Bailey v. Sears, Roebuck & Co.

• Decision Date: 04 February 1941
• Docket Number: No. 9468.,9468.
• Citation: Bailey v. Sears, Roebuck & Co., 115 F.2d 904 (9th Cir. 1941)
• Parties: BAILEY v. SEARS, ROEBUCK & CO.
• Court: U.S. Court of Appeals — Ninth Circuit

115 F.2d 904 (1940)

BAILEY v. SEARS, ROEBUCK & CO.

No. 9468.

Circuit Court of Appeals, Ninth Circuit.

November 28, 1940.

Rehearing Denied February 4, 1941.

W. E. Ramsey and MacCormac Snow, both of Portland, Or., for appellant.

Stephen H. Philbin, Clyde A. Norton, and M. Theodore Simmons, all of New York City, and Dey, Hampson & Nelson, of Portland, Or., for appellee.

Before WILBUR, HANEY, and HEALY, Circuit Judges.

WILBUR, Circuit Judge.

This is a suit by the patentee, Lester W. Bailey, for alleged infringement of his patent No. 1,907,473 for an indicating device designed to show "the exact angular position of the rotor blades" of a condenser, such as is used in a radio receiving set. The device is useful in tuning in stations whose dial readings are known. The device described in the patent consists of a dial with two hands, one moving ten times as rapidly as the other, although the patent is not confined to this ratio. The indicator dial corresponds to the face of a watch and the two hands to the hour hand and the minute hand of a watch. Both hands are operated by a single knob turned by hand. The hands are connected with each other by gears so arranged that as the knob is turned both hands are moved in the predetermined ratio. In the device shown in the patent the shorter hand is rigidly connected to the axis upon which the rotor blades of the condenser are mounted. The other hand is attached to a concentric sleeve on the same axis which is operated by a set of meshed gears or other means deriving power from the axis which is turned by the knob so arranged as to multiply the movement of the sleeve over that of the axis by the predetermined ratio.

It thus appears that the proposed device is similar to a watch or clock as to the form of the dial or clock face and in the relative movement of the two hands accomplished by gears of different size which in the watch or clock are so arranged as to decrease the motion from that of the minute hand attached to the axis to that of the hour hand attached to a concentric sleeve on the axis, that is, to one-twelfth, whereas the gears¹ in the patent are used to increase the ratio instead of to decrease it.

The case was tried before a master who held that the patent was invalid and even if valid the devices sold by the defendant did not infringe. The trial court sustained the conclusion of the master that the patent was invalid for lack of invention.

The master reported that "the patent does not disclose invention but is a natural and obvious forward step involving merely mechanical adaptation and improvement and is invalid because not disclosing invention."

The trial court said "a clock face dial suggests immediately the use of two pointers and the corresponding mechanism of the clock. * * * The mechanism of the clock is designed to indicate with exactness the position of the interior mechanism for the sole purpose of indicating the time. The mechanism of this radio dial is designed to indicate with exactness the position of the rotors of the condenser for the sole purpose of indicating where a particular station can be found." Thus the court affirms the view of the master that there was no invention.

A number of patents were pleaded as anticipatory but the claim of anticipation was withdrawn and the patents pleaded and others were introduced in evidence to show the state of the art in support of the appellee's claim that no invention was involved in the appellant's device, but that such device was merely a mechanical adaptation, or improvement. The patents presented in evidence show that the appellant was not the first to use a clock faced device with two hands moving relatively at a fixed ratio to show the position of the rotors. One of these devices was that disclosed in the Rysman patent. (French patent No. 571,362, issued January 31, 1924.) The patent application of the appellant was first rejected by the Patent Office on this reference as an anticipation of the applicant's device. When the claims of the original application were disallowed they were withdrawn and the applicant filed the amended claims 1 and 2 which were allowed and are now contained in the patent in each of which the connection between the axis and its hand, to the sleeve and its hand, as referred to as a "motion multiplying means". In the argument accompanying the modified claims the distinction between the Rysman patent and the appellant's device is pointed out. It is stated that the Rysman patent is for a step down of motion from the motion of the axis of the condenser to the motion of the sleeve thereon attached to the slower pointer. It was argued that "this gear train of the Rysman patent is not a step up or motion multiplying train, but a step down train, so that hand `1' moves more slowly than hand `k'. * * * The claim number one of the patent in suit also defines the gears as a motion multiplying train, whereas in the reference Rysman it is the reverse."

The appellant's brief counts on this distinction between a step down system of gearing operating the two hands (Rysman) and a step up gearing (appellant's patent) where the gearing is so arranged that the pointer attached to the sleeve concentric with the axis moves faster than the axis with its pointer.

It is difficult to appreciate the claimed distinction between step up and step down gears from the standpoint of invention because, as in the case of a flight of stairs, it depends upon whether one is at the top or the bottom whether it is a step down or a step up stairway. So with a set of gears. The question of whether or not there is a step up or step down of motion depends upon the place where the power is applied. In the patented device if the power is applied to the sleeve upon the axis of the condenser, it will be necessary to move the sleeve through an arc of ten degrees in order to move the pointer attached to the axis through one degree so that the gears through which the power is applied become a motion reducing gear system, whereas, in the same device, if we apply the power to the axis pointer we cause the other pointer which is on the sleeve to move ten times as fast as the one on the axis and thus the same gears become a motion multiplying device. If Rysman had desired to have the pointer on the sleeve move faster than that on the axis he could have accomplished the result, using the same gear train, by reversing the position of the gears.

The appellant contends that there is no evidence whatever in the record tending to show that motion multiplying gear trains...