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nection with the bill. The bill alleged that the machinery and apparatus which the defendants were then using infringed plaintiff's patents. If so, and said machinery and apparatus had been used by defendants continuously for 22 years last past, then they anticipated plaintiff's patents by more than 15 years. With this construction we agree. We cannot agree, however, with the contention that the meaning was that the identical machinery and apparatus which the defendants were then using had been used by them continuously for 22 years last past. It meant no more than that machinery and apparatus substantially of the same character as that which they were then using had been used by them continuously for 22 years last past. It was treated in the lower court as admitting of proof of the use of other machinery and apparatus than that which they were then using, but substantially of the same character. Nor is it contended here that it did not admit thereof. The contention that it has such limited meaning is put forward only as affecting the credibility of the defendant W. E. Buser, who made oath thereto in the way hereinafter indicated. Nor was the allegation that such machinery and apparatus had been continuously used by them a material part of the defense. It was made out if the evidence warrants the conclusion that the defendants had, prior to the plaintiff's invention, used machinery and apparatus substantially of the same character as that they were then using; i. e., that anticipated, as that infringed, plaintiff's patents.
Appellants seek a reversal of the decree appealed from mainly on the ground that this defense was established by the evidence, and that the lower court erred in not so holding. In considering whether this position is well taken, it is to be borne in mind that the rule is that, in order to invalidate a patent by oral testimony of prior invention, it must be such as to convince one beyond a reasonable douht of that fact. Washburn & Moen Mfg. Co. v. Beat 'Em All Barbed Wire Co., 143 U. S. 275, 12 Sup. Ct. 443, 36 L. Ed. 154. This court, in the case of American Roll Paper Co. v. Weston, 59 Fed. 147, 8 C. C. A. 56, invalidated a patent on oral testimony of prior use. And in the recent case of Columbus Chain Co. v. Standard Chain Co. (C. C. A.) 148 Fed. 622, it refused to uphold a later patent on oral testimony as to invention by the patentee thereof prior to an earlier one. Is, then, the evidence in this case sufficient to satisfy one beyond a reasonable doubt that plaintiff's patents were anticipated by defendants' prior invention ?
It is certain that they were not anticipated by the construction and use of the machinery and apparatus which the defendants were using when the suit was brought. It consisted of a single tufting machine for making tufted couch seats, which they had constructed and put in use only a short time prior thereto. It was the machine described in patent No. 711,382, issued to defendant W. E. Buser October 14, 1902, and to which it related. Just how long it had been in existence and use does not definitely appear. Said defendant, in his testimony given in April, 1903, stated that before its construction they had purchased a Kelly machine, and that they had purchased it some three or four years before the time he was testifying; and in question put to him on crossexamination it was assumed that he had theretofore testified that said machine had been "built two or three years ago," which assumption was
permitted to go unchallenged. There is no other evidence shedding any light on the question as to the time when said machine was constructed and put in use. It is to be inferred therefrom that it could not have been much, if any, earlier than 1899 or 1900.
But the evidence was not confined to this machine. There was evidence tending to show that said defendants had invented, and the defendants had put in use, as much as 22 years before the answer was filed-i. e., in 1880—a smaller tufting machine for making tufted lounge backs. It was substantially the same machine as said larger and later one, embodying substantially the same ideas, and clearly anticipated plaintiff's patent. It consists of a mold board, plaiters, sharp metal points on wooden pins, and a follow board. The mold board is an open box, partitioned by metal strips into separate compartments or pockets, with corner posts, or upwardly projecting tucking devices, at the corners of the pockets, except at the outer edge. The corner posts are hollow, and the base of the mold board has openings in it answering to the holes in the posts. But those holes and openings are not for the purpose of passing buttons through them, nor are they adapted thereto. Their purpose is to permit the passage of the sharp metal points on wooden pins, heretofore referred to. The corner posts are recessed so as to provide a seat for the head of the buttons. They have no flutes on their outside. The plaiters are recessed, and have downwardly projecting points at one end adapted to straddle the corner posts. The sharp metal points on wooden pins are adapted to pass through the openings in the posts and base of. the metal board, and to pierce the two covers. The follow board is not a single board, but a framework with slats running crosswise and spaces between them.
