper removable part is capable of being fixed “at any desired angle.” It is difficult to see how this bears on the question of 'infringement, since the defendant’s device responds to this specification even more accurately than the patent drawings do. In defendant, the fixing may be at any desired angle throughout the circumference. In the form shown in the Lingley drawing, and covered specifically by the second claim, the permitted adjustment extends through a quarter of the circumference only. The utmost effect which the presence in Lingley of the specific 'drawing and description could have is that the first claim should be interpreted as referring only to the forward angles; but this would not help defendant, which uses the same forward adjustment shown by Lingley.
We find nothing of importance in defendant’s favor to be drawn from the commercial history of the patent and the device. Plaintiff’s manager devised a windshield and plaintiff put it on the market. It was some time afterwards practically copied by the defendant. Plaintiff’s manager undertook to> get a patent on his construction, and failed to do so on account of ihe existence of the Lingley patent, disclosed to him in the Patent Office. Plaintiff then bought the Lingley patent and continued to exploit the device commercially on a very large scale. If, as is held in the Paper Bag Case, 210 U. S. 405, 28 Sup. Ct. 748, 52 L. Ed. 1122, a patent is not to be denied its reasonable and apparent validity and scope merely because its owner had deliberately withheld it from commercial use, much less can.such denial be claimed where the first owner, for unknown reasons, did not get it into public use, but where the second owner has put it into very general use. The fact that the second owner’discovered the patent in the Patent Office, and made the first move to buy it, and bought it for a small price, cannot be of much, if any, importance. The patent must stand or fall on its own merits.
We think there should be the usual decree for injunction and accounting upon the first claim, and the decree below must be reversed, and the case remanded for that purpose.
Claim 1.—In a wind screen for vehicles, a fixed lower part carried by standards and an upper movable part centrally mounted upon centers permanently fixed at the upper ends of solid arms, tbe lower ends of which are mounted upon centers permanently fixed upon the lower fixed part, and means for fixing the arms at any desired angle with the lower fixed part and means for fixing the upper movable part at any desired angle with the arms, substantially as herein shown and described and for the purpose stated.