Goodyear Tire & Rubber Co. v. India Tire & Rubber Co.

• Decision Date: 01 July 1931
• Docket Number: No. 5695.,5695.
• Citation: 51 F.2d 204
• Parties: GOODYEAR TIRE & RUBBER CO. v. INDIA TIRE & RUBBER CO.
• Court: U.S. Court of Appeals — Sixth Circuit

51 F.2d 204 (1931)

GOODYEAR TIRE & RUBBER CO. v. INDIA TIRE & RUBBER CO.

No. 5695.

Circuit Court of Appeals, Sixth Circuit.

July 1, 1931.

D. W. Cooper, of New York City (Ernest D. Given, of New York City, and Tolles, Hogsett & Ginn, of Cleveland, Ohio, on the brief), for appellant.

A. L. Ely, of Akron, Ohio (Ely & Barrow, of Akron, Ohio, on the brief), for appellee.

Before MOORMAN, HICKS, and HICKENLOOPER, Circuit Judges.

HICKENLOOPER, Circuit Judge.

This case involves questions of the validity and infringement of patent No. 1,462,453, issued to W. G. Lerch, July 17, 1923, for an automobile tire construction. At the time of the application the component parts of an automobile tire were well known. They were: (1) The carcass, made up of a varying number of plies of fabric (woven or cord), covered by and impregnated with rubber, and forming the central body of the tire; (2) the cushion, a layer of softer and more pliant rubber around the periphery of the carcass and usually of about the width of the tread; (3) the breaker-strip, which, prior to Lerch, was commonly a strip of bias cut, open mesh, woven fabric located between the cushion and the tread and having various functions in transmitting and distributing blows or impacts from the tread to the carcass, and in preventing tread separation due to such impacts and to torque; and (4) the tread, which consisted of a thicker and harder layer of rubber around the outside periphery of the tire. Lerch claimed to have been the first to use breaker-strips of the also well-known "cord" fabric, laid with the cords "arranged diagonally with respect to the plane of the tire but at right angles with respect to each other," assuming the use of two plies. Claim 2, in suit, is printed in the margin.¹ This claim was held valid and infringed.

Defendant below appeals.

The patent to Petersen, No. 1,152,756, September 7, 1915, shows identically the same general elements of construction as are disclosed by Lerch, viz., carcass, cushion, cord breaker-strip, and tread, but is said to be distinguished from the patent in suit in that the preferred form of Petersen has the cords located at right angles to the circumferential plane of the tire. However, Petersen says in his specification: "Moreover, this invention is regarded, and understood to be, broad enough to include any arrangement of the elements 5 (the breaker-strip) so long as they extend more in a transverse than a longitudinal direction."

The patent to Hopkinson, No. 1,374,505, April 12, 1921, for a method of making motor vehicle tires, also discloses the use of cord fabric between the cushion and the tread, "the threads of these plies being spaced apart and serving as the `breaker' strips." He also directs that the threads of his breaker strips be laid "at angles of 44°, 43½°, 42°, and 41½° to the axis respectively," but here also is said to be a distinguishing feature in that the breaker strips are shown as extending from the bead on one side entirely around the carcass to the bead on the other side. And yet Hopkinson says that "instead of the breaker strips here referred to, the ordinary square woven bias-cut fabric may be used and the width of these breaker strips may be varied as desired." To meet this it is contended that the use of a narrow cord breaker strip was not in contemplation, and that variation from the preferred form shown was not intended to be of any such substantial proportions. Other patents are referred to, such as those to Palmer, No. 924,186 (1909), and to Dunlap, No. 534,867 (1895), and the patents cited during prosecution of the application, but the disclosures in the patents to Petersen and Hopkinson are the closest references.

Two prior uses are...