It is thus seen that this machine has the combination of a base with upwardly projecting tucking devices, and of detachable plaiters recessed, and with downwardly projecting points adapted to straddle said devices, clearly anticipating, if earlier, claims 5 and 6 of the Pitner patent. Likewise, in the sense of the Freschl patent, its mold board has an imperforated base plate—i. e., it does not permit the passage of buttons through it—with a plurality of upwardly projecting tufting posts attached rigidly thereto, each post, when the sharp metal points on the wooden pins are in place, being provided with an upwardly projecting pointed pin held against lateral displacement, and adapted to pierce both covers of the cushion, and, when they are not in place, being provided with a seat for the head of a tufting button adapted to retain it against lateral displacement during the process of forming the cushion, and releasing it when removed from the mold board-clearly anticipating, if earlier, the Freschl patent.
The only difference between this and the larger or later machine is that the latter embodies the improvements covered by patent No. 711,382, issued to W. E. Buser October 14, 1902. Those improvements relate to the button holders, to the plaiters, and to the outside portion of the frame. The button holders are solid, and have staples in their ends for holding the button. The plaiters have downwardly projecting U-shaped wires. Otherwise the two machines are alike. The question put, then, narrows itself to this: Is the evidence sufficient to convince one beyond a reasonable doubt that said smaller machine was in existence and use by defendants prior to plaintiff's inventions ?
The evidence tending to establish that it was consists of the machine itself, the testimony of the defendant W. E. Buser and of two of defendant's former employés, Charles S. Wachenschwenz and August Rumph, in regard thereto, two photographs of the machine, and the testimony of said defendant, of one W. A. Richardson, and of said Wachenschwenz in regard thereto, and a catalogue issued by the defendants. The machine itself was misplaced at the time of the preparation of the case and was not exhibited to the witnesses during the taking of the testimony. It was subsequently found and introduced at the hearing as the machine to which the evidence related. It looks old and genuine. There is nothing in its appearance to negative the fact that it had been constructed and put in use in 1880 as claimed.
The defendant W. E. Buser testified that he invented and made the machine in 1880 and defendants put it in use at that time. As to how long they continued to use it his testimony is somewhat indefinite. He stated that their main business was making lounges and their work was mainly plain work, that they had been doing tufted work more or less ever since they had been in business, that they had done very little such work, and that they used said machine for years continuously whenever they had any demand for that kind of work. At the conclusion of his testimony in chief, he testified as follows:
"Q. I will ask you how long you used the smaller machine that you conceived 18 or 20 years ago, the. tufting machine?
"A. Six or seven years ago.
"Q. How long have you used this larger machine on which you now make couch seats?
"A. I mean the larger machine or model? "Q. No; the large machine?
"Mr. Murray (Plaintiff's Counsel): The patent is dated-it is in evidence in the case October 14, 1902.
"Q. Is there anything else you want to say about this? "A. I don't know of anything else.”
It is possible that witness intended to be understood as saying that he had used the smaller machine until six or seven years ago, or that he used it six or seven years. Appellants' counsel contends that his meaning here was that they used the large machine—the one shown in the patent—six or seven years ago, and he did not say how long they used the smaller machine. But, in view of the testimony as to when the larger machine was made and put in use, heretofore referred to, it can hardly have this meaning. The best we can make out if it is that the witness intended to be understood as saying that they had used the smaller machine "until six or seven years ago," the stenographer failing to catch the word "until” and using the word “I” instead of “You” in the next answer; that being an interrogatory as appears from the interrogation mark at its end. This conforms to his former answer that they had used it continuously for years whenever they had any demand for tufted work.
The two former employés of defendants, Charles S. Wachenschwenz and August Rumph--the former of whom worked for defendants about 6 years, beginning in 1880, when he was 13 or 14 years of age, and the latter of whoni, then a locomotive engineer and having been such for 8 years, worked for defendants about 2 years, beginning in 1882 or 1883, when he was about 15 years of age-each testified as to the use of the machine during their employment in making lounge backs in tufted work, and that they worked in connection with it in pulling or picking and loosening the moss for it. As stated, when said defendant and those two witnesses testified, the machine was misplaced and not exhibited to them. Each of these three witnesses described the machine and the method of its use; said defendant going into great detail. Their description is lifelike and realistic, and conforms to the machine. Certain detached parts of said machine, to wit, a corner post, a metal strip, and a plaiter, claimed to have been used in connection with the machine and which had not been misplaced, were identified by these three witnesses.
