Oliver-Sherwood Co. v. Patterson-Ballagh Corporation
| Decision Date | 02 February 1938 |
| Docket Number | No. 8248.,8248. |
| Citation | 95 F.2d 70 |
| Parties | OLIVER-SHERWOOD CO. et al. v. PATTERSON-BALLAGH CORPORATION et al. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Miller & Boyken and A. W. Boyken, all of San Francisco, Cal. (Carroll A. Gordon, of San Francisco, Cal., of counsel), and Benjamin F. Bledsoe, of Los Angeles, Cal., for appellants Oliver Sherwood Co. et al.
Lyon & Lyon, Frederick S. Lyon, Leonard S. Lyon, and R. E. Caughey, all of Los Angeles, Cal., for appellee Patterson-Ballagh Corporation.
John J. Wilson, Charles C. Montgomery, and Harris, Kiech, Foster & Harris, all of Los Angeles, Cal., for appellee Bettis.
Before WILBUR, STEPHENS, and HEALY, Circuit Judges.
Charles F. Sherwood is the patentee in three United States patents, Nos. 1,376,043, 1,416,988, and 1,510,804. All these patents involve the use of rubber on bearing or journal surfaces with water as a lubricant. Patents 1,376,043 and 1,416,988 were applied for February 24, 1920. Patent 1,376,043 was issued April 26, 1921, before patent 1,510,804 was applied for (June 23, 1921). Patent 1,416,988 was issued May 23, 1922, after patent 1,510,804 had been applied for; thus patents 1,376,043 and 1,416,988 were copending applications, and 1,416,988 and 1,510,804 were copending, but patent 1,376,043 is a prior patent with reference to patent 1,510,804, issued October 7, 1924.
The owners of patents 1,416,988 and 1,510,804, the Oliver Sherwood Company, and the licensee thereunder, B. F. Goodrich Company, brought this suit for infringement of these two patents against the Patterson-Ballagh Corporation which was manufacturing a rubber sleeve, or collar, to be placed upon the drill pipe line used in rotary drilling operations. These collars were manufactured under a license from William I. Bettis, who owned letters patent 1,573,031 applied for January 5, 1925, issued February 16, 1926, to Bettis and Perry.
Later, W. I. Bettis was joined as a defendant in pursuance of motion made and granted under equity rule 30. He filed an answer denying infringement, and a counterclaim setting up his ownership of the Bettis and Perry patent 1,573,031 and charging that this patent was infringed by the plaintiffs.
The defendants all denied infringement and attacked the validity of the two Sherwood patents sued upon.
The special master to whom the issues were referred found the three patents involved (Sherwood 1,416,988 and 1,510,804, and the Bettis and Perry patent 1,573,031) to be invalid. He also found that if the plaintiffs' two patents were valid they were not infringed. The master's report was excepted to by all the parties. An application for rehearing was made by the plaintiffs, and also by Bettis. The application was granted and the court modified its order, holding that the two Sherwood patents 1,416,988 and 1,510,804 were valid and not infringed, and adhered to the special master's finding that the Bettis and Perry patent was invalid.
The plaintiffs were content with the finding that Sherwood patent 1,416,988 was valid and not infringed and do not attack that finding, but by appropriate assignments attack the finding of noninfringement as to Sherwood patent 1,510,804.
Bettis filed a cross-appeal in which he attacks the finding and judgment of the trial court holding the Bettis and Perry patent invalid and not infringed and the finding of validity of plaintiffs' patents. The Patterson-Ballagh Corporation, no longer interested in the Bettis patent, secured a severance and filed a separate crossappeal in which it confines its attack upon the decree to that portion of the findings and decree which holds valid the Sherwood patents 1,416,988 and 1,510,804. This it could have done as appellee without a crossappeal. Herman Body Co. v. St. Louis Body, etc., Co., 8 Cir., 46 F.2d 879; Cf. Morley Const. Co. v. Maryland Cas. Co., 300 U.S. 185, 57 S.Ct. 325, 81 L.Ed. 593.
