American Chain Co., Inc. v. Cox Brass Mfg. Co.

• Decision Date: 26 May 1922
• Docket Number: 652.
• Parties: AMERICAN CHAIN CO., Inc., v. COX BRASS MFG. CO.
• Court: U.S. District Court — Northern District of Ohio

292 F. 624

AMERICAN CHAIN CO., Inc., v. COX BRASS MFG. CO.

No. 652.

United States District Court, N.D. Ohio, Eastern Division.

May 26, 1922

Fay Oberlin & Fay, of Cleveland, Ohio, for plaintiff.

Fisher Moser & Moore, of Cleveland, Ohio (Percy H. Moore, of Washington, D.C., of counsel), and Alan N. Mann, of New York City, for defendant.

WESTENHAVER District Judge.

Plaintiff's bill charges infringement by defendant of United States letters patent No. 1,374,893, issued April 12, 1921, to William J. Pancoast and William J. Grotenhuis, and by them assigned to the plaintiff. Claims 6 to 11, inclusive, only are in issue. The defenses mainly relied on and urged in argument are: (1) Invalidity for want of invention. (2) Invalidity because the patent contains a needless multiplication of nebulous and indefinite claims calculated to mislead and deceive the public. (3) Invalidity because the alleged invention was sole and not joint. If the claims relied on are valid, defendant does not deny infringement although defendant's construction is likewise made in conformity to United States letters patent No. 1,371,605 issued March 15, 1921, to Theodore M. Cox, and by him assigned to the defendant.

The subject-matter of this litigation is the familiar automobile bumper or fender. The distinguishing and alleged novel element of plaintiff's construction is its enlarged central or middle portion. In the patent this portion is referred to as 'a vertically expanded impact face,' 'a vertically offset impact portion intermediate of its ends,' and 'a vertically offset portion intermediate its ends. ' The enlarged portion thus referred to is between brackets attached to the side frames of the car and supporting the bumper. Plaintiff's preferred form of construction is made by offsetting downwardly at this central portion the bumper bar and clamping thereto a similar plate offset upwardly. Fig. 2 of the patent best shows this preferred construction.

All the features and elements of this construction are admittedly old, with the single exception of this enlarged impact face. The specific prior patent art goes back as far as 1907. This prior art shows single and double bar bumpers made of diamond and tubular shaped bars and of channel bars, with both free and the curved ends attached by brackets to the car frame. It also shows single and double bar bumpers made of flat plates of resilient steel with curved and looped ends similarly attached to the car frame. The printed catalogues introduced in evidence disclose and illustrate many bumpers of these several types.

It is not necessary to review this prior art in detail. United States letters patent No. 908,025, issued to Allen L. MacGregor December 29, 1908, discloses a double bar bumper made of tubular bars and with curved free ends. Halliday's catalogue, plaintiff's Exhibit 11, shows numerous types of bumper made of diamond and channel bars with curved free ends. United States letters patent No. 1,191,306, issued to T. A. Hoover July 18, 1916, is the earliest disclosure of a bumper made of resilient steel with looped or reversely curved ends. United States letters patent No. 1,198,246, issued to George A. Lyon September 12, 1916, on application filed April 21, 1913, discloses a bumper made of flat bars of resilient steel, containing every feature and element of plaintiff's bumper except the enlarged central portion. It is, with this single exception, undoubtedly an anticipating device realizing all of the other advantages, except the protection of a wider surface, claimed for plaintiff's bumper. In addition thereto, attention is called to United States letters patent No. 1,247,142, issued to E. Parradee November 20, 1917, and United States letters patent No. 1,354,633, issued to Richard Tossell, on an application filed December 26, 1918. Tossell's patent is both a double and single bar bumper, made of flat resilient steel, with members projecting upwardly and downwardly in line with the supporting brackets, giving the wider area of protection sought to be obtained by the enlarged middle portion of plaintiff's bumper. This patent, however, is said not to be a part of the prior art construction, though both its application and patent date are prior to plaintiff's patent, because of testimony produced at the hearing tending to carry the Pancoast and Grotenhuis invention date back to 1917. For the purposes of this case, this priority may be conceded.

Thus it will appear that the validity of the patent sued on depends exclusively upon its enlarged central portion. This patent is for a combination; and while it must be admitted that all the features and elements of the combination except this one are old in the art, it is urged that this enlargement of the middle portion is novel not only as a conception but as to the embodiment thereof in a bumper, and is such an advance over the prior art as to arise to the dignity of invention. Before determining this contention, reference will be made to some of the prior art showing an enlarged or expanded central portion on fenders and bumpers.

Numerous patents are cited, of which a few only of those relating to automobile bumpers or fenders need to be examined. United States letters patent No. 863,124, issued to Dante J. Welton August 13, 1907, discloses a bumper, called in the application a fender, for motor vehicles, with an enlarged central portion tapering towards its ends. The drawings show this fender round in form, but the specifications say what would otherwise be perfectly obvious, that it may be made of any standard shape, and 'that the exact shape and arrangement of fender must necessarily be varied to suit the different sizes, styles and shapes of motor vehicles. ' The diameter of its enlarged central portion is apparently equal to the vertical cross-section of the enlarged middle portion of plaintiff's bumper. It affords the same protection as is performed by the enlarged central portion of the patent sued on. If it were made of flat resilient steel and had added thereto the reversely curved ends or loops of Hoover or of Lyon, it would be indistinguishable from plaintiff's construction, except as to the central opening in the enlarged central portion.

British patent 7172, issued March 21, 1907, to Richard Bonfield discloses a multiple bar bumper made of flat steel with the central portion of the upper bar offset downwardly in...