Richards & Conover Co. v. Leishman, 3577.

• Decision Date: 18 April 1949
• Docket Number: No. 3577.,3577.
• Citation: 172 F.2d 365
• Parties: RICHARDS & CONOVER CO. v. LEISHMAN.
• Court: U.S. Court of Appeals — Tenth Circuit

172 F.2d 365 (1948)

RICHARDS & CONOVER CO. v. LEISHMAN.

No. 3577.

United States Court of Appeals Tenth Circuit.

November 15, 1948.

Rehearing Granted January 5, 1949.

On Rehearing January 20, 1949.

Writ of Certiorari Denied April 18, 1949.

Foorman L. Mueller, of Chicago, Ill. (Josiah G. Holland, of Denver, Colo., on the brief), for appellant.

John Flam, of Los Angeles, Cal. (J. B. Dudley, of Oklahoma City, Okl., on the brief), for appellee.

Before PHILLIPS, Chief Judge, and BRATTON and HUXMAN, Circuit Judges.

Writ of Certiorari Denied April 18, 1949. See 69 S.Ct. 882.

PHILLIPS, Chief Judge.

Leishman brought this action against The Richards and Conover Company for alleged infringement of claims 7 to 11, inclusive,¹ of Reissue Patent No. 20827.

From a decree holding the claims in suit valid and infringed, The Richards and Conover Company has appealed.

The original patent was applied for December 15, 1934, and granted February 15, 1938. The reissue patent was applied for May 23, 1938, and granted August 16, 1938. The original patent contained six claims. The reissue patent contained the claims of the original patent and additional claims 7 to 12, inclusive.

The patent is for an apparatus for turning rotatable rockers about their axes to predetermined positions.

The device of the patent is illustrated by Figures 1 and 2 of the patent drawing.

It will be noted that Figure 1 illustrates two rockers, 48 and 54. Claims 1 to 4, inclusive, 6 and 12 cover a device with two or more rotatable rockers. However, the claims in suit are limited to one rotatable rocker.

One purpose of the patented device is to provide an apparatus for simultaneously turning one variable condenser to bring in a radio broadcast and a second variable condenser to bring in a television broadcast. Such a device embraces a pair of rotatable rockers, one connected with the radio and the other with the television condenser shaft. Each rocker is movable by a corresponding tappet frictionally clamped in a predetermined position on a lever assembly. Each tappet is mounted on a pivot so that it can be adjusted to different angular positions. One end of the lever assembly is pivoted on a shaft. When the lever is depressed, one side of each tappet engages an arm of its corresponding rocker and rotates that rocker until both arms of that rocker are in full engagement with both sides of its corresponding tappet, thus bringing each rocker to a position of rest. It will be observed that the position to which the tappet is adjusted determines the point at which the rocker comes to rest and the wave length to which the condenser is tuned, and that by one movement of the lever, each condenser is brought into a predetermined position. Adjustment is effected by loosening a setscrew mounted on the lever, depressing the lever, manually moving the condenser and its corresponding rocker to a desired predetermined position, moving the tappet into an angular position so that each of its sides is in complete engagement with its corresponding rocker arm, and then tightening the setscrew so as to hold the tappet in such angular position.

There is a recess in each rocker between the two opposite arms thereof. Each tappet has a projecting portion through which its pivot extends. When the lever is depressed, that portion of the tappet through which its pivot extends moves into the recess in the rocker, and the axis of the tappet and the axis of the rocker become coaxial. This coaxial relationship is important because it insures accuracy at the time of the adjustment of the tappet. When each side of the tappet is brought into engagement with its corresponding arm of the rocker, the latter having been set at a predetermined and desired position, with coaxiality between the axis of the tappet and the axis of the rocker, pressure on the lever to hold the tappet in engagement with the rocker while the setscrew is being tightened will not result in movement of the rocker. Absent such coaxiality, pressure on the lever bringing the tappet into full engagement with the rocker, when the latter is in certain angular positions, would have a tendency to move the rocker.

