Bingham Pump Co. v. Edwards
| Decision Date | 13 May 1941 |
| Docket Number | No. 9485.,9485. |
| Citation | 118 F.2d 338 |
| Parties | BINGHAM PUMP CO., Inc., v. EDWARDS. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Maguire, Shields & Morrison, Robert F. Maguire, and Donald K. Grant, all of Portland, Or., for appellant.
John F. McCarthy, of Kelso, Wash., for appellee.
Before GARRECHT, HANEY, and STEPHENS, Circuit Judges.
Appellee brought this suit against appellant for a decree adjudicating that his patent, No. 1,927,395 issued September 19, 1933, on his application filed November 13, 1931, was valid and infringed by appellant, and for an accounting. Appellant denied the validity of the patent and alleged a number of affirmative defenses.
The specification of the patent in issue which relates to rotary pumps, states that the "primary object of the present invention is the provision of liners for the pump chambers, with the liners in separable meeting sections, such liners being arranged to completely cover the inside of the pump chambers and protect the housing from wear of any kind incident to the use of the pump".
The pump housing may be described as two horizontal cylinders, one on the top of the other, so that the end resembles the figure 8, except that at the point where the cylinders touch the cylinders are cut away leaving an opening between the two cylinders so that a gear in the upper cylinder and a gear in the lower cylinder may mesh at the opening. On each side of the housing is a hole leading to the opening between the cylinders at a right angle thereto, thus providing an inlet and outlet for liquid. The liners, in general, are shaped like, and fit inside, the housing. They may be described as a cylinder with the ends thereof closed by a plate which will fit in the cylinders of the housing but with a portion cut away longitudinally to correspond with the cut away part of the housing, and a cut away portion fitting around the inlet and outlet. In the closed ends are holes through which the gear shafts are placed. Each of these cylinders is then cut in half, so that there are then four identical parts, each having an open and a closed end. When the 4 parts are placed in the pump housing with the open ends inward and abutting they make a shell which lines the inner part of the housing. The closed sides which the patent describes as a wall cover the sides of the gears, and the cylindrical portions, called flanges in the patent, cover the teeth of the gears, described in the patent as the periphery of the gear. The closed ends or walls of the four parts have a straight edge at the cut out part of the housing.
Claims 7 and 8 of the patent are in issue, and are as follows:
These claims contain a great deal of functional matter. Excluding such matter, we find that Claim 8 describes only two elements: 1. A side wall with a straight edge, a shaft hole; and 2. A lateral flange cut away to make one-fourth of an inlet or outlet hole. Claim 7 differs only in that it does not describe the side wall as having a shaft hole.
The cause was referred to a special master who found that the patent in issue was novel, not anticipated, and infringed by appellant. Appellant did not except to the findings of novelty and lack of anticipation, but did except to the conclusions of law. The court below approved the findings of the special master, and entered an interlocutory decree on January 20, 1936, adjudicating that Claims 7 and 8 were valid and referring the cause to the special master to report "the gains, profits and advantages which the appellant has received, or which has accrued to it, by reason of said infringement of said letters patent, and the damages which the plaintiff has suffered by reason of said infringement". The special master computed the damages, and the court below on October 9, 1939 entered a final decree, confirming the interlocutory decree, and entering judgment for appellee for $8,500. The judge who made the...
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...failure of the Secretary to timely serve objections does not limit this power. 5 Moore, Federal Practice p 53.12. Cf., Bingham Pump Co. v. Edwards, 118 F.2d 338 (9th Cir.), cert. denied, 314 U.S. 656, 62 S.Ct. 107, 86 L.Ed. 525 (1941); United States v. 1,674.34 Acres of Land, More or Less, ......
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