B. F. Avery & Sons v. J. I. Case Plow Works

• Decision Date: 17 July 1905
• Citation: 139 F. 878
• Parties: B. F. AVERY & SONS v. J. I. CASE PLOW WORKS.
• Court: U.S. District Court — Eastern District of Wisconsin

139 F. 878

B. F. AVERY & SONS v. J. I. CASE PLOW WORKS.

United States Circuit Court, E.D. Wisconsin.

July 17, 1905

Spooner & Rosecrants and Mason, Fenwick & Lawrence, for complainant.

Peirce & Fisher, for defendant.

This is an action in equity, predicated upon alleged infringement of letters patent No. 650,771 for an improvement in the 'double-moldboard' or 'middle-burster' plows.The bill is in the usual form.The answer denies that the patented structure discloses any patentable invention in view of the state of the art; avers that complainants' invention had been anticipated by United States letters patent No. 410,218, issued to Ira W. SylvesterSeptember 3 1889.Infringement is also specifically denied.

The original verified application of the patentee contained four claims, which are found at pages 89 and 90, defendant's record.The second claim was rejected on the Ward patent No 604,814.(Defendant's record, page 178.)Thereupon the second claim was canceled, and the attorneys for the patentee reconstructed the application, and substituted the present claims Nos. 2, 3, 4, 5, and 6 in place of the canceled claim.Original claims 3 and 4 became 7 and 8 in the amended application.Thereupon the amended claims from 2 to 6 inclusive, were again rejected, on Billups' patent, No. 123,858, and Sylvester's patent, No. 410,218.Reconsideration was asked by the patentee's attorney on the ground that the essential feature of each of such claims (2 to 6) was the pivoted runner and rudder, and that the Billups and Sylvester patents did not pivot their depth-runners so as to admit of a double adjustment.On the basis of this construction the patent in suit was issued.

The first claim is not in issue here.Omitting the elements 'standard, share, and moldboard,' which are common to all the claims, the elements of the several claims in controversy are as follows:

Second claim: 'A depth-runner pivoted at its forward end to the standard, a knife or rudder pivoted at its forward end to the depth-runner, and means for independently adjusting the rear ends of the depth-runner and rudder.'

Third claim: 'A depth-runner pivoted at its forward end to the standard, a knife or rudder pivoted at its forward end to the depth runner, and means for adjusting the height of the depth-runner and clamping the rear end of the rudder thereto.'

Fourth claim: 'A depth-runner comprising two sections pivoted at their forward ends upon opposite sides of the standard, means for adjusting the height of their rear ends and a knife or rudder pivoted at its forward end between the sections of the depth-runner.'

Fifth claim: 'A depth-runner comprising two sections pivoted at their forward ends upon opposite sides of the standard, means for adjusting the height of their rear ends, a knife or rudder pivoted at its forward end between the sections of the depth-runner, and means for adjusting the height of its rear end independently of the adjustment of the depth-runner.'

Sixth claim: 'A depth-runner comprising two sections pivoted at their forward ends on opposite sides of the standard, a knife or rudder pivoted at its forward end between the sections of the depth-runner, and means for adjusting the height of the rear ends of the depth-runner and clamping the knife or rudder between its sections.'

Seventh claim: 'A depth-runner, comprising two sections of similar shape, applied side by side and pivoted at their forward ends to each side of the plow-standard, the said sections having vertical slots at their rear ends, brace-rods rigidly secured to the moldboard and extending toward the runner, a bolt passing through eyes in said rods and through the slots in the runner, and a knife or rudder pivoted between the said depth-runner sections, whereby the said runner may be clamped in different adjusted positions between the runner sections.'

Eighth claim: 'A double-moldboard plow, comprising a standard, a double frog, a double share secured thereto, and a double-moldboard secured to the same, a depth-runner arranged beneath the moldboard and formed of two sections having their forward ends curved forwardly and pivotally attached on each side of the plow-standard, the said runner-sections being provided with vertical elongated slots at their rear ends, laterally-extending flanges formed upon the lower edges of the said sections to provide a broad-bearing surface, a knife-plate or rudder pivoted between the sections of the runner, the said rudder being curved at its forward ends of the runner-sections, rigid brace-rods extending from the moldboard to each side of the runner, a clamping-bolt passing through eyes upon the said brace-rods and through the elongated slots in the runner-sections so as to clamp the runner in different adjusted positions, the knife or rudder being thereby clamped between the said sections in different adjusted positions.'

