227 F. 419 | 6th Cir. | 1915
This is an appeal from a decree dismissing the petition of the Veneer Machinery Company, which we
Both of these patents, as also the machines made and used under them, relate to and involve apparatus for edge-uniting veneers. Both patents describe and both types of machines embrace mechanical means for forcing trued edges of veneer strips hard together, and for preserving this relation by simultaneously applying adhesive tape to the upper surfaces of the strips, so as to cover and secure the union of their abutting edges.
1. Patent in Suit. The controverted portions of the machine covered by this patent may be said to comprise a table, about 4 feet in length, with two endless-chain conveyers commencing near its front end and centrally located, one immediately above and iff line with the other, which are operated lengthwise of the table and thence through a drying box for an entire distance of something less than 30 feet. These chains engage and pass over sprocket wheels, one set of which
The taping process is this: From a tape reel mounted above the forward portion of the upper conveyer the tape is carried directly downward and over a roller which contacts with another roller rotating in a glue reservoir. The tape thus having the glue distributed over its under surface is continued in the same course until it is engaged by the conveyers, with its upper surface contacting with the upper conveyer and its glue surface with the portions of the upper faces of the veneers adjacent to and also embracing their abutting edges during the passage of the veneers through the machine.
The lower conveyer and the lower sets of lateral rollers before described are power-driven and are operated at the same speed; but the upper conveyer, as also the upper lateral rollers, are operated as idlers through contact with the veneers passing between them and their
Of the 22 claims of the Boenning patent, 6 are in suit — 4, 5, 10, 12, 14, and 15. Claim 4 reads thus:
“In a device for edge-uniting two blanks of veneer or similar material, means for carrying said blanks in one direction, mechanism tending to force one of said blanks at an angle to the line of travel of said means and a distributer for placing a strip of adhesive material above the joint between said blanks.”2
A tape-adhering roller, adjustable through spring tension, is mounted over the wedge-shaped strip directly in rear of the intermediate shoe, and contacts with a roller vertically mounted in such strip. A tápe reel, mounted above the mechanism thus far described, carries a prepared tape which requires moistening to make it adhesive. In its passage from the reel, the tape is carried over moistening rollers and delivered at the end of a tape guide in front of the adhering roller. The tape is then engaged by this roller and the veneers below, and so is attached to the strips.
3. Infringement. Now, if we have fairly described the machine called for and used under the patent in suit, and also the machine used by the defendant, we think any careful consideration of the descriptions will reveal mechanical equivalence in the edge-uniting parts of the two machines. These parts may be more conveniently compared by first considering the taping features of the machines. These features are obviously similar, except Only as to the adhesive qualities of the materials used upon the tapes respectively and the consequent unimportant differences in devices used for applying the tape to the veneers. The Boenning patent calls for the application of glue to the tape, which (when used) requires at least partial drying in the machine; while the defendant uses a tape bearing an adhesive material which must be moistened before it is applied; and it is worthy of notice that the Black patent provides for a tape with ah adhesive material which has to be moistened before applying it, and then heated in pressing it upon the veneers. Defendant thus avoids the use of a heating device, such as the drying box of the Boenning patent or the heated tape-adhering roller called for in the Black patent; but the tape used by defendant is an old and well-known commercial article, and so cannot be and is not claimed to be a differentiating element of any consequence. It follows that the drying box and consequent length of conveyers called for by the Boenning patent cannot be determinative of. the present question of infringement; indeed, while the claims in suit call for conveyers, they do not specify their lengths, nor do they even mention the drying box or anything like it. In saying this, we appreciate the fact that the Boenning specification describes a drying box and the method of heating it, calling it “housing,” and also that portions of the drying box and of th.e conveyers are shown on one of the drawings; but it is manifest that the drying box and its additional length of conveyers are not essential parts of the edge-uniting mechanism specified in the claims in suit, since an admitted equivalent is secured through the use of a prepared and effective tape (not requiring the application of heat) which is readily obtainable in the market.
