206 F.2d 752 (6th Cir. 1953), 11681, Allied Wheel Products v. Rude

Docket Nº:11681.
Citation:206 F.2d 752, 97 U.S.P.Q. 510
Party Name:ALLIED WHEEL PRODUCTS, Inc. et al. v. RUDE.
Case Date:June 17, 1953
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 752

206 F.2d 752 (6th Cir. 1953)

97 U.S.P.Q. 510

ALLIED WHEEL PRODUCTS, Inc. et al.

v.

RUDE.

No. 11681.

United States Court of Appeals, Sixth Circuit.

June 17, 1953

Page 753

Carl F. Schaffer, Toledo, Ohio (Carl F. Schaffer and Fred A. Smith, Toledo, Ohio, on the brief; Pickrel, Schaeffer & Ebling, Dayton, Ohio, Owen & Owen, Toledo, Ohio, of counsel), for appellants.

H. A. Toulmin, Jr., H. H. Brown, Dayton, Ohio, on the brief; Toulmin & Toulmin, Dayton, Ohio, of counsel, for appellee.

Before ALLEN, McALLISTER, and MILLER, Circuit Judges.

McALLISTER, Circuit Judge.

This is an appeal from a judgment holding that the Rude patent 1 for a so-called spider wheel for harrows was valid and infringed. No appeal was taken from the finding and judgment of infringement. We are, therefore, concerned in this case only with the question of validity.

The patent has to do solely with the spider wheel construction and not the manner in which the wheel is carried by various agricultural machines. The wheel itself consists of a flat disc having a hub, and angle steel pointed teeth riveted alternately to opposite sides of the disc, with the inner ends of the teeth being engaged with the hub thereby relieving the rivets, or fastenings, from strain. The teeth extend for about one-half their length beyond the disc, thus forming a pointed toothed wheel. 2 The purpose of Rude's rotary wheel, as stated by counsel, is to penetrate the soil at spaced lateral and longitudinal points to break the earth's crust as the wheel rotates. As each staggered tooth rotates, it tends to lift the soil, and by this process, dislodges weeds that may be in the early stages of growth. It also provides a mulching effect on the surface of the soil, and, as appellee says, is most effective in the earlier stages of a weed, before it gets above the soil or just as it begins to sprout. It is declared that the problem is to dislodge the soil and weeds, and to turn the weeds over so that

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they may wither without disturbing the growing crop; and it is emphasized that the construction of Rude's spider wheel permits ready repairing and replacing of teeth; complete independence and secure fastening of each tooth; great strength because of the angle steel construction and the abutment of the teeth against the hub; and the adaptability of the teeth to sharpen themselves automatically as they enter the soil.

Appellants contend that the patent is invalid for the reason that the patentee merely followed the teachings of the prior art and exercised only the routine skill of the mechanic in embodying in his spider wheel old elements with slight modifications which were expedients obvious to anyone skilled in the art. The Rude patent in suit was filed in 1930, and granted in 1932.

In support of their contentions, appellants rely upon the following patents prior to Rude to establish that invention was lacking in the patent in suit: Van Nostrand, No. 955, 297, filed in 1909, and granted in 1910; Haldin, No. 1, 178, 515, filed in 1914, and granted in 1916; and Boyer (French patent), 666, 367, filed in 1928, and granted in 1929.

The Van Nostrand spider wheel for cutting into and pulverizing soil has pointed teeth secured to a disc by fastenings alternately secured to the opposite sides of the disc, and with the inner ends of the teeth abutting the central hub. The above construction is the same as that of the patent in suit except that the teeth are made of flat steel, and not angle steel, as in Rude's patent.

Angle steel teeth, however, appear in the Boyer patent for a 'rotary digging machine.' But the Boyer teeth were not riveted alternately to opposite sides of the disc; they did not abut the hub; they all faced the same way, resulting in a narrower digging path than in Rude where the alternate angle teeth fastened on opposite sides of the disc, faced outwardly, and thus cut a wider path.

The Haldin patent for a harrow, relied upon by appellants as prior art, is a one-piece spider wheel, with pointed angle steel teeth alternately facing opposing sides of the disc. Haldin differs from the Rude, Boyer, and Van Nostrand spider wheels in that these latter three wheels have the separate teeth attached to the disc, while in Haldin, the teeth and the disc are made out of a single piece of metal.

