Detroit Carrier & Mfg. Co. v. Dodge Bros.

• Decision Date: 29 June 1929
• Docket Number: No. 5121.,5121.
• Parties: DETROIT CARRIER & MFG. CO. v. DODGE BROS.
• Court: U.S. Court of Appeals — Sixth Circuit

33 F.2d 743 (1929)

DETROIT CARRIER & MFG. CO. v. DODGE BROS.

No. 5121.

Circuit Court of Appeals, Sixth Circuit.

June 29, 1929.

George F. Scull, of New York City (Livingston Gifford, of New York City, Fred Gerlach, of Chicago, Ill., and S. Pointer Bradley, of Detroit, Mich., on the brief), for appellant.

Emerson R. Newell, of New York City, (Charles Wright, Jr., and Beaumont, Smith & Harris, all of Detroit, Mich., on the brief), for appellee.

Before HICKS, HICKENLOOPER, and KNAPPEN, Circuit Judges.

KNAPPEN, Circuit Judge.

This suit was brought for alleged infringement of United States patent No. 1,179,717, applied for January 12, 1914, issued April 18, 1916, to Harbridge, assignor to plaintiff, relating to carriers for automobiles adapted to be attached to the rear of an automobile, and more particularly to devices for carrying a spare tire, a tail lamp and a number plate. We here reproduce Figure 3 of the patent drawings, being a perspective view of the tire support:

The specification states:

"The improved carrier comprises a supporting ring a, and means for adjustably securing said ring at the rear of an automobile. The securing means comprises a plurality of side brackets b and c. A cross-bar d extends diametrically across the ring a and is secured to the inner side of the supporting ring a at either end by rivets f passing through it and the supporting ring. Crossbar d serves as a brace for rigidly securing brackets b and c and to rigidly cross connect the side portions of the band or ring a. Brackets b, c, incline outwardly and away from the ring a and are each riveted to bar d, as at g. Each of the brackets b, c, comprises a sleeve h, as shown in Fig 3, which has an internally screw-threaded socket, which is adapted to receive a correspondingly threaded terminal k of a bracket rod j to adjustably connect the rods and brackets. Lock nuts l are adapted to rigidly secure the rods and sleeves in adjustable relation."

The flattened terminals of the forwardly, downwardly, and outwardly extending rods j are secured to the frame or body, while the brackets b, c, and rod j secure the sides of the ring to the body of the vehicle. Screwheaded adjustments between these rods and brackets enable the tilting of the ring in its application to the vehicle, so as to dispose it the desired distance from the back thereof and to adapt it for attachment to vehicles of different sizes or shapes. The lower portion of the ring a is secured to the body by the flattened end n of the bracket c', whose screwthreaded sleeve, locked by the nut e, engages the rod p, provision being made for adjustment of the ring to the desired relation to the frame. A flange a2 on the ring enables the snug seating of the rim there against, and serves to strengthen or stiffen the ring, which is usually of the same diameter as the felloe band of the wheel for which the rim is adapted, the band being somewhat smaller than the inner periphery of the rim — to accommodate wedge lugs between the felloe band and rim. To hold the ring firmly in position at different points around the periphery of the rim proper, bearing surfaces therefor are provided through indentations á on the ring. The specification permits the alternative use of studs on the rims, adjustment of tire flange and engaging holes in the ring. It is also suggested that in the absence of the studs lugs d' may be formed on the rim, engaging the rearside of the upper portion of the ring, although without such studs the rim and tire would, according to the specification, be held firmly in position by other features. The lower portion of the rim is adapted to be held on the ring by a wedge lug capable of engaging the rear side of the rim, and be there locked into position. The spare rim may be placed on the carrier by loosening the wedge lug and turning it upwardly, whereupon the upper part of the rim may be dropped in place on the upper part of the ring, and the rim then swung forwardly until the wedge lug is forced and secured in position. To remove the rim it is necessary only to loosen the wedge lug, to swing the lower part of the ring rearwardly, then lift the rim to disengage its upper portion from the ring. The means for attaching the lamp bracket and number plate are too simple to require explanation.

After the cause was at issue, on motion by defendant, and with the consent of both parties, the District Court referred the cause to a standing master, to take and report to the court the testimony of all witnesses for both parties, and after the taking of the testimony had been begun it was stipulated that the order of reference be enlarged "so that the master shall also report his findings of fact and conclusions of law on the entire case, including all of the testimony taken." The master made elaborate findings of fact and conclusions of law, holding all the claims in suit not only anticipated by disclosures and structures in the prior art, but also invalid for lack of patentable invention, aside from any question of invalidity, anticipation or prior art. The master recommended dismissal of the bill of complaint. Plaintiff's exceptions to the report (with one exception not requiring mention) were overruled, and final decree entered accordingly.

