Hartford-Empire Co. v. Hazel-Atlas Glass Co., 4414.

Citation59 F.2d 399
Decision Date05 May 1932
Docket NumberNo. 4414.,4414.
PartiesHARTFORD-EMPIRE CO. v. HAZEL-ATLAS GLASS CO.
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Byrnes, Stebbins & Parmelee, of Pittsburgh, Pa. (C. P. Byrnes, of Pittsburgh, Pa., Thomas G. Haight, of Jersey City, N. J., V. M. Dorsey, of Washington, D. C., W. J. Belknap, of Detroit, Mich., and H. K. Smith and R. D. Brown, both of Hartford, Conn., of counsel), for appellant.

Charles Neave and Stephen H. Philbin, both of New York City, and Howard R. Eggleston, of Washington, D. C., for appellee.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

BUFFINGTON, Circuit Judge.

Of all the major industrial arts, glass blowing has been the slowest to change from hand to machine methods. In the three hundred years following the bringing of the glass-blowing industry to the United States by the Jamestown colonists and their building of two factories to make beads for sale to the Indians, there has been little, if any, change in the blowing of glass containers of any kind. This is due to several causes. The high skill and delicate handling of molten glass requisite for a glass blower made his art one where human skill seemed indispensable and the possibility of reproducing this human skill by a machine seemed impossible. Second, molten glass, owing to its intense heat, its rapid change from fluidity to viscosity, made the art one where observation of the characteristics of glass in these rapid changes was very difficult. And, lastly, the skill of the glass blower and the strangle hold of the glass blowers' unions made organized labor an adamant wall to be overcome by experimenters in their efforts to construct machines. Whatever were the causes, the art for three hundred years showed no advance. An appreciation of these facts and others that might be suggested must now be had by this court to enable it to give due regard and due reward to those who have brought about a rapid and well-nigh miraculous change in the glass-blowing art.

The situation in this present case is in many particulars not unlike that of another glass-blowing case reported in Consolidated Window Glass Co. v. Window Glass Mach. Co. (C. C. A.) 261 F. 362, 368, 369. It involved the kindred step of changing from the lung blowing to the machine blowing of window glass. There, as here, the experiments extended over several years. They were carried on in barricaded buildings owing to the hostility of the labor unions. In that case the trial judge (see page 366 of 261 F.) detailed at length some of the difficult problems encountered in changing from lung blowing to machine blowing of window glass, and many such like problems here arose in changing from lung-blown to machine-blown bottles. He there said: "It is, perhaps, true that few, if any, of the arts presented so many perplexing problems as the drawing of glass cylinders * * * from a molten bath. These problems appeared at the very beginning of the operation, and rose up persistently all along the way. The inventor had to deal with elemental actions, forces, and properties of matter * * * heat applied to the glass, and cold applied to the molten liquid; the properties and physical constitution of the glass as it passed from the solid to the liquid condition, through the plastic condition up to the solid state again. * * * These problems were not only numerous and complex, but many of the difficulties were latent and were only located after repeated experiments and failures. When the difficulty had been definitely determined and located, the remedy had to be found."

The recited problems and many others existed in the present attempt to change from lung blowing to the machine blowing of bottles in the present case. It follows, therefore, a realization of the practical difficulties confronting an inventor in the present case, as we have said, is necessary to a just decision of the case and is in line with what this court pointed out in the foregoing case, when we said that it "points out the proper attitude of a court toward the patents which have bridged the great chasm between the hand-blown and machine-drawn window glass"; and here between lung blowing and machine blowing of narrow necked bottles. In that case millions of dollars were sunk in experiments covering several years, and as there stated: "The plants were closed and the operations carried on in the most carefully guarded way."

