Lapas attēli
PDF
ePub

the form shown in Fig. 23 the controller itself has no jogging motion, but the mechanism which effects the connection with the cutter carrier is more complex than in the other forms. The fact is that the projecting finger P shifts the part g2 into position to be operated upon by a projection g3 on the lever H, which has a jogging movement, and that the jogging movement of this lever completes the movement of the cutter carrier necessary for engaging the latter with the depressor. The jogging of this lever in the other direction permits the cuttercarrier to be released by the depressor. This also is now conceded by the complainant. Here the controller is really a compound one, to whose efficient action jogging motion is essential. As to the general forin of Osterhout's machine, as shown in Fig. 2, complainant also concedes that the jogging movement would be necessary for disengaging the parts if a multiple cutter was used, but insists that this would not be so when a single-stroke cutter is employed. It is unnecessary, so far as claims 21 and 22 are concerned, to review the facts or the argu ments by which defendant controverts this last proposition. The above concessions, which cover the starting of the cutter in each form of machine, are sufficient. Certainly it is essential to an automatic cutting device embodied in a sewing machine that it shall at least begin to cut. That function is quite as important as it is that it should cease cutting at some appropriate time. In view of these concessions it is a sound contention of defendant that Osterhout, so far as this record shows

never invented any cutter mechanism except one having a controller, the fulfillment of whose function necessarily depended upon the jogging movement of some part of the work-moving mechanism; that he never illustrated or described any other cutter mechanism; and that he therefore failed to show how any cutter mechanism could be operated otherwise than through the jogging of some part in the work-moving mechanism.

The next question is whether the jogging motion is to be considered a part of these several claims. In some of them, where the cuttercontroller is described as "connected to and moving with the said work-moving mechanism," the language of the claim plaiuly includes the jogging motion, for when the work-moving mechanism has a jogging motion whatever "moves with it" has the same; but in others, such as claim 21, where the controller is described as "a cam rotating in unison with the

disk," the language does not specifically include the jogging motion. But is it any the less a part of the claim? The specification points out methods whereby the "intermittent to-and-fro movements" may be availed of to insure cutting at the proper time and in the proper place.

To cause the cutter-carrier [says the patentee] to be engaged with the needlecarrier, and depressed by it, to cut the work at one descent of the needle-carrier, and to be not engaged with the needle-carrier, nor thus depressed by it, at its next descent, or to cause the cutter-carrier to be engaged with the needle-carrier, and depressed by it to cut the work only when the work-carrier is at one end only of its momentary to-and-fro movement, (what I have called the "zigzag movement,")

I suitably connect the clutch for temporarily engaging the cutter-carrier with the needle-carrier with a suitable part of the mechanism of the sewing-machine, such as the part B, C, D, F, G, H, or H', which has a movement in one direction,

at the momentary movement of the work-carrier in one lateral direction, and which has a movement in the opposite direction at the next lateral momentary

*

* *

movement of the work-carrier in the reversed direction.

Without making use of this lateral movement or jog, the subcombination of claims 21 and 22, and, indeed, the combination of each of the claims, would remain inoperative. If it were inoperative, it would be without utility and therefore unpatentable. The claims in question, therefore, can only be sustained by reading into them the jogging motion, without which the combination set forth in the claims will perform no function.

The only question then remaining in the case is whether defendant's machine infringes. Defendant starts engagement by means of a projecting finger on the rotary feed-disk, which engages with a finger on the connecting-lever, which is mounted on a tubular rock-shaft, and which moves the cutter-bar into proper position to begin to cut; but the use of a finger or trip on the feed-wheel to start other mechanism was old in the art. By reference to the statement supra as to sequence of movements it will be observed that we have a forward move, followed by a jog in and by a jog out, and then another forward movement. There are thus two jog movements to one forward movement, and the three movements of each group come always in the same order. The machine being arranged so that the jog immediately succeeding a forward move leaves the work clamp in proper position for the descent of the needle, the trip or finger may be located anywhere upon the periphery of the feed-disk, because, wherever placed, it can only start the cutter at a time when the work is in propor position to be cut. The defendant's machine is a single plunger using a broad knife, and it is of course necessary that, having once descended, the cutter shall not descend again. It will be remembered that complainant has conceded that when his machine is arranged as a multiple cutter the jog. ging motion is essential for disengaging the parts. We are satisfied that it is also essential for disengaging when a single cutter is used, for these reasons: The engagement between the projecting finger P and the lever not only rocks the cutter-carrier into proper position to be caught by the depressor, but holds it in that position as long as the engagement of it and the lever continues. Therefore so long as such engagement continues each descent of the needle-carrier (to which the depressor is attached) will bring down the cutter-carrier. If that engagement is left to be broken only by the forward movement of the finger P, moving rotarily with the feed-wheel, there would be two descents of the needle and cutter, since after each forward movement and before the next one there are always two jog movements, and one of these descents would take place when the work was not in proper position and the cloth would be cut somewhere on the line of stitches.