Each of said claims contained at the end the formula, 'substantially as described.'

The defendant offered in evidence as anticipatory devices the following patents: Burke (1858), 22,013; Billups (1872), 123,858; Brantly (1881), 248,569; Lawrie (1882), 261,001; Laughlin (1884), 297,815; Roberson (1885), 326,591; Moore (1887), 366,597; Landauer (1888), 388,982; Sylvester (1889), 410,218; Holsclaw (1891), 459,204; Montgomery (1891), 459,410; McMillan (1896), 555,327; Dean (1896), 563,752; Ward (1898), 604,814; Ankarstolpe (1898), 607,207.Also the structure shown on page 22, Avery Catalogue1899-1900; also Avery's Advance double moldboard plow, Avery Catalogue1899-1900, page 23; also Avery's 'Lone Star' plow, page 99, Avery Catalogue1899-1900.

QUARLESDistrict Judge.

The first proposition to be considered is the validity of the broad claim 2 to 6 (both inclusive).It requires but a casual inspection of the plows introduced in evidence to determine the defendant's structure infringes each of said claims, if such claims are valid.This was freely admitted at the hearing by defendant's counsel.To pass upon the validity of these claims intelligently, we must consider the prior state of the art.What is claimed here is a combination.Each of the elements is old.The standard, share, and moldboard are as old as the plow structure.The depth-runner or shoe was well known in the art, operating as a fulcrum in handling the plow and controlling the angle at which the point entered the ground.It appears in numerous early plows under various names.The knife or rudder, likened by reason of its function to the centerboard of a boat, was long before complainant's patent employed on land side as well as double-molded plows.It has appeared in many shapes and under various names, attached and adjusted by various contrivances.

Long before the complainant's patent the desirability of raising or lowering the rear end of the depth-runner and adjusting the rear end of the knife so as to take up wear and to keep the plow steady while in motion were fully appreciated, and various means were resorted to for that purpose.The bolt and slot device had also been used as a means of adjusting both runner and knife.As early as 1858 Burke devised a 'middle-burster' plow having a rudder, which he calls 'a knife-shaped guide pivoted to the bedplate, its rear end adjusted by means of a set-screw located on the rear of the beam. ' In 1872 Billups patented an improvement in a double-moldboard plow, wherein a prominent feature was a rudder called by him a 'guide-coulter,' which was pivoted in a cavity of the shoe or runner, and was vertically adjustable by means of a series of holes and a bolt or pin.In 1888 Landauer patented 'an adjustable heel for plows,' which was pivoted at its forward end to the land side, contained a vertical slot at the rear end, operated with a heel bolt.In 1884 Laughlin patented a plow structure having a runner and rubber each independently adjusted by a slot and bolt device, wherein the parts performed the same functions as in the complainant's patent.Therefore, if there be patentable novelty in the complainant's structure, it must be because of a new arrangement of well-known elements.

It is unnecessary to take each of these claims separately through the field of the prior art.The sixth claim embodies all the features found in claims 2, 3, 4, and 5, except that it is silent as to an independent adjustment called for by claims 2 and 5.If, therefore, this claim, combined with the feature of independent adjustment, has been anticipated by any of the construction embraced in the references, such fact will be conclusive as to each of the broad claims.

Now take the Lone Star plow.(Defendant's Record, 193.)It clearly presents the following elements: Standard; share; moldboard; a depth-runner comprising two sections, pivoted at their forward ends upon opposite sides of the standard; a knife or rudder pivoted at its forward end between the sections of the depth runner; independent means for adjusting the height of the rear ends of the depth-runner and rudder and for clamping the knife or rudder between said sections.The slot and bolt device is employed in each adjustment.This amounts to a complete anticipation.The sixth claim may also be read onto the Sylvester plow in the same way with like results.The Sylvester structure, which was in actual use by the inventor, and which is in evidence, differs in detail from his patented structure, in that the 'adjustable braces,' which are not specifically developed in the patent, appear and are operated by a slot and bolt device and the runner sections are pivoted at their forward ends to the standard.If this Lone Star plow or the Sylvester plow had appeared subsequent to the date of complainant's patent, each would be a clear infringement; and the rule is...