Bullard Company v. General Electric Company

• Decision Date: 28 June 1965
• Docket Number: No. 9866.,9866.
• Citation: 348 F.2d 985
• Parties: The BULLARD COMPANY, Appellant, v. GENERAL ELECTRIC COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

348 F.2d 985 (1965)

The BULLARD COMPANY, Appellant, v. GENERAL ELECTRIC COMPANY, Appellee.

No. 9866.

United States Court of Appeals Fourth Circuit.

Argued May 5, 1965.

Decided June 28, 1965.

Rehearing Denied September 7, 1965.

Theodore S. Kenyon, New York City (Robert E. Taylor, Charlottesville, Va., George E. Faithfull, James H. Callahan, New York City and Paul M. Geist, Bridgeport, Conn., and Taylor, Camblos, Michie & Callaghan, Charlottesville, Va., on brief), for appellant.

Laurence B. Dodds, Little Neck, N. Y., and Melvin M. Goldenberg, Washington, D. C. (Leonard G. Muse, and Woods, Rogers, Muse & Walker, Roanoke, Va., on brief), for appellee.

Before BRYAN and BELL, Circuit Judges, and LEWIS, District Judge.

ALBERT V. BRYAN, Circuit Judge.

Its two patents¹ upon devices for control of an automatic machine tool were infringed, The Bullard Company complained to the District Court, by the General Electric Company.² Denying the accusation, the latter counterclaimed for a judgment declaring the patents invalid. Decision went for GE solely on non-infringement, without any declaration upon the patents. On Bullard's appeal we affirm.

The patents comprise combination claims only. The master to whom the cause had been referred sustained the patents, and on the finding that GE's mechanism embraced, as equivalents, all of the essential elements of the patents, he held GE to be an infringer. Without passing on the validity of the patents, the District Judge set aside the holding of infringement because, unlike the master, he concluded that GE's electronic means was not an equivalent of the patents' mechanical means of operation.

We do not consider the master's appraisal of the patents or resolve this issue of equivalents, for we think his finding that GE's machine contained all of the vital elements of Bullard's claims is not supported by the evidence and thus clearly erroneous. F.R.Civ.P. 52(a). Because of this failure of the proof we find infringement has not been established.

The Bullard patents successively covered a device which exoterics could describe in the following manner. Its function is to direct and control a machine tool (the movable member) employed in making a part or parts of any mechanical equipment automatically. Further, this direction and control are applicable to general purpose machine tools as contrasted with tools usable for producing only a single item or unit, though repeatedly. Because the device may direct the tool in variable courses it is said to embody an intermittent control. It may be set, in advance, to send the tool into the performance of predetermined missions and, upon completion of one, to enter upon another and so on in sequence without overlapping or resetting. The paths to be travelled by the tool are programmed in the control device by inserting dogs or stops in the slots of a function or selecting drum or like means, and thereafter the dogs or stops, as the drum rotates, engage and activate the appropriate components to set in motion the desired point to point action of the tool. A sample piece of work must first be laid out, and its pattern run off manually, on the machine to ascertain the proper positioning of the dogs for automatically carrying out the intended job.

While the device in each of the patents is automatic, in No. 183 the operation is principally mechanical, while in No. 792 it is largely electronic. The main difference is the use of the motive power in stopping the progressive movement of the tool — to complete one step and ready ("index") it to undertake the next. This is done in 183 by the use of a companion piece which contacts an aptly positioned dog on a stop or detector drum to terminate that particular movement of the tool, thereupon signalling the function drum to turn to and obey the next set command. In 792 the stopping is achieved through electric circuit impedances.

The novel element, in the master's view, is the machine's "feed-back" ability, that is its relay to the function drum that it has reached its prescribed end-point and to set it on the next cycle. On this he says:

"A detailed consideration of Patent \'183 leads to the conclusion that the inventive idea of the patent is a method using feed-back of data and comparison of fed-back data with control data for controlling the operation of a machine on an automatic, intermittent, or point-to-point, universally flexible basis, controlling the performance of the machine in the ways in which a human operator would or could control it."

Again:

"The most important aspect of this process in Patent \'792 is in the relationship between the movement of the cutter-head movable member and the variation in the variable impedance in one leg of the circuit; in Patent \'183, the most important aspect was found in the relationship between the cutter head (or movable member), and the movement of its companion element toward the stop on the function stop or detector? drum. In the former patent 792, this relationship is made operative by the bridge circuit, or, in other words, by an electronic concept; in the latter patent, this relationship is made operative by a mechanical concept.

"* * * In brief, the Special Master finds as a matter of fact that Patent \'792 shares with Patent \'183 the inventive idea of effective point-to-point feed back to the control of data provided by the activity of the machine, on which data the control operates to direct the further activities of the machine."

The accused GE device, known as GENPC, is described by the master in noting its differences from Bullard:

"At first observation, we find a very great difference between the patents in suit and the accused device in the method of giving commands to the machines. The General Electric device uses a punched tape, prepared usually away from the machine the operation of which it is to control, which punched tape is applied to the machine by a `tape-reader\' which translates the symbols on the tape into commands to be followed by the machine. Different feed rates, different axes of motion, and the various requisite command data are indicated to the machine by the punched tape travelling through the tape-reader.

* * * * * *

"Other differences of major nature may be elaborated almost to the length of the transcript of the evidence, but the inquiry here must be directed to the basic idea, or inventive idea, of the accused General Electric device. Inspection of the mode of operation of the General Electric device shows quickly that we find again the idea of data being fed back from the work piece to the machine control. The use of the fedback data in actually controlling the operation of the machine differs somewhat in the General Electric device from that of Patent \'792, in that the General Electric device uses the series of selsyns, and it certainly differs in form from that of Patent \'183." (Accent added.)

The master held with Bullard throughout, finding the feed-back principle of both its patents as new and as simulated by GE. His reason for finding infringement is thus stated:

"If we limit the discussion for the moment to a comparison of Patent \'792 and the accused General Electric device, it is seen immediately that both are operable because of an electronic circuit which controls the point-to-point progress of the work piece by utilization of data fed back to the control from the work piece. It is also seen immediately that the two circuits are not in form the same, nor are the shapes and names of the circuit components the same. * * *"

* * * * * *

"* * * But the function of the data feed-back arrangements in all three devices is the same, namely, to provide a system by which the movement of the work piece from point to point feeds information back to the control mechanism, which information is used to control the further activities of the machine, and the Special Master so finds. It might be added that, so far as the evidence shows, this is the only function of the data feed back arrangements." (Accent added.)

* * * * * *

"A careful analysis of the evidence offered to show non-infringement reveals it to be more to show or illustrate differences in the names or shapes of the various components and to attempt to show different modes of operation of the various components, but that same evidence shows that the function or purpose of these components within the General Electric device is the same as the purpose or function of the components of the electronic circuit shown in patent \'792, and that these functions are accomplished in substantially the same way in the two devices." (Accent added.)

The District Judge apparently distinguished GE from Bullard exclusively on the ground that GE's machine was an adaptation in its operation of electronics in the place of mechanics or partial electronics, representing a radical departure from the Bullard idea. On this premise he concluded that GE's device was not within the range of equivalents of Bullard, and so, GE had not infringed Bullard. GE, however, to sustain its argument of non-infringement, rests on the failure of Bullard to show an imitation by the NPC of the combination patented in 183 and 792.

It is unnecessary in this case, as we have already observed, to decide whether electronic is an equivalent of...