One of the two photographs of the machine is of the mold board, with plaiters in place and lying on it, and the other of the follow board. A comparison of these two photographs with the machine itself shows that they are photographs thereof. This is not questioned. The defendant W. E. Buser testified that he had the photographs taken about the year 1881 by F. A. Simonds, a photographer then doing business in Chillicothe, Ohio, and who died July 13, 1884. Said W. A. Richardson, who worked for said Simonds from December, 1871, until his death, testified that he took the photographs himself in January or February, 1881. And said Wachenschwenz testified that in 1880 or 1881 he carried the machine to Simonds' gallery to be photographed, and identified the photographs. They are mounted on Simonds' cards. The defendant W. E. Buser gave as the reason for having the photographs taken that it was his habit to have photographs taken of his machines as "keepsakes," and both he and Richardson testified to an incident in connection with the taking of the photographs involving a certain Dr. Clough, a friend of the former. The catalogue, which shows on its face that it was issued whilst defendants were doing business at 22 Paint street, Chillicothe, from which they moved to another place in said city in the year 1885, has a cut in it of a lounge with a back in tufted work.
Such, then, is the evidence in support of the defendants' claim that said machine was invented and put in use as early as 1880, and more than 15 years prior to plaintiff's invention. In the absence of considerations or circumstances affecting its force or opposing evidence, is is sufficient to convince one beyond a reasonable doubt of the correctness of that claim. There is no opposing evidence. Reliance is had simply on certain considerations and circumstances which it is thought affect and weaken the force of said evidence to the extent of raising a reasonable doubt. We will take them up in detail and determine their effect. As to the catalogue, it is suggested that it shows no more than that defendants were making lounge backs in tufted work prior to 1885. This is true. For aught that it shows, defendants may have made such lounge backs prior to that date by hand, the old way of making tufted work before the day of machines. But this fact is to a certain extent a corroborating circumstance, not of great weight, vet of.
As to the photographs, it is claimed that they present evidences
on their face that they were not taken as testified to by defendants witnesses, some of which conduce to show that they were taken by ar amateur, and not by a professional photographer, and others that they have been made for the purposes of this case. The evidences of amateurishness relied on are that neither of the articles photographed appear in the center of the paper; that the print of the follow board was too long for the card on which it is mounted, and part of it had to be cut off, and that both prints are irregularly cut along their edges. These criticisms are well taken. But this condition of things may be accounted for by the fact that they were taken, not by Simonds, but by Richardson, his employé, who, though he had been working for Simonds about 9 years, was then possibly not more than 21 years of age, and that the things photographed may not have been regarded as calling for much care. The evidences of fraud relied on are that the cards are soiled and the prints not; that in some instances the soiled marks extend underneath the prints, where they can be raised from the cards; and that the edges of the photographs appear as though they were cut in recent years. We have examined the photographs carefully, and are unable to find any soiling marks under the prints, or any evidences of recent cutting. Nor can we say that there is an entire absence of soiling marks on the prints. In so far as they present a fresher appearance than the cards on which they are mounted, this may be, and no doubt is, due to the nature of the different materials. The surface of the cards is calculated to be soiled much sooner and greater than the prints.
Then, again, it is said that the photographs show nicks and stains on the mold board and follow board, and that the photograph of the mold board shows certain of the partitioning strips to be irregularly placed, and that the mold board and follow board show exactly these same peculiarities. From this it is argued that the machine could have been used but little, if any, after the photographs were taken. If they had been used much, those peculiarities would have been effaced or changed. This, however, conforms to the testimony as to their use. The defendant W. E. Buser testified, as heretofore stated, that they were very little used, as they did not do much tufting work. It is thought that the testimony of Richardson and Wachenschwenz as to the taking of these photographs, and the time when they were taken, is affected by the fact that defendants were in the habit of having machines and manufactured articles photographed at Simonds. Just how much photographing they had done there is not shown with any definiteness. But there is no evidence that Richardson took any other photographs than those in question, or that Wachenschwenz carried any other machine or any manufactured articles to be photographed. The date when they were taken is immaterial. If taken at any time whilst Richardson was in Simonds' employ, or Wachenschwenz in defendants,' they prove the existence of the machine long prior to plaintiff's invention. But Richardson fixes the time by the fact that they were taken just after Simonds had moved from one place of business to another, and the time testified to was at the beginning of Wachenschwenz's employment.