285 F.2d 928 (6th Cir. 1960), 13891, Firestone v. Aluminum Co. of America

Docket Nº:13891.
Citation:285 F.2d 928, 127 U.S.P.Q. 407
Party Name:Floyd A. FIRESTONE, Plaintiff-Appellant, v. ALUMINUM COMPANY OF AMERICA, Electro Circuites, Inc. and Curtiss-Wright Corporation, Defendants-Appellees.
Case Date:November 22, 1960
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 928

285 F.2d 928 (6th Cir. 1960)

127 U.S.P.Q. 407

Floyd A. FIRESTONE, Plaintiff-Appellant,


ALUMINUM COMPANY OF AMERICA, Electro Circuites, Inc. and Curtiss-Wright Corporation, Defendants-Appellees.

No. 13891.

United States Court of Appeals, Sixth Circuit.

Nov. 22, 1960

Albert R. Teare; Teare, Kramer, Sturges & Fetzer, [*] Cleveland, Ohio, on the brief.

Carlton Hill, Chicago, Ill., and Stoddard B. Colby, Breed, Abbott & Morgan, New York City, for appellee.

Thomas J. Doran, Meyer, Baldwin, Doran & Young, Cleveland, Ohio, and Carlton Hill, Van Metre Lund, Hill, Sherman, Meroni, Gross & Simpson, Chicago, Ill., and William L. Hanaway, Stoddard B. Colby, Egon R. Gerard, Breed, Abbott & Morgan, New York City, on the brief for Aluminum Co. of America and Curtiss-Wright Corporation.

James H. Tilberry, Williams, Tilberry & Golrick, Cleveland, Ohio, on the brief for Electrocircuits.

Before McALLISTER, Chief Judge, and MILLER and CECIL, Circuit Judges.

CECIL, Circuit Judge.

This is an appeal from the District Court of the Eastern Division of the

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Northern District of Ohio. It is a companion case in this court to appeal No. 13890, Aluminum Company of America v. Sperry Products, Inc., 285 F.2d 911.

An action was brought in the District Court by the appellees of appeal No. 13890 against the appellants in that case for the infringement of four patents. These patents in the trial court and in appeal No. 13890 were denominated, for convenience, patents numbered 1, 2, 3 and 4.

The trial judge held that claim 7 of patent No. 2 was invalid and one of the plaintiffs, the appellant in this case, appealed. The subject matter of both of these appeals was involved in one trial in the action brought in the District Court. Reference should be had to the opinion in appeal No. 13890 for a complete understanding of the law and facts involved.

The appellant seeks a reversal of the judgment of the District Court in holding claim 7 of patent No. 2 invalid.

The claim describes a 'Voltage Train Generator.' This is a complete unit or device in itself and could be used in patent No. 1 in place of the 'Pulse Oscillator, ' 'High Frequency Oscillator' and 'Modulator.' It would also have various other uses apart from patent No. 1 and the improvements thereon by patents 3 and 4.

The elements of this patent are set forth in the claim which reads: 'A voltage train generator comprising a condenser, means for charging said condenser, a grid controlled discharge tube having its plate connected to one terminal of said condenser and its cathode connected through a resistor to the other terminal of said condenser, an oscillatory circuit connected in parallel with said resistor, a pair of output terminals connected to said oscillatory circuit, and means for periodically discharging said condenser though said tube.'

The defendants (as they were in the trial court) claim that the alleged invention was anticipated by prior art not cited by the patent office as follows: Langevin Patent No. 1, 858, 931, an article in The Hydrographic Review of 1924, the Newhouse Patent No. 2, 083, 344, an article by Everett in the standard textbook 'Communication Engineering' published in 1937, and the Gunn Patent No. 2, 461, 543.

The trial judge found that Langevin and the Hydrographic Review article both disclose an oscillatory circuit similar to that in claim No. 7. These references use a spark gap or spark break and the judge held that they were not the...

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