At the outset we are met with a contention by defendant that the parties having consented that under the reference to the master he report his findings of fact and conclusions of law, the facts found by him are conclusive if supported by any testimony. We cannot assent to this proposition. Passing the consideration that the trial court's approval of the stipulation, made after the taking of testimony had been begun, does not affirmatively appear of record, we think the case does not fall within Kimberly v. Arms, 129 U. S. 512, 9 S. Ct. 355, 32 L. Ed. 764; Davis v. Schwartz, 155 U. S. 631, 636, 637, 15 S. Ct. 237, 39 L. Ed. 289, and kindred cases, where the reference seems to have been construed as being in effect to hear and decide all the issues in the case. Here the reference was merely to take the testimony and "report his findings of fact and conclusions of law on the entire case, including all of the testimony taken." The District Judge had thus full power to review the master's findings of fact, as well as of law. Edward G. Budd Mfg. Co. v. C. R. Wilson Body Co. (C. C. A. 6) 21 F.(2d) 803, 805 (certiorari denied by the Supreme Court 276 U. S. 632, 48 S. Ct. 325, 72 L. Ed. 742). Such findings of fact, however, concurred in by the district judge, will not be disturbed on review by anything less than a demonstration of plain mistake. Dickinson v. O. & W. Thum Co. (C. C. A. 6) 8 F.(2d) 570, and cases cited at page 572.¹

But conclusions of law, although concurred in by master and judge, are always open to review. Dickinson v. Thum Co., supra, 8 F.(2d) at page 572. And while questions of invention or patentable novelty or infringement are, in a proper sense, issues of fact, they so far present questions of law as to be properly reviewable here. Budd Mfg. Co. v. Wilson Body Co., supra, of 21 F.(2d) at page 805. It should, however, go without saying that such concurrent findings of law by master and judge should not be lightly disregarded.²

The broadest of the claims in suit are Nos. 17 and 19, which, as allowed by the Patent Office, we print in the margin.³ We agree with the courts below that these claims are invalid, both for anticipation and for lack of invention. The earliest claimed date of Harbridge's conception is the last week of January, 1913, at the Chicago Automobile Show. It is established that the Perrin carrier, on a Lozier car, was in public use as standard equipment as early as January, 1912. The Lozier-Perrin carrier seems to have differed in no substantial respect from the Harbridge carrier as regards the claims we are now considering, except that the Lozier-Perrin carrier had a circle of angle iron, the horizontal portion of which constituted a ring, making a vertical flange at one edge of the ring, which flange, plaintiff claims, does not form an internal seat for a demountable rim. In interference proceedings between Perrin and Harbridge, while the instant case was pending in the District Court, it was held by all the tribunals of the Patent Office that the rim carriers of both parties had substantially the same construction, that the claims (here numbered 17 and 19) read on both, and that Perrin's claims were entitled to priority. For the opinion of the Court of Appeals of the District of Columbia (affirming the decision of the Commissioner of Patents), see Harbridge v. Perrin, 54 App. D. C. 106, 295 F. 927. Certiorari was denied by the Supreme Court, 264 U. S. 597, 44 S. Ct. 454, 68 L. Ed. 868. Harbridge thereupon disclaimed the combination of claims 17 and 19, except where (claim 17) the peripheral flange has a portion which fits into and forms an internal seat for a demountable rim, and (claim 19) where the outwardly extending flange has a peripheral portion which forms an internal seat for a demountable rim. Claims 17 and 19 must therefore be considered here, as below, in the form limited by the disclaimer. Michigan Carton Co. v. Sutherland Paper Co. et al. (C. C. A. 6) 29 F.(2d) 179. The decision in Harbridge v. Perrin must be accepted by us.

Besides the Perrin-Lozier carrier, it is established that the Stevens-Duryea carrier was in public use as standard equipment previous to and at the time of Harbridge's conception — as used on certain cars of the runabout type, and as sufficiently described by the master as having "a wooden ring like the felloe of a wheel, it carried four bolts with threaded ends, projecting from the upper side of the ring. Attached to the other side of the ring were four feet having inclined faces, against one side of which the ring rested, and which constituted in function a sectional flange on the side of the ring opposite the bolt ends. Each projecting bolt carried a `Continental'...