Graham v. Cockshutt Farm Equipment, 16955.

• Decision Date: 05 June 1958
• Docket Number: No. 16955.,16955.
• Citation: 256 F.2d 358
• Parties: William T. GRAHAM and Graham-Hoeme Plow Co., Inc., Appellants, v. COCKSHUTT FARM EQUIPMENT, Inc., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

256 F.2d 358 (1958)

William T. GRAHAM and Graham-Hoeme Plow Co., Inc., Appellants, v. COCKSHUTT FARM EQUIPMENT, Inc., Appellee.

No. 16955.

United States Court of Appeals Fifth Circuit.

June 5, 1958.

Orville O. Gold, Claude A. Fishburn, Kansas City, Mo., Clayton Heare, Amarillo, Tex., for appellants.

S. Tom Morris, Amarillo, Tex., for appellee.

Before HUTCHESON, Chief Judge, and TUTTLE and WISDOM, Circuit Judges.

TUTTLE, Circuit Judge.

This is an appeal from a judgment of the trial court finding the Graham Patent No. 2,627,798, "Clamp for Vibrating Shank Plows" valid but not infringed. There is no cross appeal by appellee from the finding of validity of the patent, but appellee contends this issue is still open for review under our recent decision in Guiberson Corp. v. Equipment Engineers, Inc., 5 Cir., 252 F.2d 431.

This patent is not a stranger to this Court, it having been the subject of an opinion in which we reversed the trial court's finding that it was invalid. Jeoffroy Mfg. Co., Inc., v. Graham, 5 Cir., 219 F.2d 511. It is also the subject of another decision which comes up on a citation by Graham for contempt of the trial court's injunction against infringement by Jeoffroy Mfg., Inc., in a case decided simultaneously herewith, 5 Cir., 256 F.2d 360. We think it unnecessary, therefore, to make a detailed description of the patent except as it is germane to our discussion of the alleged infringement.

We agree with appellee that this Court still has the power to change its position as to the validity of the Graham patent No. 2,627,798, even though we have previously held it valid, because the alleged infringer here is a different party and is not bound either by res judicata or estoppel by judgment. We also agree that this question is open to us on appeal, even though no cross appeal was taken from the Court's judgment in favor of validity. See Guiberson Corp. v. Equipment Engineers, Inc., supra. We conclude, however, after careful consideration, that our decision previously made as to the validity of this patent should stand. We, therefore, turn to the question of infringement. In upholding the validity of this patent we said:

"* * * Though we do agree that 798, as an improvement combination, is not entitled to any broad degree of protection over 811, it still seems to us that its hybrid type structure combining the wear-resisting rotating pivot, in part reminiscent of the prior art, with the new shank and stirrup arrangement permitting some of that same advantageous flexibility inherent in the old 811 structure, reveals sufficient indicia of novelty and invention to justify limited protection * * *" Jeoffroy Mfg. Co. v. Graham, 219 F.2d 511, 518, 519.

Thus, we indicated that being a combination patent in a crowded art, the patent would likely not have wide application.

In essence the patent, relating to a ground-working tool designed with springs to make possible the operation of the plow over rocky ground because of ability of the chisel end of the tool to rise over the rocks it encounters, embodies the combination of elements that permit the shanks of the plows upon striking obstructions, to rise and flex within permissible range of movement.

As the combination, not the result, is what is patented, obviously not every arrangement of elements that achieves the same degree of movement and flexibility is an infringing device. Infringement exists only if the patentee's arrangement is copied, or if, by use of equivalents, the same arrangement is used except that for some element of it equivalents are substituted.

As pointed out above, no part of this device is itself patented or subject to patent, since everyone of the parts is old, and its use independently in the present combination is a long...