From the foregoing, it appears that it was old in the art to use a spider wheel harrow with pointed teeth fastened to a disc; that it was old to fasten the teeth in such a manner that they abutted the hub; that it was old to dispose such teeth alternately on opposite sides of the disc; and that it was old in the art to use angle steel teeth. Rude, therefore, was not the first to employ angle steel in a spider wheel construction; nor the first to fasten pointed steel teeth alternately to the opposite sides of a disc with their inner ends abutting the hub. What Rude did was to substitute the angle steel teeth found in the Boyer patent for the flat steel teeth of Van Nostrand. However, this substitution was suggested by the Haldin patent which discloses the one-piece spider wheel with steel teeth, angle shaped, in cross section, and pointed and arranged alternately on opposite sides of the disc.

From the above, it seems clear that the claims of the patent in suit read on the Boyer angle steel teeth, assembled in the Van Nostrand spider wheel, which, it would appear, was obviously suggested by the Haldin patent, with its teeth of angle shape arranged alternately on opposite sides of the disc, as above remarked.

The above conclusion, however, is not decisive of this suit, but only brings us to the determining issues in the case: (1) whether the Van Nostrand, Boyer, and Haldin spider wheels were in an analogous art and, therefore, negatived invention in the patent in suit; (2) whether appellants can rely upon a combination of prior patents, including a foreign patent, as prior art, to negative the validity of appellee's patent; and (3) whether appellee's patent was invalid for want of invention.

We proceed, first, to discuss the issue with respect to analogous art.

It is claimed by appellee that the spider wheel disclosed in the Van Nostrand patent is in a nonanalogous art. Counsel emphasizes that the Van Nostrand wheel is merely

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a rotary brush and clod cutter; that in the agricultural machine in which it is used, such spider wheel is held well above the ground and is utilized for the purpose of clearing out an accumulation of dirt and brush between the teeth of another part of the Van Nostrand mechanism of an entirely different character. It is this latter mechanism that engages and cuts into the ground, lifting the soil up in a strip of earth which is afterward subjected to the action of a row of cutting spider wheels that follow behind the soil-stripping mechanism. Counsel for appellee further emphasizes that the Van Nostrand wheel is, above all, not a hoe, as is the patent in suit; that it has a different function and a different purpose; and that it is, therefore, in a nonanalogous art.

As to the Haldin wheel, appellee submits that it is a 'harrow, ' as is disclosed in the title of the patent. It is also argued by appellee, as in the case of the Van Nostrand wheel, that the Haldin wheel 'is not a 'hoe' designed to lift the clods and turn them over to expose the weed roots to kill them while the crop is growing, ' but, as described in the patent, is an implement that pulverizes the soil and mixes the several layers of soil together, preparatory to planting the seeds.

With respect to the Boyer patent, appellee declares that it lacks all the essential features of the patent in suit, and that it was before the Patent Office and discarded by the Examiner. Further, appellee says that Boyer is relied upon by appellants to supply the missing links to the Haldin patent by showing detachable teeth on a disc, but that the difficulty with this idea is that these teeth were of a different shape, in that they are not curved, pointed, and self-sharpening; that they do not abut a hub to take end thrust; that they do not have the feature of being mounted in staggered relationship on opposite sides; and that they are used for a different purpose, that is, to make a fine, level seed bed prior to seeding.

With regard to analogous art, it is the rule that, though an inventor is conclusively presumed to know the prior art in his own and clearly allied lines of endeavor, he is not bound by what has been done in remote or nonanalogous arts. Ottinger v. Ferro Stamping & Mfg. Co., 6 Cir., 59 F.2d 640; Alemite Mfg. Corp. v. Rogers Products Co., Inc., 3 Cir., 42 F.2d 648. A reference, in order to be effective to disprove the novelty of an alleged invention, must relate to the same art as the questioned invention, or to an analogous or closely related art. Wallace v. Mandel Bros., Inc., 7 Cir., 164 F.2d 861. 'We are of opinion that whether arts or uses are analogous depends upon the similarity of their elements and purposes. If the elements and purposes in one art are related and similar to those in another art, and because and by reason of that relation and similarity make an appeal to the mind of a person having mechanical skill and knowledge of the purposes of the other art, then we are of opinion that such arts must be said to be analogous, and, if the converse is true, they are nonanalogous arts.' A. J. Deer Co., Inc., v. U.S. Slicing Mach. Co., 7 Cir., 21 F.2d 812, 813; Copeman Laboratories Co. v. General Plastics Corp., 7 Cir., 149 F.2d 962; Wallace v. Mandel Bros., Inc., supra. In Dunham Co. v. Cobb, 6 Cir., 19 F.2d 328, 329, the patent in suit, which the court held invalid for want of invention, was for an agricultural implement, designated as a lang roller discs...

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