For convenience we will refer to the Oliver Sherwood Company and the B. F. Goodrich Company as plaintiffs, and to the Patterson-Ballagh Corporation and William I. Bettis as cross-appellants.
We will dispose of the only procedural question of any importance before taking up the questions of validity and infringement of patents.
The plaintiffs claim that Patterson-Ballagh Corporation cannot be heard upon its cross-appeal in its attack upon the validity of plaintiffs two patents, 1,416,988 and 1,510,804, for the reason that the trial court held that these patents were not infringed. Consequently, it is claimed that the decree of the court was in favor of Patterson-Ballagh Corporation and therefore no appeal lies by it from the decree. This position cannot be maintained, although in view of the fact that the plaintiffs by their appeal have presented an opportunity for the cross-appellants to attack the finding of validity in the plaintiffs' patents, the cross-appellants were not confined to that remedy which might have been destroyed by plaintiffs' dismissing their appeal. It is true that no accounting was ordered and no relief granted against the Patterson-Ballagh Corporation but, as a party to the action, it would be bound in any future litigation between the parties by the adjudication herein that these two patents were valid. The validity of these two patents was placed in issue by the Patterson-Ballagh Corporation, and was litigated and determined adversely to its contentions. So far as its present design of rubber collars is concerned it might well rest upon the finding of noninfringement, but is not compelled to do so. We therefore hold that the Patterson-Ballagh Corporation on its cross-appeal is entitled to attack the validity of these patents. Bettis, on his cross-appeal, also attacks the validity of these patents, as well as the finding that his own patent is invalid.
Before making any more elaborate statement with reference to the three patents involved in this litigation, it will assist to an understanding of the questions involved if we make a preliminary statement with reference to the prior art:
As early as December 6, 1859, a patent, No. 26,352, was issued to A. Hay for a car axle box for locomotive. He declared his invention to be The patentee then discloses the difficulty of keeping a bearing in alignment with a shaft (the axle) owing to the inequality of the track, etc., and states:
This patent, it will be observed, does not propose to bring the rubber in contact with the revolving axle or shaft, but provides for the interposition between the rubber and the axle of the ordinary metal bearing which is embedded in the rubber for the purpose of securing the desired alignment. This patent bears upon two phases of the two patents of plaintiffs in suit, that is, the use of flexible rubber in a bearing to secure alignment and to reduce wear.
On July 1, 1884, patent No. 301,412 was issued to F. W. Ulffers. This patent provided for supporting the shaft by bearings of parchment paper compressed in a number of half rings, or discs, each composed of a large number of layers of parchment paper. These half discs joined together to form a single disc were alternated in the construction of the bearing by discs of iron or steel having a larger inner circumference than the parchment discs, thus keeping the metal discs from contacting the shaft, the drawing for instance, showing 18 half rings (9 rings) of parchment and 16 half rings (8 rings) of iron. The whole was so arranged that the parchment paper rings were held in place and compressed by the iron rings so that in operation the journal rides upon the edges of the parchment paper discs, that is, upon the inner surface of the parchment rings. It is significant also that this patent proposes a lubrication of the journal by water flowing into the bearing between the parchment paper rings from the reservoir immediately over the bearing. The first claim of the Ulffers patent will sufficiently indicate the nature of the invention. It is as follows:
"A bearing or stuffing box having a bearing-surface consisting of compressed parchment-paper, with the edge-surface of the leaves against the shaft, substantially as set forth."
With reference to this patent it should be observed in passing that it discloses a method of supporting a shaft by a nonmetallic bearing of relatively soft material and that some of the claims of the plaintiffs' patents include any "elastic material" as well as rubber with water lubrication.
As early as August 28, 1888, hard or flint vulcanized rubber used in a step for spinning spindles was covered by patent 388,392 issued to J. Booth. The rubber support shown in this patent was cylindrical in form, the end of the spinning spindle being inclosed within the rubber cylinder with its end resting upon the rubber end of the cylinder enclosed in the spinning spindle. Nothing is said in this patent concerning the character of the lubricant to be used. In that regard it is said: "The step being made of hard or vulcanized rubber and so arranged as to be continually supplied with or...
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