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"In any event, however, the pivots at the upper ends of each pair of arms should fall in a line substantially at right angles to the plane of the back."

The result is that the very essence or gist of each of the claims in suit is, not merely two pairs of arms, or one pair of arms, the arms thereof being of substantially equal length, pivoted, the one end of the pair to the frame by pivots arranged in a horizontal plane, and the other or upper end of the pair pivoted to the end of the back by pivots arranged in any convenient manner with reference to the plane of the back, but a pair of arms having the one end of the pair pivoted to the end of the frame near the center thereof by pivots arranged in a horizontal plane, and having the other or upper end of the pair of arms pivoted to the end of the back of the seat by pivots, not a pivot, "arranged in a plane at right angles to the back," or at least in a line extending at an angle to the plane of the back substantially as set forth,” which means “in a line substantially at right angles to the plane of the back," as we have seen by reference to the specifications. In short, the very gist of each claim is the place, mode, and manner (angle) in which the pair of arms, one pair at least, is pivoted by pivots to the frame, and especially to the end of the back of the seat. And here is the conception, the patentable invention, or novelty of Aze and Gilfillan as disclosed in the Wheeler seat. Take this from either claim in suit, and it falls, for we would have an old combination of old elements; old elements combined in substantially the old way, to produce the old result. Retain this conception, and pivot the upper end of the pair of arms to the end of the back of the seat by pivots arranged in a plane at right angles to the back, or substantially at a right angle thereto, and we have old elements; but they are combined in a new way, and they operate in a new way, to produce an old result, but they produce it much more quickly, easily, certainly, in a much better way. This is patentable invention.

In the Stillwell and Brundage seat of the prior art and in the Gordon and Degener movement applied to a car seat, we have two arms at each end of the seat, a pair of arms, the lower ends of the arms being pivoted to the frame, the one arm to the arm of the seat, and the other to the end of the frame proper; the pivots being in a perpendicular line. The other or upper ends of these arms are pivoted to the end of the back of the seat, but in a line in the plane of the back, not at an angle therewith, and the result is that when the back of the seat is carried across, unless constantly supported by the hand of the operator, it will fall down when half way over, as all the pivots of all the arms are then in a line with the plane of the back. This defect in the prior art was obviated by the Aze and Gilfillan patent.

In close cases, the commercial success of an alleged invention sometimes turns the scale in determining whether or not patentable invention is disclosed. In all cases the great commercial success of the patented device, and the fact that it supplants or supersedes other devices of the same kind used for the same purpose, are evidence of patentable invention, novelty, and utility of no mean order or low degree. These facts are in many cases persuasive evidence of a most valuable conception.

In this case, I have examined the file wrapper and the prior art to ascertain if there is any suggestion in the prior art of this mode of pivoting the arms to the back of the seat. I am unable to find it in this or any analogous art. I have also examined the file wrapper critically to ascertain if the patentees in any way limited their real 'invention or its application. It seems to me they should be entitled to the broadest range of equivalents. As the claims were first filed, the one end of the back of the seat was left without support, swinging in the air, or means for causing the back to move as a whole, both ends of the back in unison and with adequate support after being moved from the one side to the other. Hence arms or some equivalent at each end of the back should have been included, and were required by the Patent Office, and, later, included. This amendment calls for a pair of arms at each end of the seat. But does this, in such an invention as this, permit without infringing the substitution of an equivalent at one end-an equivalent which performs all the functions demanded of that pair of arms, and which is also the equivalent in name? That is the question in this case. The criticism can be made that defendant's substitute is not "a pair of arms." But this is hypercritical. Primarily "pair” means "two things of a kind, similar in form, identical in purpose and matched or used together." But secondarily, the word means "a single thing composed essentially of two pieces or parts which are used only in combination, and named only in the plural." A pair of shears or scissors has two blades, but one may be shorter than the other, and they are of different shape, etc. The Patent Office itself subsequently set that question at rest, as we shall see.