In complainant's machine it is the jog out which saves this catastrophe. The same jog which puts the work in wrong position for cutting invariably puts the projecting finger in such position that the engagement with the lever which sets or keeps the cutter in action becomes impossible. In the machine of the patent, therefore, the jogging motion is essential to both engagement and disengagement. In defendant's machine, however, it is utilized for neither. As the Circuit Court found, defendant has

demonstrated that its machine did not use jogging motion at all in connection with the action of the cutter-operating mechanism, and only used the rotary motion to start the cutter device by a pin, and did not depend on any contact-surface to determine the cutting operation.

The manner in which defendant starts its cutter devices has already been shown. It stops their action as follows: Engagement of the pin or finger on the feed-disk with the finger on the tubular rock-shaft (which takes the place of complainant's lever connection) causes a clutch on the cutter-actuating rock-shaft to be engaged with a shoulder on the needle-actuating rock shaft. As long as the clutch is held by this shoulder both shafts will rock together, causing both needle and cutter to descend. The shoulder is the equivalent of complainant's depressor. And so long as the engagement of finger with finger keeps the tubular (or lever) shaft rocked so as to retain the clutch in position to be caught by the shoulder the hold of the shoulder will not be broken by the spring, which would otherwise throw the clutch out of engagement. If the machine depended only upon the further rotary movement of the feeddisk to carry its finger out of engagement with the tubular-shaft finger, it would be useless, for the reason already pointed out, viz, there would be two descents and therefore two cuts, one necessarily when the cloth was in improper position, before the forward feed motion could effect disengagement. To break engagement, defendant places on the cutter rock-shaft a snail-cam, which is so located relative to the tubular or lever shaft that, as the cutter-shaft rocks, the snail-cam depresses the tubular shaft and breaks the engagement with its finger with the finger on the feed-disk. In consequence, the rocking motion. of the cutter-shaft, which causes the first descent, at the same time absolutely prevents a second descent by removing from engagement one of the two fingers whose engagement alone makes a descent of the cutter possible. Complainant's expert admits that it is the snail orscroll cam on the cutter-shaft that produces the disengagement of the controller, so that the disengagement cannot possibly take place before the cutter descends once, and the engagement cannot possibly continue after the cutter has descended once, no matter what the fineness or coarseness of the stitch.

Having once started the connections which put the cutter mechanism into operation, the feed-disk finger has no further control over them. The cutter mechanism itself contains devices which, independent in every way of the starting-pin, effect a breaking of the engagement and a stoppage of the cutter mechanism, and which do this with

no assistance in any way from the jogging movement. We concur, therefore, with the judge who heard the cause at circuit, that defendant's machine does not infringe claims 1, 2, 4, 5, 7, 15, and 28, for the reason that it has not the cutter-controller, which determines engagement by the utilization of the jogging movement, but a different mechanical device which does not at all avail of that jogging movement. And, as already pointed out, we do not think claims 21 and 22 can be differentiated on any theory that they cover the finger only as a starter operating solely by rotary feed motion, since the jogging motion is essential to start complainant's cutting devices, and defendant makes no use of such jogging movement even as a starter.

