Ohmer Fare Register Co. v. Ohmer

• Decision Date: 15 December 1916
• Docket Number: 2857.
• Citation: 238 F. 182
• Parties: OHMER FARE REGISTER CO. v. OHMER et al.
• Court: U.S. Court of Appeals — Sixth Circuit

238 F. 182

OHMER FARE REGISTER CO. v. OHMER et al.

No. 2857.

United States Court of Appeals, Sixth Circuit.

December 15, 1916

R. J McCarty, of Dayton, Ohio, for appellant.

H. A Toulmin, of Dayton, Ohio, for appellees.

Before KNAPPEN and DENISON, Circuit Judges, and McCALL, District judge.

KNAPPEN Circuit Judge.

Suit for infringement of three patents relating, respectively, to street car fare registers or fare recorders. The appeal is from a decree dismissing the bill for noninfringement.

The first patent (reissue No. 11,911, May 28, 1901, to John F Ohmer and another), relates to means for operating fare registers. The original patent issued October 24, 1899, and was followed by an intermediate reissue October 13, 1900. The patent expired pending this appeal. When the original patent was applied for (January 19, 1899), registers counting and indicating a single class of fares were old; and multiple fare registers-- that is to say, registering two or more classes of fares-- were not new. Such multiple registers were not only of the portable class, such as illustrated by Hornum's 1875 patent, and that to Ohmer himself issued in 1896, but included several types designed for permanent attachment to the car, as illustrated by the patent to Boyd (1896), which registered three separate classes of fares, the Wright patent (1896), also registering three classes of fares, and the patent to Ohmer himself (1897), adapted to a plurality of fares (the drawings showing five different classifications); and Kelch had, in 1898, applied for a patent (granted in 1902) disclosing mechanism for not only indicating and counting, but also for recording, two or more classes of fares. At least one three-fare register was in commercial use when the patent in suit was applied for.

The reissue in suit has no relation to the mechanism for indicating, registering, or recording fares. It relates merely to mechanism for operating or actuating the registering mechanism. The patent does not even mention fare recorders, although the means in question are obviously adapted to actuating the mechanism therefor, as well as that for counting and registering. The means illustrated and described in the patent include a series of vertically movable slides, each having a laterally projecting foot, and adapted each to engage and actuate a given series of registering wheels and a fare display tablet. The invention, as stated in the patent, comprises means for actuating these slides 'separately and at different times.' The actuating means consist of a depending arm carried by a horizontally slidable carriage, and adapted to be slid under the foot of the vertical slide associated with the desired bank of fare register wheels. The turning, by the conductor, of a rod conveniently disposed in the car (until the pointer on a dial indicates the fare collected), actuates a chain gear which moves the carriage to the desired position. This sets the actuator. A pull, by the conductor, on a rope connected with the transverse bar lifts it and in turn the depending arm, and thereby raises the vertical slide which actuates the register wheel.

The patent has 13 claims, Nos. 12 and 13 being the only ones in issue. Each of the first 5 claims contains as elements both the horizontal and vertical sliding members referred to. Claims 6 to 11 are somewhat broader. Claim 12 is printed in the margin. ^[1] Claim 13 differs from claim 12 only in calling for the second movement of the actuating device 'in planes at an angle to the plane of said initial movements,' and for parallel relation between the two operating members, which in plaintiff's mechanism, as disclosed and as manufactured, are the setting rod and the actuating rope

