Consolidated Rubber Tire Co. v. Diamond Rubber Co. of New York

Decision Date03 June 1908
Docket Number261.
PartiesCONSOLIDATED RUBBER TIRE CO. et al. v. DIAMOND RUBBER CO. OF NEW YORK.
CourtU.S. Court of Appeals — Second Circuit

On Rehearing, June 17, 1908.

Charles K. Offield (C. C. Linthicum and Philip B. Adams, of counsel) for appellant.

Paul A Staley, Border Bowman, Thomas W. Bakewell, and Charles W Stapleton, for appellees.

Before LACOMBE, COXE, and NOYES, Circuit Judges.

COXE Circuit Judge.

This appeal is in the nature of a reargument of the questions decided in the Firestone Case. It is not here upon newly discovered evidence, for the additional testimony was as available in that case as in this. There is more testimony it is true but it is cumulative merely. The counsel are the same, the issues are the same. The judge of the Circuit Court correctly states the situation as follows:

'The question in this case was presented and tried out before Judge Platt and before the Circuit Court of Appeals; evidence was taken and experts examined. One side gave evidence that they would hold the tire firm and immovable, and the other side gave evidence that they would not. Now, in this case, you have called more experts giving the same kind of evidence, that the wires would not allow the tires to tip, but in my opinion that evidence is merely cumulative, and could not, in the nature of the case, present any such different result that this court would be justified in not following the opinion of the Circuit Court of Appeals.

Of course, if your defense was that this defendant does not infringe, that would be an entirely different question, but the only question argued here is as to the validity or invalidity of the patent.

'That question having been once tried out and a decision made, I do not see what right any other defendant had to go over the same evidence and call upon the court to go over it again, particularly when the decision of the Circuit Court of Appeals is controlling. In my opinion the only point in this case, that of the validity of the patent, has been decided by the Circuit Court of Appeals.'

We think the judge was justified in so holding. If courts are to examine defenses in patent cases de novo, as often as they are presented, litigation will continue until the resources of the defendants or the patience of the complainant, and possibly the patience of the court, are exhausted. The question of the capacity of the tires to rise slightly and re-adjust themselves when subjected to severe lateral strain, was one of the principal questions litigated in the Firestone Case and, as we pointed out in our opinion, the tendency to do this was admitted by the defendant's expert. He says:

'There is no doubt that when lateral pressure is applied to one side of the exposed portion of the tire, there is a tendency to roll the tire out of the channel.'

The tests made in that case convinced us that this tendency actually existed and that we were safe in assuming as established a proposition about which the experts on both sides agreed and the truth of which was demonstrated in open court.

The impossibility of proving or disproving in any satisfactory manner the existence of this tipping tendency by the observation of the vehicle in actual use or the examination of a worn out tire, will be admitted after a moment's reflection. The human eye cannot detect the movement of the tire when driven rapidly against a trolley rail or other obstruction at an angle of 45 degrees. So too a worn out tire with cuts and abrasions along its entire periphery may have the tipping capacity in question. The fact that tires have been produced in court which were rusted in the steel channel, is not important unless it be proved that they were subjected to severe lateral strain.

A tire used on asphalt pavements or on smooth park roads would probably remain in place if but one wire were used. We do not lose sight of the fact that the testimony shows that many of the tires from Chicago received rough usage but this testimony avails little in face of the experiment which showed us the bottom of the tire rolled up by lateral strain and re-seated the moment the strain was removed. This record presents nothing new which would warrant us in changing our former decision.

Another volume of 500 pages has been added to the library which has accumulated during the last ten years through the efforts of many defendants who seem determined to use what they, in effect,...

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5 cases
  • Lowell v. Triplett
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • June 3, 1935
    ...the patent to be valid. Consolidated Rubber Tire Co. v. Firestone Tire & Rubber Co., 151 F. 237; also in Consolidated Rubber Tire Co. v. Diamond Rubber Co. (C. C. A.) 162 F. 892. The Supreme Court held the patent to be valid. Dowagiac Mfg. Co. v. Minnesota Moline Plow Co., 235 U. S. 641, 35......
  • Karl Kiefer Mach Co. v. Heyman
    • United States
    • U.S. District Court — Southern District of New York
    • December 17, 1914
    ... ... United States District Court, S.D. New York. December 17, 1914 ... The ... Kiefer ... complete. Rubber gaskets were placed between the flat sides ... overlooked. The Grant Tire litigation is a curious ... illustration. Grant ... (C.C.) 91 F ... 978; Consolidated Rubber Tire Co. v. Diamond Rubber ... Co., 162 ... ...
  • Brick v. AI Namm & Sons
    • United States
    • U.S. District Court — Eastern District of New York
    • February 3, 1927
    ...Co., 220 U. S. 428, at page 435, 31 S. Ct. 444, 447 (55 L. Ed. 527), affirming decree, Circuit Court of Appeals for the Second Circuit, 162 F. 892. I do not consider that the cases cited by the counsel for defendant, especially the case of Atlantic Works v. Brady, 107 U. S. 192, 2 S. Ct. 22......
  • Hurd v. Seim
    • United States
    • U.S. District Court — Northern District of New York
    • July 26, 1911
    ... ... United States Circuit Court, N.D. New York. July 26, 1911 ... [189 F. 592] ... Charles ... K. Offield, for Diamond Rubber Company ... RAY, ... District ... Consolidated Rubber Tire Co. & Rubber Tire Wheel Co. v ... ...
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