An interference was declared in the Patent Office between Osterhout's application for this patent and an application of Tebbetts and Doggett. The cutter-actuating mechanism of defendant is substantially that of Tebbetts and Doggett. The issues in interference were framed on claims contained in Tebbetts and Doggett's application. They are textually the same as claims 21 and 22 of this patent. Default was made on the part of Tebbetts and Doggett, and upon such default priority of invention was awarded to Osterhout. It is contended by complainant that not only is the question of priority res adjudicata between the parties to the suit, but that defendant is also precluded from contesting the validity and scope of claims 21 and 22 of the patent in suit and infringement of the claims by defendant's machine. The theory of this contention is that under the rules and practice of the Patent Office either party has a right to move to dissolve an interference on the ground that in view of the state of the art the issue framed therein could not be based upon his invention as described and claimed; that failure to move for such dissolution amounted to an acquiescence in the holding of the Patent Office that the inventions of the two parties, as limited by the prior art there shown, were indentical; that they were patentable despite the prior art, and that either might properly be the basis for claims corresponding to the interference issues; and therefore that, although it now appears that the original Tebbetts and Doggett claims, now claims 21 and 22, correctly cover defendant's machine, but do not cover complainant's, unless an unexpressed element is read into them, defendant cannot now avail of that fact to limit these two claims of the patent. We are referred to no authority in support of this contention. It has not been the tendeucy of the decisions either of the Supreme Court or of the Circuit Courts or Courts of Appeal to extend the effect of interference decisions as final adjudications, and we concur with the Circuit Court in the conclusion that

while the decision in interference may be res adjudicata as to priority, it does not preclude defendant from raising other questions not in issue in said proceedings.

The decree of the Circuit Court is reversed, with costs, and cause remitted, with instructions to dismiss the bill.

[U.S. Circuit Court-Eastern District of Pennsylvania.]
LEWIN et al. v. WELSBACH LIGHT COMPANY et al.

Decided May 3, 1897.
79 O. G., 1867.

1. DEMURRER ALLEGING LACK OF TITLE AND INVALidity OverrULED.

In a bill of complaint it was alleged that the defendants have conspired to threaten, intimidate, and prevent the customers of complainants from dealing with them by distributing false and threatening circulars, with intent to destroy complainants' business. A demurrer was overruled, but without prejudice and with leave to present the matter of the demurrer-namely, that the patent sued upon is invalid, or, if valid, is not infringed, and that the bill does not show title to the relief sought-by answer.

2. SAME-LEGITIMATE INQUIRY.

The only legitimate inquiry upon a demurrer alleging invalidity, non-infringement, and no title in complainants is, Are the acts and conduct of the defendant, alleged in the bill to be distributing false and threatening circulars, with intent to injure complainants' business, such as a court of equity should restrain the owner of a presumptively valid patent from doing?

Mr. Chas. G. Coe for complainants, (Messrs. Strawbridge & Taylor, of counsel.)

Mr. Wm. Findlay Brown for the defendants, (Mr. John R. Bennett, of counsel.)

DALLAS, J.:

This bill sets forth that the complainants are now endeavoring to become active competitors of the defendants in the sale of incandescent lights, etc., and that one of the defendants manufactures such lights, etc., and the other of them is engaged in selling goods made by the former. It states that the Welsbach Light Company has brought suit against these complainants in this court for alleged infringement of a certain patent and that the complainants have duly appeared in that suit. It avers that the patent so sued upon is solely for a process, and that the complainants cannot be held to be infringers thereof, because, as alleged, they are not manufacturers, but are exclusively engaged in selling the products of a certain manufacturer, against whom the Welsbach Light Company has brought suit in the Southern District of New York for alleged infringement of the same patent, and which suit the said manufacturer, who is amply responsible, is vigorously contesting. The bill also avers that the patent referred to is now invalid, under section 4887 of the Revised Statutes, by reason of the expiration of a certain Spanish patent for, as alleged, the same invention. The foregoing is the substance of paragraphs 1 to 8 of the bill. The gist of the complaint is presented in the paragraphs which follow, and may, I think, be fairly reduced to the statement that the defendants in this suit, with knowledge of the matters already mentioned and with intent to destroy the complainants' business, have conspired to threaten, intimidate, and

« iepriekšējāTurpināt »