AJ Industries, Inc. v. Dayton Steel Foundry Company, 17614

• Decision Date: 06 May 1968
• Docket Number: No. 17614,17615.,17614
• Citation: 394 F.2d 357
• Parties: A. J. INDUSTRIES, INC., Plaintiff-Appellant, v. The DAYTON STEEL FOUNDRY COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

394 F.2d 357 (1968)

A. J. INDUSTRIES, INC., Plaintiff-Appellant, v. The DAYTON STEEL FOUNDRY COMPANY, Defendant-Appellee.

Nos. 17614, 17615.

United States Court of Appeals Sixth Circuit.

May 6, 1968.

James B. Kinzer, Jr., Chicago, Ill., and John W. Melville, Cincinnati, Ohio, for A. J. Industries, Inc., Yungblut, Melville, Strasser & Foster, Cincinnati, Ohio, and George H. Wallace, Chicago, Ill., on the brief.

Jack L. Renner, Akron, Ohio, for The Dayton Steel Foundry Co., Mack D. Cook, II, Hamilton & Cook, Akron, Ohio, J. Robert Donnelly, Iddings, Jeffrey & Donnelly, Dayton, Ohio, on the brief.

Before PHILLIPS, PECK and McCREE, Circuit Judges.

JOHN W. PECK, Circuit Judge.

A. J. Industries, Inc. (herein "plaintiff") brought suit against The Dayton Steel Foundry Company (herein "defendant") for infringement of Ward Patent No. 2,841,414, which plaintiff owned. Defendant denied infringement in its answer and counter-claimed that the patent in suit was invalid. Only two of the twelve claims to the patent, claims 7 and 8, were tried to the District Court which held the claims valid and not infringed. Both parties have appealed from that decision.

The Ward patent in suit, captioned "Anti-Brake Hop Structure for Wheeled Vehicles," pertains to a spring suspension system for a vehicle, generally a truck trailer, having tandem axles. More particularly, claims 7 and 8 pertain to a tandem suspension system having the adjacent ends of two elongated springs on each side of the vehicle connected to the frame through an equalizer, the function of which is to distribute loads back and forth between the springs. As stated in the patent specification, the primary improvements contemplated by the invention disclosed are "enhanced braking effectiveness, the elimination of the phenomenon known in the trucking industry as `brake hopping,' and the improvement of the riding characteristics of the trailer, as well as the tractor, during braking operations." The evidence shows that all three objectives are realized by the elimination of brake hopping.

The phenomenon known as brake hopping was described by Ward in the specification to the patent in suit as follows:

"Brake hop is experienced primarily with unloaded or lightly loaded trailers when a sudden or emergency braking operation is in progress, and the phenomena is characterized primarily by rapid and extremely violent up and down oscillation of either one or both of the axles of the tandem. In what is probably its most common form, this phenomena primarily involves or is exhibited in a readily apparent manner in vibration or oscillation of the front axle, and the vibration is often so great that in each oscillation the wheels of this axle are lifted from the road in an appreciable amount and then returned to road contact with great force or impact."

As the record shows, it is generally recognized that the extent or intensity of axle oscillation depends on many variables, such as the road surface, the braking intensity and the weight of the trailer.

With respect to the equalized semielliptic spring type of suspensions to which the Ward patent pertains, Ward in effect attributed what is known as axle wind-up as the cause of brake hop. His concept of the cause of brake hop may fairly be summarized as follows: when the wheels are locked to the tandem axles during braking, the tire-to-ground friction tends to rotate the axles in a forward rotational direction. The springs of the suspension, one of which is attached to and support each end of the axles, are caused to cant in such a manner that the rear end of the springs attached to the front axle move upwardly and the front end of the springs attached to the rear axle move downwardly. This spring movement is not impeded by the equalizer and the net effect is that the front axle tends to be lifted from the pavement. Thereafter because the weight of the rear portion of the trailer is shifted, or tends to shift, to the rear axle, and because of the reduction or total elimination of friction between the tires attached to the front axle and the pavement, the front wheels tend to return to their normal, load-bearing position in contact with the roadway, whereupon the cycle starts over again. It is the rapid repetition of this cycle that creates the brake hop.

In the prior art devices disclosed in the patent in suit, the tandem axles are pulled along with the trailer by torque rods attached to the axles through forwardly extending arms secured to each end of the axles. In these prior art structures, the rear end of each torque rod is attached to an arm at a point forwardly and slightly above the center-line, or axis, of the related axle, the front end of the torque rod being attached to the frame through brackets forwardly of the related axle. Ward's invention consisted of the placement of these torque rods "in a different and highly advantageous relationship between the frame and the respective axles." As stated in plaintiff's brief, "Ward contrapositioned the connection for the rear of the torque rods from a position above the axle to a position below the axle. This change was Ward's invention." It is claimed that by changing the position of the rear end of the torque rods as Ward did, the forward inertia force of the vehicle is harnessed as a counterrotative force on the axles, thus precluding brake hop. A drawing accompanying the Ward patent and depicting an embodiment of the claimed invention is set forth below:

July 1, 1958 J. C. WARD 2,841,414 ANTI-BRAKE-HOP STRUCTURES FOR WHEELED VEHICLES Filed March 2, 1954 3 Sheets-Sheet 3

In comparison to the prior art devices where the rear of the torque rods are connected to the axles through a forwardly extending arm at a point slightly above the axis of the related axle, the torque rods in the accused devices are attached to the axles through a forwardly extending arm at a point below the axis of the related axle, but not below the axle itself.

With reference to the issue of the validity of the patent in suit, defendant contends that the patented suspensions lack novelty under 35 U.S.C. § 102, and invention under 35 U.S.C. § 103.

Under section 102(a), novelty does not exist if the patented device has been anticipated by a prior device, whether patented or not; that is, novelty is lacking if all the elements of the patent, or their equivalents, are found in a single prior art structure where they do substantially the same work in the same way. Aluminum Co. of America v. Sperry Products Inc., 285 F.2d 911 (6th Cir. 1960), cert. denied, 368 U.S. 890, 82 S.Ct. 142, 7 L.Ed.2d 87 (1961); Monroe Auto Equip. Co. v. Heckethorn Mfg. & Supply Co., 332 F.2d 406 (6th Cir.), cert. denied, 379 U.S. 888, 85 S.Ct. 160, 13 L.Ed.2d 93 (1964); Marasco v. Compo Shoe Machinery Corp., 325 F.2d 695 (1st Cir. 1963), cert. denied, 377 U.S. 924, 84 S.Ct. 1223, 12 L.Ed.2d 216 (1964). In order to negate novelty, the prior device must have been reduced to use (National Latex Products Co. v. Sun Rubber Co., 274 F.2d 224 (6th Cir. 1959), cert. denied, 362 U.S. 989, 80 S.Ct. 1078, 4 L.Ed.2d 1022 (1960)), and this use must have been a public use. Monroe Auto Equip. Co. v. Heckethorn Mfg. & Supply Co., supra.

Defendant offered evidence tending to prove the existence and use of four separate prior art devices which allegedly anticipated the patent in suit. With respect to the suspension on the so-called Crawford Oil trailer (the Crawford Oil Company of Humansville, Missouri, owned this trailer at one time), one of the principal prior art structures relied upon by defendant, both parties agree that this suspension as depicted in certain photographs in evidence is "analogous and identical to" the accused suspensions. It is thus defendant's position that since the accused device is drawn upon a prior art structure, the claims in dispute...