The defendant uses a seat which is a “Chinese copy" of complainant's in every material respect, except one. In that respect, he has substituted an equivalent pair of arms which performs every function of the pair of arms pivoted as described in the patent for which it is a substitute. This substituted pair of arms is pivoted somewhat differently, but, in substance, operates in precisely the same way. Its object, purpose, and result is the same. This fact was subsequently declared by the Patent Office. Defendant has a pair of arms at each end of the seat back, but in the equivalent pair, placed at the end next the side of the car, it has a pair of arms, one of which arms is much shorter than the other, and the lower end of this short arm is not pivoted to the end of the frame. The upper end of this pair is pivoted to the end of the back of the seat, but not by two pivots, only one, and these arms, instead of being side by side in a line at right angles with the plane of the back, are movable on the same pivot, and are arranged in a line with the plane of the back when upright; that is, the short one is immediately in front of the longer one as we look at the seat from the aisle of the car, or behind it as we view the seat from the opposite direction. This long arm of this pair is pivoted to the frame of the seat near the center of the end, and is connected with and acts and moves synchronously with the pair of arms at the other end, and operates or acts to hold the end of the back to which it is pivoted in position, and carry it without bend or wobble to its new position on the other side of the seat. The short arm of this

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pair moves synchronously with the long arm thereof, but does not maintain or have the same inclination. The two are parallel onļy when the back is exactly upright on its way from the one side of the seat to the other. When the back has been changed-that is, when it is in position for use by the occupant of the seat—the lower end of this short arm, being pointed, fits into a socket on the frame of the seat, and, acting in connection with the long arm, supports and holds the end of the back to which attached firmly in position. I repeat: The objects, purposes, and functions of the substituted pair of arms are precisely those of the duplicate pair of the Wheeler seat made under the patent in suit. The two pairs of arms in both seats are made to operate or act in synchronism by substantially the same means or connections, although the Curwen patent which covers these means, and to which attention will be called later, is for an improvement such means. In short, the invention of the Curwen patent, as we shall see, is for improved means for connecting the arms at the two ends of a car seat and causing them to work in unison, and nothing more.

It is true that, in the broad sense, Aze and Gilfillan were not pioneers in this art, or in this branch of the art relating to "walk over" backs. They were improvers, and they made a long and useful step in advance. The Brill Company, really defending this suit, and now making and using and selling with their cars, equipped therewith, the alleged infringing seat, formerly used and equipped the cars made and sold by it with the Wheeler seat. That company acquiesced in the validity of the Aze and Gilfillan patent for years, and recognized the utility and commercial value of the seats made in accordance with it; but this fact does not estop them or preclude them from using any car seat they see fit to use, provided it does not infringe. That company had the right, with all other persons, to invent, if it could, or secure an improved car seat, or to substitute an inferior one, but not to appropriate the Aze and Gilfillan invention. The fact is mainly pertinent as bearing on the novelty and value of the real conception and patentable novelty disclosed in the Wheeler seat. Aze and Gilfillan were pioneers in walk over seats, having a pair of arms with the upper ends of the pair pivoted to the end of the back of the seat by pivots arranged in a line substantially at right angles to the plane of the back, or in a walk over seat having two pairs of such arms so pivoted and also pivoted to the frame of the seat. A pair of arms at each end of the seat, and single arms at each end, were old in the art, and, as stated by the Patent Office in considering the Curwen application subsequently, "there was no invention in combining the two.” In that particular feature, they were pioneers. In that feature they or the complainant are entitled to a fair range of equivalents. My attention is invited to a seat having the Stillwell and Brundage devices and the Gordon and Degener mechanical movement added and applied or pivoted to the back of the seat and the frame in the same manner Aze and Gilfillan apply it. Aze and Gilfillan did not patent a mechanical movement. The trouble with the illustration is that it comes too late, long after Aze and Gilfillan had made their invention and obtained their patent. Having pointed the way, it

now seems simple enough. But it is contended that as Aze and Gilfillan were merely improvers, and defendant's seat can be differentiated from complainant's, the charge of infringement cannot be sustained. Cimiotti Unhairing Co. v. American Fur R. Co., 198 U. S. 399, 414, 25 Sup. Ct. 697, 49 L. Ed. 1100; Kokomo Fence Machine Co. v. Kitselman, 189 U. S. 8, 23 Sup. Ct. 521, 47 L. Ed. 689.

It is settled law in patent cases that:

"When an inventor seeking a broad claim which is rejected, in which rejection be acquiesces, substitutes therefor a narrower claim, he cannot be heard to insist that the construction of the claim allowed shall cover that which has been previously rejected." Computing Scale Co. of America v. Automatic Scale Co. (Supreme Court of U. S., Feb. 25, 1907, not yet officially reported) 27 Sup. Ct. 307, 51 L. Ed. -; Corbin Cabinet Lock Co. v. Eagle Lock Co., 150 U. S. 38-40, 14 Sup. Ct. 28, 37 L. Ed. 989; Hubbell v. United States, 179 U. S. 77-80, 21 Sup. Ct. 24, 45 L. Ed. 95, and cases there cited.