Taking up the ancient lung-blown method: Its usual course was for a workman to insert a "pontil" or steel rod into the opening or "glory hole" of a glass tank or furnace. Rapidly revolving this pontil, he gathered a mass of molten glass on its end, withdrew it from the furnace, and, while blowing, worked it over a mold by turning while it was in a viscous, nonfluid condition. By skillfully blowing and turning, he was able to allow a desired quantity of viscous glass, or "gob," to hang in suspension from the mass on the pontil. Contact of the air with this suspended mass made the glass still more viscous and caused a skum or skin over its outer surface. This "gob" or mass, influenced by the gravity of its own weight, or if left without turning of the pontil rod, descended with increasing velocity, leaving a "gob" tail which gradually grew thinner and more attenuated until the whole structure assumed what was called a "tadpole" shape. If such a tadpole shape was allowed by the blower to enter the mold, the tail would follow the main mass and fall in layers upon the gob, which latter, when blown into the form of the mold, would, for various reasons, be unequally distributed and thus make the article thicker at one side than elsewhere, and would also show objectionable waves in the blown article. To avoid these defects, which indeed could not always be overcome by even the most skillful blower, another skilled workman stood by with shears, and as soon as the pontil operater had depending or in suspension a gob of sufficient quantity and of a size approximately like the walls of the mold, the other workman sheared the mass loose while in suspension and it was dropped into the mold and was blown to final form. The "tadpole," with its attenuated tail, the lapping of that tail over the gob, and a gob of a size sheared in suspension and of a shape to confrom to the sides of the mold, are well known to those familiar with the practices of the lung-blown art.

But, of course, the work of the glass blower was limited in product and, owing to lack of skill, inattention, or other causes affecting different blowers, bottles and other containers were oftentimes wavy in appearance and the glass on the walls of the containers was of unequal thickness, which was, of course, highly objectionable. But so the lung-blowing art continued. Meanwhile there had come into it, first, the placing of molds on a revolving frame or table, and, second, the use of air in blowing, steps which are described in reported cases involving those features. But the most radical step in bottle blowing occurred about 1904, when the Owens process was invented and came into rapid use. Without entering into details, it suffices to say that in the Owens invention molten glass, at a very high temperature and of great fluidity, was drawn up by suction to Owens molds and there mechanically blown. It will be observed that in the hand method the gob dropped into the mold was of desired quantity and desired artificial shape. It will also be noted that in the old blowing process there was no continuity and no regularity of gob-forming, but each gob was formed individually as the individual blower blew and shaped it. But in the Owens device there was constant feeding of the highly heated fluid glass, there was a continuous, even, and uniform suction pull, a constant stream was fed to the molds, with the resultant stream of gobs, identical in all ways. When the machine was properly timed and adjusted, there was secured a product uniform in character and of a quantity limited only by the number of machines used. Owens' device was a great step. The basis of its success was a constant stream of glass so high in temperature as to maintain fluidity, as contrasted with that viscosity and lower temperature used in lung blowing. In his process fluidity was essential and viscosity was fatal.

As we have indicated, the labor organizations were vitally interested in the supplanting of hand blowing by mechanical blowers, and we naturally look to the proceedings of their several organizations to find what machine blowers were of practical working capacity and ones which they regarded as supplanting lung blowing. We can therefore, and do, rely on their opinion in that regard, for successful machine blowers largely spelled ending of the supremacy of lung blowing. In an article prepared by the president of one of these unions, he said: "Up to about 1892 practically all of the bottles manufactured in the United States were made by hand blowers and the introduction of machinery had not received serious consideration from the association. During the period extending from about 1892 until perhaps 1904, several bottle-making machines were tried, some of which were put into successful operation, supplanting a certain number of hand workmen. All of these machines, however, required the service of one or more skilled glass workers. They all required a gatherer to feed the glass to the machine and some of the machines were operated entirely by hand. Some required a transfer boy and take-out boy. Some of these machines were not automatic at all, in the present meaning of the word. The `Johnny Bull,' for example, was a highly successful machine, and it displaced a certain number of workers, but the only automatic feature of the machine was that compressed air was used instead of lung power. All these mechanical operations were manually actuated."

It is thus clear that during that time no mechanical blower of any importance was invented, but about 1905 a...

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