190 F. 189 | U.S. Circuit Court for the District of Maryland | 1911
This is a suit for infringement of reissue patent No. 12,430, January 2, 1906. It will be called the reissue. The original patent was No. 772,014, October 11, 1904. it will be called the original. The complainant, Herman Weber, lives at Colorado Springs, Colo. He is the patentee. He will be called the plaintiff. The defendant is the Automobile & Accessories Manufacturing Company, a Maryland corporation. It has a regular and established place of business in Baltimore, in this district, and there committed the acts charged to be infringements. It will be called the defendant.
The alleged infringing device originated with one John E. Norwood. At or about the time at which he .says he conceived the idea he organized a company known as the Auto Supply & Storage Company. This company he controlled. Plaintiff filed a bill against it for infringing his reissue. The Auto Supply & Storage Company went into receiver’s hands while the suit was pending. It was wound up by receivers and the defendant was thereupon organized. It is also controlled by Nor-wood. It bought the business of the Auto Supply & Storage Company. It made and used Norwood’s device. Plaintiff brought this suit.
The patented' thing is a small truck. It is to be used in handling automobiles where there is not room enough to move them by their own machinei'y in the way in which you want them to move. For brevity an automobile will be called a car. In a small or crowded garage, on docks and wharves, or the decks of vessels, on station platforms, or in freight cars it is often desirable and frequently necessary that cars shall be moved in a direction other than forward or backward. There is use for a cheap, simple, light, and easily handled tool for doing this work. The thing to be used must be readily movable in any direction. Plaintiff put his' truck on casters. When not in use, it must take up little room. Car wheels are usually' independently mounted. A truck which would hold more than one wheel would be- large,' heavy and complicated. There would be little call for a truck which could not be handled by one man. Plaintiff’s truck will hold but one car wheel. Within a considerable number of degrees car wheels turn easily. Plaintiff’s truck holds a car wheel in substantially a fixed, angle to the load-supporting portion of the truck. The truck will be useless for the purpose if the car wheel can be pulled off of it sideways. Plaintiff’s truck has a wheel-supporting channel deep enough to prevent anything of the kind. To make it useful, one man without the aid of other appliances must be able to place a car wheel upon it. Plaintiff’s truck has a projecting inclined plane up which the car wheel can be readily moved. The truck must be one out of which the car cannot without the will of the operator easily roll either forward or backward. Plaintiff dishes the platform of his truck so that when the car wheel settles down upon it gravity holds it firmly. The truck must be one which will not let the car turn over, or which will not itself tilt up. Plaintiff places the load-supporting platform of his truck adjacent to the floor, so that the weight will not rest upon a plane above-that of the casters.
Plaintiff’s trucks were put upon the market in 1904. There was at once a wide-spread demand for them. Inquiries and orders came from all sections of the United States and from many Kuropean countries. Plaintiff testified that he had sold 6,000 of them. He says defendant infringes the first, second, and third claims of his reissue. Defendant says it infringes none of them. The first claim is for “a truck comprising (I) casters, (2) a drop-frame extending transversely of the truck and connecting the casters, (3) said frame being permanently secured to and serving to maintain the casters in fixed relative positions, (4) and a fixed load-receiving platform supported by said drop-frame.” 1'he casters are found in plaintiff’s and defendant’s truck alike. In each of them a drop-frame extends transversely of the truck and connects the casters. In each of them that frame maintains the casters in fixed relative positions. In each of them there is a fixed load-receiving platform. In each of them that load-receiving platform is supported by the thing which also connects the casters. The only difference is that defendant makes the whole of its truck, except the casters, out of one piece of metal. Plaintiff usually makes his truck out of several pieces of wood or metal. Defendant’s expert admits that if plaintiff’s claim can be read upon a truck, all of which is made
It is unnecessary to quote the plaintiff’s second and third claims. It is admitted that those claims are infringed if infringement cannot be escaped by making in one piece that which patentee made in several. How unsubstantial the contention that there is any difference whether the machine is made in one piece or in three is demonstrated by this record-. Norwood has made his truck in several pieces and in one piece. Plaintiff has made his truck in one piece and in several pieces. The defendant claims that it is making its truck under a certain patent issued to Norwood. This patent is junior to'that of the plaintiff. It may contain some improvements or additions to the plaintiff’s patent. That will not justify the defendant in using what is plaintiff’s. Morley v. Lancaster, 129 U. S. 263, 9 Sup. Ct. 299, 32 L. Ed. 715.
Defendant says plaintiff’s reissue is for a different invention than that described in his original patent. If that be true, the reissue is void. It does not appear to be true. Every element claimed in the reissue is clearly shown in the original. A drop-frame and drop-frame bar in the sense and in the connection they are used in the original and the reissue mean the same thing. They are described and their use pointed out in the original as clearly as in the reissue. A loading-member extending from one end of the platform proper to a point beyond the casters is shown in the original. The use to which it is to be put is there told. One form of such loading-platform is claimed in the original. The original distinctly specifies that the bends of the frame bars shall be disposed adjacent to the floor or the ground in order to facilitate the positioning of the vehicle upon the structure. This arrangement of the bars involves the same form of construction which is described in the third claim of the reissue as a “dished load-receiving
Defendant relies upon Marvel Buckle Co. v. Alma Manufacturing Co. (C. C.) 180 Fed. 1002. There in his original patent the inventor said he wanted to make a buckle that would not tear a trousers strap, and would not form a hump. In his reissue he claimed a buckle which was less liable to be broken in the process of manufacture. This, it was held, he could not do. In the case at bar the plaintiff in the original described a truck intended to support and move a car wheel. The precise construction of the truck is both told and shown. How and why it is to be so made is set forth. Some of its characteristic features were not embodied in precise language in the original claims.
In the case of the Crown Cork & Seal Co. v. Aluminum Stopper Co., supra, the alleged infringer, Hall, had actually applied for his patent before the issue of the Painter original patent, and nearly two years before the application for reissue. Much had been done by Hall and his associate, Keizer, and by the Aluminum Stopper Company they formed to develop this invention. Much money had been spent on it and many stoppers put upon the market. What was done by Nor-wood cannot be seriously compared with what was done by Hall. The Circuit Court of Appeals for this circuit decided that all that Hall had done had not given him any rights which enabled him to escape from the charge of infringing the Painter reissue. The validity of the reissue patent in this case has been already once adjudicated in the United States Circuit Court for the District of Colorado in the case of Herman Weber v. Pikes Peak Mfg. Co. & Stean B. Mansfield (no opinion filed). The defendant contends that the prior state of the art was not laid before the court in that case, and that no such vigorous defense as has here been made was there set up. I have accordingly dealt with the record here as if there had been no prior ádjudication. Having so done, I have reached the same conclusion as Judge Lewis did in that case.
There will be a decree for an injunction and an accounting in the usual form.