Buchanan v. Wyeth Hardware & Manufacturing Co.
| Decision Date | 03 April 1931 |
| Docket Number | No. 8935.,8935. |
| Citation | 47 F.2d 704 |
| Parties | BUCHANAN et al. v. WYETH HARDWARE & MANUFACTURING CO. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Enos E. Hook and H. W. Hart, both of Wichita, Kan. (Glenn Porter, of Wichita, Kan., on the brief), for appellants.
Otis A. Earl, of Kalamazoo, Mich. (Chappell & Earl, of Kalamazoo, Mich., and Groves & Watkins, of St. Joseph, Mo., on the brief), for appellee.
Before KENYON and GARDNER, Circuit Judges, and MUNGER, District Judge.
This suit, in which appellants were plaintiffs, is for an alleged infringement of patent No. 1,670,235, granted to Isaac W. P. Buchanan May 15, 1928, for a hand-operated liquid variable spray device. The G-V Sprayer Company is Buchanan's licensee. Appellee (defendant) is a hardware company at St. Joseph, Mo. The defenses are the usual ones of invalidity and noninfringement. The trial court held that the Buchanan patent was invalid for want of invention; that it was clearly anticipated by the D. B. Smith patent of August 15, 1911, No. 1,000,447; that Buchanan made only one improvement on the Smith sprayer, and that was the addition of a locknut to secure the sprayer nozzle to any particular adjustment; and that such improvement did not constitute invention; and it is pointed out that the Patent Office had so ruled in connection with this very patent.
The Buchanan patent came into a crowded field. Defendant in its answer cites twenty-two domestic patents and five foreign patents, covering, it claimed, the same thing patented in the Buchanan patent, and defendant alleged that Buchanan was not the first inventor or discoverer of any material or substantial part of the things patented in said letters patent, No. 1,670,235; that the Buchanan patent was merely an "aggregation of old and well-known mechanical expedients arranged for use in an obvious and customary manner and devoid of invention."
The Buchanan patent relates to a spraying device whereby liquid under pressure is discharged in a solid stream or in varying sprays from a nozzle, the nature of the spray being varied by the adjusted position of the nozzle tip. There is a liquid tube leading from the container centrally arranged with relation to the eduction tube so as to provide an annular air passage open around the liquid tube. The air pressure is supplied by an air pump communicating with the container, which also serves as a handle for directing the discharge toward the object to be treated. The nozzle is threaded upon the eduction tube so that it can completely engage the end of the liquid tube, thus cutting off the escape of air from the air tube and making it possible to discharge a solid stream. It is turned in varying relation with the liquid tube to change the character of the spray. When the kind of spray desired has been determined by turning the nozzle tip, it can be stabilized by the locknut so that the position of the tip is indefinitely maintained. To give an idea of the structure, we set out the drawings forming part of the specifications of the patent.
Figure 1 shows the induction tube and the liquid tube which is open at both ends and that the part of it within the eduction tube is centrally arranged so as to provide an annular air passage. The pump and handle are not shown, but they are the usual bicycle or auto pump device.
Figure 2 is a section on line 2-2 of figure 1.
Figure 3 is an enlarged sectional view through the nozzle part of the device.
Figure 4 is an elevation with parts in section showing modification of nozzle part, and it may be noted there are indentations in the eduction tube to hold the liquid tube in fixed space relation.
Figure 5 is an elevation with parts in section of another modification.
Plaintiff diagrams the two claims of the patent at issue as follows:
The claims as thus diagramed show eight definite elements which appellants insist cooperate and bring about a structure successfully used in a commercial way for spraying.
Appellants claim the novelty in the patent is really composed of the combination of four elements, as follows:
and that each of the elements is essential to all the others.
No claim is made that any of the elements are new, but it is asserted that Buchanan had the right to draw from the whole field in making his combination, and that in his patent he produced by an ingenious combination of old elements a new and improved result different and more efficient than any sprayer on the market at the time his patent made its advent, that no other sprayer introduced as part of the prior art had a fixed liquid tube, a stabilizing device, and the other elements in his combination, and that after the issuance of the patent the large manufacturers of sprayers copied and appropriated the main elements thereof.
Appellants are entitled to the benefit of the presumptions available by virtue of the issuance of patents, viz. validity, utility, and invention. Acme Foundry & Machine Co. v. Oil Well Improvements Co. (C. C. A.) 2 F.(2d) 530; Zip Mfg. Co. v. Pusch (C. C. A.) 2 F.(2d) 828; Detroit Motor Appliance Co. v. Burke et al. (D. C.) 4 F.(2d) 118; Tropic-Aire, Inc. v. Sears, Roebuck & Co. (C. C. A.) 44 F.(2d) 580; Lehnbeuter v. Holthaus, 105 U. S. 94, 26 L. Ed. 939; Diamond Rubber Co. v. Consol. Tire Co., 220 U. S. 428, 31 S. Ct. 444, 55 L. Ed. 527. They insist that the commercial success and general use of the patented article are evidence that the device involves invention. Commercial success is to be considered of course on the question of invention where the same is in doubt, but courts, in view of the many elements entering into commercial success, view with some caution such evidence as establishing patentable novelty. In McClain v. Ortmayer, 141 U. S. 419, 12 S. Ct. 76, 79, 35 L. Ed. 800, the Supreme Court said, as to the claim that a patented article having gone into general use was evidence of utility: "It is not conclusive even of that, much less of its patentable novelty."
The burden of proof rests upon defendant to overcome the presumption of validity arising from issuance of the patent. Zip Mfg. Co. v. Pusch (C. C. A.) 2 F.(2d) 828; Fairbanks, Morse & Co. v. Stickney (C. C. A.) 123 F. 79.
That a combination of old elements may be patentable is settled by the authorities. The rule is stated by this court in National Hollow Brake-Beam Co. et al. v. Interchangeable Brake-Beam Co., 106 F. 693, 706, 707, as follows: "A new combination of old elements, whereby a new and useful result is produced, or an old result is attained in a more facile, economical, and efficient way, may be protected by patent as securely as a new machine or composition of matter." The tests to be applied are set forth by this court in Detroit Motor Appliance Co. v. Burke et al., 4 F.(2d) 118, 121, as follows:
That the elements of the patents are old is of course not conclusive against patentable novelty, nor does it preclude possibility of invention. Detroit Motor Appliance Co. v. Burke et al. (D. C.) 4 F. (2d) 118.
That the new combination accomplishes a better result does not alone evidence invention. "The union of the selected elements may be an...
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