151 F. 478 (6th Cir. 1907), 1,523, Buser v. Novelty Tufting Mach. Co.

Docket Nº:1,523.
Citation:151 F. 478
Party Name:BUSER et al. v. NOVELTY TUFTING MACHINE CO.
Case Date:January 08, 1907
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 478

151 F. 478 (6th Cir. 1907)

BUSER et al.

v.

NOVELTY TUFTING MACHINE CO.

No. 1,523.

United States Court of Appeals, Sixth Circuit.

January 8, 1907

Page 479

Alfred M. Allen, for appellants.

Walter F. Murray, for appellee.

Before LURTON and SEVERENS, Circuit Judges, and COCHRAN, District judge.

COCHRAN, District Judge.

This appeal is from an interlocutory decree granting an injunction, with a reference for an accounting, in a suit for the infringement of certain patents, brought July 12, 1902. The appellee, also hereafter referred to at times as 'plaintiff,' owns said patents by assignment. They all relate to tufting machines; i.e., machines for making tufted work in upholstering in the furniture, carriage, and casket trades. They are six in number, to wit: No. 511,649, to H. B. Pitner, December 26, 1893; No. 577,809, to H. B. Pitner, February 23, 1897; No. 592,508, to A. Freschl, October 26, 1897; reissue No. 11,778, to A. Freschl, October 24, 1899; reissue No. 11,779, to A. Freschl, October 24, 1899; and No. 682,139, to A. Freschl, September 3, 1901. The suit as to the first Pitner patent was abandoned before the hearing. It was held that the first Freschl patent was not infringed, that the last two Freschl patents were invalid, and that the second Pitner patent, as to claims 5 and 6, and the second Freschl patent, as to all its claims, four in number, were valid and infringed.

The machine described in the second Pitner patent, No. 577,809, and to which it related, consists of four separate articles-- a mold board, plaiters, a follow board, and a pin board. The mold board is an open box partitioned by strips into separate compartments, or pockets, of the shape desired for the rounded portions or 'biscuits' of the tufted work, with hollow posts at the corners of the pockets, except at the outer edge, of the height to make the depression of the tufted work the desired depth, and longitudinally fluted on their outer side, and with openings in its base answering to the holes in the corner posts. The plaiters are hollow tubes recessed into downwardly projecting points at one end and adapted to straddle the corner posts and partition slips and enter the flutes of the corner posts. The follow board is a board

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with openings in it answering to the corner posts of the mold board. The pin board is a board with pins or posts rigidly attached thereto answering to the openings of the base of the mold board, and adapted to enter same and the holes of the corner posts. The mode of using the machine is this: The outer or upper cover of the cushion, with its finished face downwards, is placed in the mold board and depressed into the pockets; the plaiters are passed down over the cover and corner posts and into the flutes, so as to plait the cover and hold it in place; moss, or other suitable material, is filled in the depressions of the cover; the plaiters are removed; burlap, or other suitable material, is laid on the moss to form the inner or lower cover; the follow board is placed on top of the burlap, and the whole is removed to a press where the filling material is compressed into place; the mold board and follow board are clamped together and removed from the press; the tufting buttons, prongs upwards, are forced by means of the pin board through the openings in the base of the mold board and the holes in the corner posts, and through the lower and upper covers and there clinched, the holes in the follow board being large enough to permit this being done; and the finished work is then removed from the machine. Claims 5 and 6 of the patent are for the combination of a base provided with corner posts, referred to therein as 'upwardly projecting tucking devices,' and plaiters. The claims contain no limitations on the tucking devices, but do on the plaiters. The fifth calls for 'detachable recessed plaiters which are adapted to straddle said tucking devices,' and the sixth for 'detachable plaiters provided at their lower ends with downwardly projecting points which straddle said tucking devices. ' This is the only difference between the two claims.

The machine described in the second Freschl patent, reissue No. 11,778, and to which it related, consists of a mold board, and all the claims thereof, four in number, relate thereto. They call for an imperforated base plate, as distinguished from the perforated base plate of the Pitner patent, with a plurality of upwardly projecting tufting posts attached rigidly to said plate; each post being provided at its outer end either with an upwardly projecting pointed pin held against lateral displacement and adapted to pierce both coverings, or 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, and either with or without strips partitioning the mold board into separate compartments. The fixed pin is used when it is intended to sew the outer and inner covers together. In effect the construction is simply the pin board of the second Pitner patent, No. 577,809, with the addition of the upwardly projecting pointed pins or seats for the tufting buttons at the outer ends of the posts thereof and of the partitioning strips when used.

The appellants (Mattie H. Buser being the wife of W. E. Buser, and the Champion Bed Lounge Company being the name under which they did business), also hereafter referred to at times as 'defendants,' had filed in September, 1902, their answer, in which they denied infringement and alleged as follows:

'And for a second defense to plaintiff's bill of complaint, defendants say: That they have been continuously engaged at the city of Chillicothe, Ross

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county, Ohio, in the upholstering business in the manufacture of chairs and lounges for a period of 25 years last past; and that all the machinery and apparatus that has been and is used by them in their said business, and also the methods of using same, are of their own discovery and invention, and have been so used by them in their said business in said city of Chillicothe, Ross county, Ohio, continuously for a period of 22 years last past.'

Some time shortly after October 14, 1902, defendants had filed a supplemental answer, in which they set up that the defendant W. E. Buser obtained a patent for new and useful improvements in tufted machines, numbered 711,382, and alleged:

'That said patent letters include and embody in all the various appliances and apparatus used by defendants in their upholstering business, and also comprise and contain all the upholstering apparatus and methods used by defendant, of which plaintiff in its bill herein complains.'

This pleading, of course, presented no defense to the suit. Its sole effect was to annul the denial of infringement contained in the answer and to relieve plaintiff of the necessity of proving it. It had this effect because it is apparent from an inspection of said patent that the apparatus described in it and to which it related is an infringement of plaintiff's two patents sustained and held to be infringed, and it is alleged that the apparatus in use by defendant is of that character. This left the second defense of the original answer as the only defense to the suit.

The defense which this portion of the answer set up was prior invention, and that by defendants. It is not, however, thus directly alleged therein. That portion of the answer contains three affirmative statements, to wit: That the defendants had been continuously engaged in the upholstering business in Chillicothe, Ohio, for 25 years last past; that all the machinery and apparatus that had been and were then used by them in their said business, and the methods of using same, were of their own invention; and that they had been used by them continuously for a period of 22 years last past. Counsel differ as to the meaning of the last two statements, the material part thereof. Appellants' counsel contend that their meaning is merely that all the machinery and apparatus which the defendants had been for 22 years last past, and were then using, were of their own invention. So construed, they did not present the defense of prior invention, or any defense at all. According to this construction, it is neither alleged that the machinery and apparatus which the defendants were then using had been invented by defendants prior to plaintiff's invention, nor that the machinery and apparatus which the defendants had been using during said 22 years prior to plaintiff's invention anticipated plaintiff's patents. Appellee's counsel contends that their meaning is, not only that all the machinery and apparatus which the defendants had been and were then using were of their own invention, but also that the machinery and apparatus which they were then using had been used by them continuously for 22 years last past. So construed, they presented a defense, and that of prior invention.

This they did, not by direct allegation, but indirectly only. As counsel for appellee says, this defense 'is an inference from the answer. ' Rather it should be said that it is an inference from the answer in connection

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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...

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