166 F. 463 (S.D.Ga 1908), Von Eberstein v. Chambliss

Citation:166 F. 463
Party Name:VON EBERSTEIN v. CHAMBLISS.
Case Date:December 23, 1908
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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Page 463

166 F. 463 (S.D.Ga 1908)

VON EBERSTEIN

v.

CHAMBLISS.

United States Circuit Court, S.D. Georgia, Eastern Division.

December 23, 1908

A. L. Alexander and Walter G. Charlton, for complainant.

William L. Clay, for defendant.

SPEER, District Judge.

Frederick A. Von Eberstein brings his bill in equity to enjoin J. R. Chambliss from alleged infringements of patent rights granted to the complainant in 'certain new and useful improvements in pile drivers. ' On November 18, 1902, an application for the patent in question was filed in Washington with the Commissioner of Patents, and letters patent in due course were issued. Reference

Page 464

to the specification and claims made in the letters patent discloses the alleged novel features, which are claimed by Von Eberstein and which are essential to the validity of his patent. The language of the specification is as follows:

'This invention relates to machines for driving piles, being particularly adapted for use in the construction of railroads in low, marshy, and soft land, the construction obviating the necessity of shifting the machine laterally to drive the usual number of piles transversely of the road, and at the same time admitting of the center piles being driven perpendicularly and the end piles oppositely inclined, so as to mutually brace each other when the header is in place and secured thereto. The machine will also admit of driving piles perpendicularly, whether going up or down grade. In accordance with this invention the guides may be moved laterally or swung from side to side or forward and rearward, according as the pile is to be driven vertically or inclined to meet any requirement.'

The bill sets forth that since the issuance of letters patent the complainant has been the sole owner of his improved pile drivers. Of these he claims to have used and sold a number, and to have the sole rights therein. The defendant, notwithstanding, is alleged to have proceeded to use and--

'is now engaged in using pile drivers containing and embracing the invention described and patented, and the sole and intended use of which is to practice the process described and patented in and by the said letters patent, * * * and the claims thereof, * * * is now infringing upon the exclusive rights secured to your orator by said claims, * * * and is preparing to erect and use and will shortly have in operation other pile drivers, which will likewise infringe upon and cause additional damage to your orator.'

Asserting that irreparable damage will result from the threatened continued use of the said pile drivers, the complainant prays provisional and permanent injunctions against the defendant and his agents from using or selling the machines or invention patented, and further seeks an accounting for all profits and damages resulting from the alleged unlawful use and practice of the invention. Rule nisi was granted upon these prayers, and a bond of $5,000 was required of the defendant as a condition for the withholding of the injunction. Upon the filing of answers and amendments by the defendant, the cause proceeded regularly before an examiner, and voluminous testimony was taken. Much of this is descriptive of the intricate mechanical parts of all types of pile drivers now extant. The court has been assisted by the able arguments and elaborate briefs of counsel in reaching an understanding and conclusion upon the mass of expert evidence offered by both sides.

The answer of the defendant makes denial (1) that Von Eberstein is the original and first inventor of the contrivance before the court; and (2) that it was a new and useful invention not known or used by others, or in public use in the United States for more than two years. In this connection he claims that the driver which is the subject of complaint has been used by him since 1899, and, with the exception of certain minor changes, has been so used for more than 15 years. He further states the times, places, and purposes of various other pile-driving machines containing Von Eberstein's devices, which were in use for more than two years before application for patent was made.

Page 465

Having described the invention, the three claims of novelty which are made by the patentee, and upon which the validity and extent of his rights are based, are stated in the following language:

'(1) In a pile driver, a derrick provided at its upper end with a transverse track, a trolley wheel mounted upon said track and adapted to travel and to rock thereon, guides connected at their upper end with said trolley wheel and movable therewith and having an independent sidewise swinging movement, and means for securing the guides in an adjusted position, substantially as described.

'(2) In a pile driver and in combination with the derrick provided with a track, and guides, a single trolley wheel for supporting the guides upon the track, a frame connected to the upper portion of the guides and spaced therefrom, and a pin for the trolley wheel supported at its ends by said frame, and a crosspiece connecting said guides, substantially as described.

'(3) In a pile driver, the combination of the following parts, namely: A sled, a derrick mounted upon the sled, a transverse track at the upper end of the derrick, uprights between the derrick and sled, braces between the derrick and uprights, guides, a single trolley wheel at the upper end of the guides and mounted upon the track, means for shifting the guides along the track and fixing them in an adjusted position, said guides being free to swing laterally, forward, and rearward at their lower end, and means for securing the guides at their lower end in an adjusted position, substantially as set forth.'

The machines, which Chambliss in his defense contends he has had in public use and operation since 1888, are of two slightly differing classes. From the photographs and evidence before the court it is apparent that the defendant's present driver is a considerable improvement on his earlier models, and upon superficial examination presents but little variation from the essential features of Von Eberstein. These the defendant claims he devised as early as 1899.

The superiority of the complainant's patent, as described by one of the witnesses, lies chiefly in the 'flexibility' of the leads, ways, or guides-- as they are variously termed-- which direct the movement of the hammer from the top of the derrick to the pile which is being driven below. The ordinary driver possesses no such advantages. It is necessary to move the entire derrick and guides, mounted as they are upon beams which are called a 'sled,' in order to drive the piles forward, backward, or transversely. There is no independent motion whatever of the guides fastened to the derrick. Von Eberstein, by the use of a transverse beam at the top of the derrick, a frame connecting the top of the guides carrying a grooved trolley wheel held by a pin, a rounded iron track on the top of the beam over which the wheel passes, and a pulley at each end of the beam within...

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