The question of infringement may thus be confined, and we think rightfully, to the parts of the two machines in issue which receive the veneer strips, force their trued edges firmly together, and preserve this edge relation by the application of adhesive tape. The principal contention made against the charge of infringement is that defendant’s machine has no “means for carrying said blanks (the veneer strips) in one direction” within the meaning of claim 4 of the patent in suit, nor any instrumentality amounting to a mechanical equivalent for so carrying the blanks; and we understand this to be the basis of the decision below. The theory is that an element of the patent in suit is thus omitted, without substitution. It must be conceded that a claim for a combination is not infringed if any one of the elements is omitted without substitution of an equivalent (Cimiotti Unhairing Co. v. Am. Fur. Ref. Co., 198 U. S. 399, 410, 25 Sup. Ct. 697, 49 L. Ed. 1100; Union Paper Bag Co. v. Advance Bag Co., 194 Fed. 126, 138, 114 C. C. A. 204 [C. C. A. 6th Cir.], and citations); but the contention that an element has been omitted here proceeds upon the theory that since defendant’s conveyer chains travel in converging lines, while the chains (constituting a combined conveyer) of the patent in suit "travel in a direct line, the veneer strips entering the respective machines are accordingly carried along different lines of movement; that is, the former are carried in converging directions, while the latter are carried “in one direction.” This seems to be losing sight of the facts and so giving a strained and apparently undue significance to the words “in one direction.” Admittedly, in both machines the trued edges of the veneers, throughout their lengths, are and of necessity must be
“ * * * That in any practical sense, having in mind the work which the machine must perform, the two constructions are substantially alike, and that in the actual forcing of the Wanks together and in joining them with a tape, not only are the mechanisms performing the operations substantially the same, but these mechanisms function in the same or substantially the same way. * * *”
It follows that, with one exception presently to be mentioned, the claims in suit must be held to be infringed; indeed, the defense mainly relied on in trial and argument amounts to an admission of infringement unless the claimed omission of an element without substitution is sustainable. What we have already said abundantly shows that we do not think the defense was made out. The defendant’s expert forcefully points out one or two elements which seem to have been omitted from claim 14; but, in view of the rulings upon the other claims in suit, the effect of such omission need not be determined.
The decree of dismissal must be reversed, and the cause remanded, with costs, and with direction to enter a decree finding infringement of all the claims in suit, except claim 14, and to allow the usual injunction and accounting.
The patent mentions two ways of applying glue to the trued edges of the veneers, one being to apply it before the veneers enter the machine, and the other after they have passed through it. Since neither enters into the mechanism of the structures specified in the claims in suit, we cannot think it necessary to make further reference to them.
The remaining claims in suit follow, except that the words with which each claim is commenced are not repeated: “In a device for edge-uniting two blanks of veneer or similar material.”
Claim 5: “ * * * A conveyer adapted to grip said blanks adjacent to their abutting edges and to carry the same through said device, means tending to force one of said blanks toward the other or at an angle to the line of travel of the conveyer, and mechanism acting in conjunction with said conveyer for placing a strip of adhesive material on said blanks over their abutting edges.”
Claim 10: “ * * * A table on which said blanks are placed, means for gripping said blanks simultaneously and imparting movement thereto, mechanism tending to force one of said blanks toward the other or out of the line of movement given by said means, a supply of adhesive material and a distributer acting in conjunction with said means for placing said adhesive material on said blanks above the joint between them, substantially as described.”
Claim 12: “ * * * A conveyer comprising an endless bed, and means for holding the blanks on said bed, a table on which said blanks are placed, said table being provided with an opening through which said bed moves, rollers arranged back of said table at one side of said bed with which said blanks in the movement given to them by said bed are adapted to contact, said rollers being arranged so as to force said blank toward other blanks, means operating in conjunction with said conveyer for placing a strip of adhesive material on the succeeding blanks over their abutting edges after said adhesive material has been placed on said first-mentioned blanks above their abutting edges, and means for moving said conveyer, substantially as described.”
Claim 14: “ * * * A conveyer for said blanks, upper and lower rollers standing at right angles to the line of travel of said conveyer between which one of said blanks is adapted to pass, means tending to yieldingly hold the upper rollers in contact with said blank, upper and lower rollers standing at acute angles to the line of travel of said conveyer between which the other of said blanks is adapted to pass, means yieldingly holding the upper of
Claim 15: “ * * '* A conveyer moving longitudinally of the abutting edges of said blanks, means tending to force said blanks together and a distributor acting in con.iunction with said conveyer for placing a strip of adhesive material above the abutting edges of said blanks.”
Prof. Cooley, plaintiff’s expert, after stating tile length of the front part of the machine, the table, in which the veneers are united, testified as follows upon the subject,'without contradiction: “The rest of it is dry kiln or housing. The adhesive material used was ordinary glue transferred from a melting pot to a strip of loosely woven muslin, and about 1% minutes was required from the time the veneer strips entered the machine to their delivery at the rear end. Obviously if a different adhesive material were used, the 'length of the drying apparatus could be reduced, and indeed with certain
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