Defendants' operating means may be thus compared and contrasted with plaintiff's: (a) Defendant's actuating device, instead of being a depending arm of a transversely moving carriage, is a sleeve (splined upon a shaft) itself made to slide transversely of the machine, and carrying two oppositely disposed projections; (b) defendants' actuating device, instead of being brought into initial position by the turning of the rod which actuates the carriage from which the actuating arm depends, is brought into such initial position by means of a carriage or block between whose lugs the actuating member lies loosely, the carriage being mounted upon a screw shaft adjacent to the shaft carrying the actuating member; the revolving of the screw shaft by means of a rod causing the carriage to move upon its shaft, and thus the actuating member to move upon its own separate shaft; (c) defendants' actuating device, instead of being actuated by the lifting (through the rope) of the transversely moving member carrying the depending arm, is so actuated by the reciprocating movement, transversely of the machine (through the operation of a separate rod controlled by the conductor), of a shaft which, through suitable gears, turns the shaft on which the actuating device is splined, so bringing one of the projections thereon into engagement with the registering mechanism. Defendants' operating members are thus two separate rods, as compared with plaintiff's rod and cord; the two rods being disposed in the car parallel to each other. Defendants' operating mechanism differs materially from that of plaintiff, especially in the second actuating movement; but the claims in suit, if broadly construed, read upon defendants' device. An important question is whether, in view of the prior art, the claims are valid, if construed broadly enough to cover defendants' mechanism.

No invention was involved in the first element of the combination of the claims in suit, viz., an actuating device adapted to be moved, first, to the appropriate setting position, and, second, to actuate the registering mechanism; nor in making the planes of the two movements in angular relation to each other. Such devices were common, not only in the related arts, but in the fare register art itself; several of the devices disclosing actuators in the form of slides. For example: In the Roney and Mead voting machine patents (the voting register art is analogous to that of fare registers ^[2]) the actuator moves sidewise to engage the recorder slide and vertically to actuate it. In the Howe voting machine patent a crank handle operated by the voter moves a sliding block in position to actuate the desired slide, and the movement of the turnstile as the voter leaves the booth operates gearing which actuates the slide and records the vote. The plane of the second movement is angular to that of the first. It is enough, however, to refer to Ohmer's 1897 fare register patent, which discloses a plurality of slides radially mounted, an actuator in the form of a finger on a rod, movable to position to engage and actuate any one of the slides, as directed on the dial by the position of the pointer on the operating rod; the actuator being set by the rotation of the rod and actuated by a sliding movement outwardly. If it be thought that invention can be found in raising the actuating mechanism by means of a vertical slide, it is enough that the defendants have not that device.

It is evident that any invention which may be found to exist in the broad claims in suit must reside in the inclusion in the combination of two operating members, both connected with the actuator; the one adapted to shift it into setting position the other to actuate it. (We pass for the present the parallel position of the two operating members called for by claim 13.) In the fare-registering devices of Kelch and Boyd a separate operating device (in those cases a cord) is employed for each class of fare to be registered. In the Ohmer 1897 patent a single rod is employed for both the setting and actuating movements-- the rotary movement of the rod setting and actuator, and the longitudinal movement giving it an outward sliding motion. The inventors in the patent in suit which we are now considering distinguish their operating device as an improvement over such methods of operation. The ultimate question would seem to be whether, in view of the prior art, the broad employment of separate setting and actuating members, including their arrangement in the car, involves invention? According to Wright's fare indicator and recorder patent (1896), the desired counting and indicator wheel and the recorder wheel are operated by a cord in the car operated by the conductor; another cord, also in the car, is used for actuating the recording mechanism. In the Kennelly fare register patent (1895) the turning of a shaft by the conductor puts an actuator into operative connection with one of the two registers; a pull upon a separate rod moves the actuator and thus the register. True, in Wright's device the separate classifications are dollars, dimes, and cents, and his cords did not effect the same movements as plaintiff's rod and cord; and in Kennelly the selection is between 'up' and 'down' fares, and is made only at the beginning of the respective trips. But manifestly Wright's mechanism is equally adapted to three classifications of fares, and illustrates an arrangement of operating members within the car. Kennelly's mechanism is likewise adapted to the performing of both operations in the case of each fare. Kennelly's mechanism, however, was operable only at the register. ^[3] And it is said that the one-rod setting and actuating mechanism of Ohmer's 1897 patent was not suitable to long cars by reason especially of the tendency of the rod to sag and thus interfere with its effective longitudinal movement. It is urged that a valuable and novel feature is thus found in the parallel arrangement within the car of two operating members (setting and actuating respectively)...