Still "the patentee is entitled to a fair construction of the terms of his claim as actually granted." Hubbell v. United States, supra. It is a matter of course, in view of the authorities cited, that in order to infringe the defendant must have and use a car seat having a pair of arms at each end thereof, or an equivalent, and these pairs of arms must be pivoted to the back in substantially the manner described, or an equivalent manner, and also to the frame of the seat. I do not understand that these cases hold that, where an inventor substitutes and accepts a narrower claim than the one first presented, that having been rejected, he is confined to that precise form allowed and bars himself from the benefits of the doctrine of equivalents, unless he has used language which does confine him to the precise form described. He may limit himself in the use of equivalents, of course. He is not entitled “to any considerable range of equivalents, but is practically limited to the means shown by the inventor" (Computing Scale Co. of America v. Automatic Scale Co., supra); but no one can take his invention bodily and escape the charge of infringement by using it in a different form merely, or in connection with some other thing which in no sense modifies or is modified or affected by it. If that can be done, then every inventor whose invention is new and resides wholly in some one element of his claim loses all right to the doctrine of equivalents, if he makes the claim for that element too broad to begin with, and is required to make it narrower to accord with his actual invention, and does make it narrower to express his real invention. And in such case, if that be true, an infringer may take it, the element containing his invention, bodily and combine it in a claim with other old and equivalent elements, all together working or operating in the same way as the inventor's conrbination to produce the same result sought and obtained by the true inventor. The greater should include the less, and, while Aze and Gilfillan cannot claim the seat with only one pair of arms, they may claim the seat with two pairs of arms, any two pairs of arms that embody and use their true invention. If there has been no amendment or narrowing of the claim in respect to its very essence, the "pith and marrow” of the invention disclosed in the claim, if there was no issue as to that, and the amendments were made in reference to an incidental

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matter, something that would perfect the claim or device and make it more useful or operative, then there is no restriction of limitation on the rights of the patentee as respects equivalents for some part of his device when made in accordance with his patent.

Reece Co. v. Globe Co., 61 Fed. 958, 10 C. C. A. 194; United States Co. v. Sturtevant Co., 125 Fed. 384, 60 C. C. A. 244; Winans v. Denmead, 15 How. (U. S.) 330, 14 L. Ed. 717. The law is to protect meritorious patentees and promote justice.

We return, therefore, to the question whether or not the defendant's seat is so differentiated from complainant's that it must be held the charge of infringement is not sustained. Defendant has not dispensed with a pair of arms at either end of the seat. It has substituted another pair at one end, and at the other end uses an exact duplicate of the complainant's pair of arms, including the pivoting to both frame and back, and has, in so doing, appropriated the invention of Aze and Gilfillan, now the property of complainant. It connects these two pairs of arms in the same way complainant does, and so that they operate synchronously. It by no new or patentable device, but by an old socket attached to the frame, dispenses with the necessity of absolutely pivoting the short arm of the substituted pair to the end of the frame of the seat, as when this short arm sets into the socket, as it necessarily must, being carried to it by the action and movement of the first pair of arms, pivoted as are complainant's, it performs all the functions, the very function, of the second arm in complainant's pair attached to and used at that end of the seat. Pivoted to the end of the back at its upper end, and seated in the socket at the other, this short arm is a complete substitute for the second arm of the pair at that end and its full equivalent. The long and short arm forming this substituted pair are each pivoted to the end of the back, but not by two pivots arranged in a line at right angles with the plane of the back, but by one pivot in a line at right angles with the plane of the back, and, of course, in a line drawn at any angle with the plane of the back. The substituted pair of arms performs every function required or demanded by the Patent Office of the second pair of arms when it insisted on a pair of arms at each end of the seat. The Patent Office so held and declared subsequently in the following language:

"In claim 1 it is evident that if one link (arm) of Aze is left off the back will operate the same as if it is on, although it might not operate so smoothly."

The occasion of this will be stated later. The Patent Office did not demand that the second pair of arms should be pivoted in any particular manner. The demand was:

“Arms at each side (end) of the back should also be included. Claim 6 (of which I have given the history, and which became claim 3 in the patent as finally granted), when amended to include a pair of arms at each side (end) of the back, may be allowed."

As to claims 5, 7, 9, and 10, “these claims should each set forth the arms at each side of the back.” So of the other claims. No importance whatever was attached to the mode or manner of pivoting the second pair of arms to the back or frame, and nothing was said

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