Arnold-Creager Co. v. Barkwill Brick Co.

• Decision Date: 06 November 1917
• Docket Number: 2953.
• Parties: ARNOLD-CREAGER CO. v. BARKWILL BRICK CO. et al.
• Court: U.S. Court of Appeals — Sixth Circuit

246 F. 441

ARNOLD-CREAGER CO. v. BARKWILL BRICK CO. et al.

No. 2953.

United States Court of Appeals, Sixth Circuit.

November 6, 1917

Edw. R Alexander and M. B. & H. H. Johnson, all of Cleveland, Ohio for appellant.

H. E Smith, J. B. Hull, and Hull, Smith, Brock & West, all of Cleveland, Ohio, for appellees.

Before KNAPPEN and DENISON, Circuit Judges, and McCALL, District judge.

KNAPPEN Circuit Judge.

Suit for infringement of the Arnold patent, No. 787, 019, April 11, 1905. The invention relates to the type of 'horizontal soft mud' brick machines, consisting generally of a pug mill by which the clay is-- by means of knives and propellers carried by a 'horizontal pug shaft' extending longitudinally through the mill-- cut mixed, and advanced into a charging or pressing chamber at the front end of the mill, where by means of a vertically reciprocating inside press it is forced into molds, which are then mechanically delivered from the machine. The claims involved are No. 2, which relates solely to mechanism for operating the press platen, and No. 8, which is confined to a provision for admitting air between the press platen and the clay. The present Mr. Justice Clarke, who presided below, held claim 2 not infringed, and claim 8 void for anticipation, and dismissed the bill. The appeal is from the decree of dismissal.

Turning to claim 2, which we print in the margin: ^[1] When Arnold applied for his patent (September 23, 1904) the situation, so far as here important, was this: In 1900 Horton had obtained a patent on a press 'located wholly inside of the chamber of the pug mill.' He operated his press by means of a crank mounted on the pug shaft on the front end of the mill, through a vertically disposed pitman attached at its lower end to the crank and at its upper end, by a ball and socket joint, to a walking beam extending longitudinally above the mill, and to which the press platen stems were adjustably secured. Horton was marketing and manufacturing machines under his patent. manufacturing a machine called the '20th Century,' which differed from Horton's, so far as important here, in that it used in place of a walking beam a rocker arm shaft which carried the press platen stems. In 1902 Arnold contracted with Paradine for the right to manufacture the latter's 20th Century machine on a specified royalty. An interference between Paradine and Horton was decided in 1903 in the latter's favor, but the plaintiff company continued for many years later to pay royalty to Paradine on all machines made by the company, although marked with and marketed under its own name after the Arnold patent issued.

Early in 1904 Horton sued Arnold's company for infringement; the suit was settled the following January by consent to decree sustaining the Horton patent, but without liability for past or future use of the alleged infringing machines. One of the defenses here made to inventor, at least a joint inventor with Arnold. We agree with Judge Clarke that upon the testimony there is grave doubt whether Arnold was the sole inventor of the subject-matter of that claim; but this question was not decided by Judge Clarke, whose opportunities in that regard were better than ours. We find it unnecessary to decide it, and for the purposes of this opinion we shall treat the invention as Arnold's.

Arnold's advance over Horton and Paradine was merely the substitution (for the walking beam of the one and the rocker shaft of the other) of the 'plunger' running between ways on the outside of the chamber, interposed between and directly connected with the press platen stem and the upper end of the pitman--the 'plunger,' when the machine was assembled, being practically a part of the stem. The connections of both Horton and Paradine between the crank and press mechanism were direct in a proper sense, and Arnold in his testimony seems to so treat them. The latter merely showed a more direct method than that of his predecessors; and, given the interposed sliding 'plunger,' the outside guides followed naturally enough, in view of the then existing art. But Arnold's connection being more simple and direct, and effecting a positive movement of the press platen, resulting in greater speed and smoothness of operation-- with less wear and tear and wobbling, less breakage and greater output (evidenced by public favor and by the alleged infringement)-- had decided utility, and we think disclosed invention. From a mechanical standpoint, however, the advance in the art was slight.

The differences between the invention disclosed by claim 2 and the alleged infringing machine manufactured by the defendant Wellington Company for, and used by, defendant Barkwill Company, are these:

The machine disclosed by the specification is of the front delivery type, that is to say, the bricks are delivered from the front end of the pressing chamber, and thus of the mill by a movement longitudinally of the mill; the plunger, sliding between ways on the outside of the front end of the charging chamber, is connected on its rearward, or inward, side by an inwardly projecting stud shaft to a yoke to which are attached rods supporting the press platen, and on the front or outward side by an outwardly projecting stud shaft to the pitman (near, but not at, its upper end), whose lower end is connected to a crank journaled directly upon the pug shaft. Defendant's machine is of the side delivery type; that is to say, the bricks are delivered from the side of the pressing chamber by a movement at right angles to the side of the mill. The plunger slides between ways located outwardly on the delivery side of the pressing chamber, and is connected on its rearward or inner side by a pin to the yoke carrying the rod supporting the press platen, and on the front or outer side by a pivot pin to the upper end of the pitman, whose lower end is connected with a double crank, carried not by the pug shaft (as it could not be), but by a countershaft (operated by gearing at the rear end of the pug shaft) lying parallel with the pug shaft and entirely outside of the pugging chamber. Defendant's pivot pins,...