285 F.2d 244 (6th Cir. 1960), 13998, Cold Metal Products Co. v. E. W. Bliss Co.
|Citation:||285 F.2d 244, 128 U.S.P.Q. 59|
|Party Name:||COLD METAL PRODUCTS COMPANY and The Youngstown Research and Development Company, Defendants-Appellants, v. E. W. BLISS COMPANY, Plaintiff-Appellee.|
|Case Date:||December 21, 1960|
|Court:||United States Courts of Appeals, Court of Appeals for the Sixth Circuit|
Charles H. Walker, New York City, James H. Tilberry, Williams, Tilberry & Golrick, Cleveland, Ohio, Donald E. Degling, Fish, Richardson & Neave, New York City, on brief, for appellee.
Before McALLISTER, Chief Judge, and MILLER and CECIL, Circuit Judges.
SHACKELFORD MILLER, Jr., Circuit Judge.
This action is another suit among the many that have been instituted over the past twenty-five years, involving patents for the cold rolling of metal in strip form. It was filed in the District Court by the appellee E. W. Bliss Company, hereinafter called Bliss, on May 27, 1955, seeking a declaratory judgment that Lockwood U.S. Patent No. 2, 706, 422, entitled 'Metal Rolling, ' hereinafter referred to as the Lockwood patent, was invalid. This appeal was taken from a judgment declaring the patent invalid.
The complaint prayed for an injunction against the defendant-appellant, The Cold Metal Products Company, hereinafter called Cold Metal, as the sole owner of the patent, and those in privity with it, from threatening or prosecuting any action against Bliss or against any customers of Bliss, charging either direct or contributory infringement of the Lockwood patent. Cold Metal filed an answer stating that it was the owner of the Lockwood patent but denying that the patent was invalid. It also denied that any justiciable controversy existed between the parties under the Declaratory Judgment Act, Sections 2201 and 2202, Title 28 U.S.C. and for that reason prayed that the complaint be dismissed for lack of jurisdiction. The motion to dismiss for lack of jurisdiction was overruled by the District Court.
Cold Metal states in its brief that although it believes the Court lacks jurisdiction under the Declaratory Judgment Act, the appeal is not being pressed on that point, but the issue is called to the Court's attention for whatever action it might wish to take. We are of the opinion that the order of the District Judge overruling the motion to dismiss for lack of jurisdiction was proper and it is accordingly affirmed.
In the District Court the action was consolidated for hearing with three other actions involving the validity of Steckel Patents Nos. 1, 779, 195 and 1, 744, 016 relating to improved mills and methods for the rolling of hot and cold metals in strip or sheet from. The District Judge discussed at length in the same opinion the Steckel patents and the present Lockwood patent, the opinion being reported at E. W. Bliss v. Cold Metal Process Co., 174 F.Supp. 99. It deals with the Lockwood patent at page 134, to which reference is made.
With respect to the rulings on the Steckel patents, four appeals were taken, namely, Nos. 13, 994, 13, 995, 13, 996 and 13, 997. These appeals have been disposed of in a separate opinion handed down this day, to which reference is also made That opinion refers by cited cases to the extensive litigation which has been engaged in involving patents in this particular field. The opinions in those cases are more than sufficient to state the problems in the steel industry, to the correction of which the Steckel patents and the Lockwood patent were directed. In addition, the opinion of the District Judge in the present appeal involving the validity of the Lockwood patent contains a thorough and detailed discussion of the patent and the prior art, together with the reasons of the Court for holding the patent invalid. We have given careful consideration to the large record in this
case and to the thorough and detailed briefs and responsive briefs of the respective parties, but in view of the foregoing, and particularly the thorough opinion of the District Judge in this case, we will limit this opinion to a statement of the issues presented and the rulings thereon with the reasons therefor, without detailed discussion thereof.
Application for the Lockwood patent was filed May 2, 1947. The patent issued April 19, 1955, to Cold Metal as assignee of Lockwood. Thereafter, on or about December 30, 1957, the patent was assigned to The Youngstown Research and Development Company, which is a coappellant with Cold Metal in this appeal.
The Lockwood patent is a method patent containing 9 claims relating to the rolling of metal in strip form. Basically, the Lockwood method comprises passing a strip between small work rolls of a straight 4-high mill to effect a substantial reduction, supplying a substantial amount of the power required by tension on the strip, and supplying a substantial amount of the power required by driving the backing rolls of the mill. The specification describes it as follows:
'Thus it will be seen that the entire drive for the work rolls is a frictional drive, that this frictional drive extends throughout substantially the entire length of the roll faces, and that there is a balancing of the torque applied to the work rolls. That part of the power for driving the work rolls supplied through the driving of the backing rolls is transmitted to the work rolls by the frictional engagement of the rolls which extends throughout the roll faces. That part supplied through the pull on the strip is likewise transmitted to the work rolls by the frictional engagement between the strip and the work rolls, and it extends throughout substantially the length of the roll faces. This latter frictional force has a forward component whereas the former force has a rearward component with the result that there is a balancing of forces which serves to hold the small work rolls in line in the mill. All bending of the work rolls is eliminated and, since there is no twisting of the work rolls, such as is encountered when they are directly driven, extreme accuracy can be achieved along with the other advantages mentioned below.'
Claim 1 of the patent reads as follows:
'The method of cold reducing metal in strip form in a mill of the 4-high type having a pair of work rolls and a backing roll for each work roll the work rolls and the backing rolls being arranged in frictional engagement with each other and in alignment with their longitudinal axes in substantially the same vertical plane, which comprises the steps of passing the strip back and forth between the work rolls to effect a substantial reduction in the thickness of the strip, applying a forward tension on the delivered strip of sufficient magnitude to supply a substantial portion of the power required to move the metal between the rolls and reduce it in thickness, and at the same time positively driving the backing rolls and thereby driving the work rolls by the frictional engagement between the backing rolls and the work rolls to thereby supply a substantial part of the power required to reduce and deliver the strip.'
In nontechnical language the substance of the claimed invention is that a 'substantial portion' of the power required to move the metal between the rolls and reduce it in thickness is supplied by applying a forward tension on the delivered strip and, at the same time, a 'substantial part' of the power required is supplied by driving the backing rolls and thereby driving the work rolls by the frictional engagement between the backing rolls and the work rolls. The other claims define the power distribution necessary to operate the method in varying ways, but the substance of the invention remains the same. In specific claims, the
power distribution is defined as 50% Contributed by both the tension on the strip and positive backing roll drive. In others, the amount supplied by tension is defined as either 20-70% Of the power applied to the...
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