The alleged infringing device employs a metal bar in the form of a plunger to which an adjustable tappet is attached. The plunger moves in guides. It carries a setscrew by which the tappet can be loosened for adjustment and held rigid at a desired angular position. As the plunger moves forward, one side of the tappet engages the rocker and rotates it until each side of the tappet is in engagement with its corresponding rocker arm. There is a recess in each rocker between the two opposite arms thereof. Each tappet has a projecting portion through which its pivot extends. When the plunger is pushed forward, the pivot of the tappet moves into the recess in the rocker and when each side of the tappet is completely engaged with its corresponding rocker arm, the axis of the tappet is substantially coaxial with the axis of the rocker. Movement of the shaft of the rocker is communicated by spur gears to the shaft upon which the movable condenser plates are mounted. By moving the plunger forward, the tappets engage and move the rotatable rocker shaft which, in turn, by means of the spur gears, turns the condenser shaft and thus adjusts the condenser to the wave length of a desired station.

In Leishman v. Associated Wholesale Electric Co., D.C., 36 F.Supp. 804, the court adjudged claims 7 to 11, inclusive, invalid for want of invention. On appeal, the Ninth Circuit held that if claims 7 to 11, inclusive, did not include levers, they were not for the same invention as the original patent and were, therefore, invalid, and that if they did not include levers, the plungers and the levers not being mechanical equivalents, such claims were not infringed by an accused device which contained no lever, and concluded it was not necessary to pass on the validity of claims 7 to 11, inclusive.²

There, as here, the alleged infringing device employs only one rocker and one set of corresponding tappets, and the tappets are mounted on and moved by plungers, not levers.

However, claims 7 to 11, inclusive, embrace a single rocker and corresponding adjustable tappets mounted on pivots, means for moving each tappet so one of its sides engages one arm of the rocker and rotates the rocker until the other side of the tappet engages the other arm of the rocker, and they do not specifically embrace a lever means for carrying and moving the tappets; and we are unwilling to rest our decision on the narrow ground that the lever in the device of the patent in suit and the plunger in the accused device are not mechanical equivalents.³

The use of levers and adjustable tappets mounted thereon to rotate rockers was well known in the art when Leishman entered the field. The prior patent to Marschalk, No. 2,072,897, granted March 9, 1937, discloses a lever assembly, an adjustable tappet pivotally mounted thereon, and a rocker, the shaft of which communicates by spur gears with a shaft on which movable radio condensers are mounted, so arranged that by depressing the lever, the rocker will be rotated by the tappet to a predetermined position to which the tappet has been adjusted, and the rotation of the rocker will, in turn, rotate the condenser shaft so as to tune the radio to a desired wave length. Marschalk, however, does not disclose the element of coaxiality of the axis of the tappet and the axis of the rocker embraced in claims 8, 10, and 11. It is clear, therefore, that claims 7 and 9 are anticipated by Marschalk and that claims 8, 10, and 11 are likewise anticipated by Marschalk, unless the adding to the combination disclosed by Marschalk of the element of coaxiality amounted to invention over Marschalk. The principle of coaxial relationship and its importance, where it is desired that two parts of a machine operate together harmoniously, has been within the knowledge, for many years, of ordinary mechanics skilled in their art.

In order to rise to the dignity of invention, the conception of a patent must be the result of the exercise of the inventive or creative faculty, not of mere mechanical skill.⁴

Mechanical skill is but the display of the expected skill of the calling; it involves only the exercise of the ordinary faculties of reasoning, aided by the special knowledge and the facility of manipulation which is acquired through habitual and intelligent practice of the art and it is in no sense the creative work of that inventive faculty which it is the purpose of the Constitution and the patent laws to encourage and reward.⁵

That which would readily appear to one acquainted with the prior art and skilled in that art involves merely mechanical skill.⁶

Here, we think, the desirability of having the axis of the tappet and the axis of the rocker coaxial, when the tappet is in full engagement with the arms of the rocker, and the necessary changes in Marschalk's device to effect that result, would readily occur to one acquainted with the prior art and skilled in that art and would involve the exercise of mere mechanical skill.

We conclude, therefore, that claims 8, 10, and 11 did not constitute invention over Marschalk and that all of the claims in suit were anticipated by Marschalk.

The judgment is reversed and the cause remanded with instructions to enter a decree adjudging the claims in suit invalid for want of invention.

On Rehearing.

In our former opinion, we recognized the importance of coaxiality between the axis of the rocker shafts and the axis of the pin on which the tappet is mounted on the lever or plunger. We said:

"This coaxial relationship is important because it insures accuracy at the time of the adjustment of the tappet. When each side of the tappet is brought...