94 F.2d 79 | 2d Cir. | 1938
This is an appeal from a decree, dismissing a bill in equity to enjoin infringement of Patent, No. 1,996,458, issued to Andrew J. Clancy. The district judge found that the invention had been anticipated by a prior use, and that the claims were invalid for that reason; we agree, and shall confine our discussion to that issue. The invention was of a crane, mounted on a motor car, an A-shaped' boom being pivoted at either side of the chassis and held at a fixed angle to the horizontal by one tension, and one compression, member. The usual cable led from a drum at the rear of the motor over the top of the boom and ended in a hook to engage the end of the sling which holds the draught. At the apex of the boom was a “dished or flanged roller” or sheave, unusually wide, wide enough to receive the hook, especially designed for that purpose, and to allow hook and sling to be drawn over it and .as much farther as to bring the draught close up to the apex. In this way it has become possible to raise draughts much higher than by those cranes in which the hook must stop at the top of the boom, and in which the full length of the sling must therefore intervene between it and the draught. The invention has proved of great service in stacking goods upon piers, and has resulted in much saving of labor. We shall assume that it was patentable over the printed art which went before it; we need discuss only one of the two uses which the judge found to have anticipated it.
Clancy filed his application on August 1, 1934, and in 1926 or 1927, the Otis Engine Company, a machine manufacturer, made and delivered several cranes which embodied a wide sheave at the apex of an A-shaped boom, mounted upon a motor; this sheave was intended to receive and pass along the hook at the end of the cable and so much of the sling as might- be convenient. There can be no question that it was really what the defendant says it was, i. e. a complete anticipation; and the case resolves itself into the sufficiency of the evidence to prove its date. Presbry was the president of the Otis Company; so far as appears, he had no bias. He was shown a photograph of a crane which had an A-shaped boom, at the apex of which was a sheave or roller so wide as to leave no doubt that it was intended to receive the hook at the end of the cable. It is true that the swivel end of the arms was not fastened to the chassis of the motor, but to a column rising above its body; but the invention cannot depend upon that. Presbry-identified this photograph as that of a crane he had built for Turner & Blanchard, stevedores, “probably in the fall of 1926”; and he described its use, which was precisely that of Clancy’s. Next he identified the blueprint of a crane which bore date, March 24th, 1927; but as this
Thus, it does appear that the evidence is in dispute, and if that is final, the defendant has not proved its defence. It is not final; for, however exacting the burden upon a defendant in such cases, in the end the answer must depend upon the persuasiveness of the evidence taken as a whole. There can of course be no doubt that an Otis crane with narrow sheave was in existence in March, 1927; the date on the blueprint was not forged, and all the witnesses agree so far. The issue is thus narrowed to whether the wide sheave was part of its equipment — standard equipment, as Sustman says. As to that we have the photograph which is conclusive, provided it went back of August 1, 1934, Clancy’s filing date. It is quite true that there is no documentary confirmation as to when it was taken; Sustman could only rely upon his memory. But the incredulity which should think it possible that it was taken after August 1, 1934, would be very extreme. Presbry and Blanchard must be in fault as to their recollection, and Sustman must have deliberately perjured himself. He swore that at the time of trial, June, 1937, he was working in a public library, and that he had left the Otis Company “about 1931.” We cannot suppose that he made the photograph after he left; if he did, it was no lapse of memory that made him say the opposite, but a deliberate fabrication; memory would not play him as false as that, and moreover, the cranes had been discarded by 1931. He had not the slightest motive to fabricate; it would be a gratuitous injustice so to impugn his word. He might indeed have taken the picture at any time while he was still with the company ; but that will not serve; he could not have been uncertain as to when he left by three years; “about 1931” cannot include after August 1, 1934. We have indeed said that in proving a prior use it is nearly necessary to stand upon contemporary documentary evidence (Block v. Nathan Anklet Support Co., 2 Cir., 9 F.2d 311), but we have never gone so far as to require so much absolutely. Here the photograph is documentary evidence, and the only missing fattor is its date; it appears to us that to question its existence before August 1, 1934, would be an excess of scepticism unjustified by any canon; more than is demanded even in criminal prosecutions. The argument that the crane was an unsuccessful and abandoned' experiment needs no answer.
Decree affirmed.