Chicago Steel Foundry Co. v. Burnside Steel Foundry Co.

• Citation: 132 F.2d 812
• Decision Date: 10 February 1943
• Docket Number: No. 8017.,8017.
• Parties: CHICAGO STEEL FOUNDRY CO. v. BURNSIDE STEEL FOUNDRY CO.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

132 F.2d 812 (1943)

CHICAGO STEEL FOUNDRY CO. v. BURNSIDE STEEL FOUNDRY CO.

No. 8017.

Circuit Court of Appeals, Seventh Circuit.

January 20, 1943.

Rehearing Denied February 10, 1943.

Geo. L. Wilkinson and Ralph Munden, both of Chicago, Ill., for appellant.

F. Allan Minne, of Chicago, Ill., for appellee.

Before EVANS and KERNER, Circuit Judges, and LINDLEY, District Judge.

EVANS, Circuit Judge.

Working in the molding and foundry art, Herman J. Georgen produced a product for which he obtained a patent, No. 1,926,092, bearing date, September 12, 1933. The product, which is covered by said patent, he called "Apparatus For Forming Feed Screws and Conveyers."

It was promptly accepted by the trade, so he claims, and, because of lessened cost and desirable attributes, became popular with the industry.

Georgen's apparatus is used in casting screws of length and size such as are used in stokers, etc. It is in the making of screws which act as conveyers and are long and large, that manufacturers use this invention. In due course, the patent was transferred to the plaintiff who brought this suit.

Denying infringement, defendant also challenges the validity of the patent for want of patentable novelty.

Georgen has stated the problem which he had to meet and his solution in the specifications and drawings which he submitted to the Patent Office. We quote therefrom at length as these specifications state plaintiff's case rather fully and presumably as favorably as can be asserted in favor of the invention:

"My invention relates to an apparatus for casting feed screws and conveyers.

"Heretofore, where such articles were of any considerable size or length, it was found impracticable to cast such articles in a single piece because of the fact they could not be formed straight, nor smooth enough to overcome excessive machining and finishing costs. To some extent the problem of forming large, heavy duty feed screws and conveyers has been met by casting short length sections and then welding or bolting adjoining sections together to form a continuous length as desired. Objections to so forming these articles exists because of the great cost and because of the absence of a clean smooth finish occasioned by projecting bolt or other securing parts. Welding is costly and forms objectionable seams where the sections are joined.

"With this survey of the art in mind the primary object of this invention is to form, at a relatively low cost, one piece, cast feed screws or conveyers that will be devoid of projecting parts such as bolts, and which will be smooth and absolutely straight, whereby to eliminate straightening and finishing operations.

"Another object is to provide an improved apparatus for forming sectional molds to be used for casting such articles in continuous, one piece form.

"Other objects will become apparent to those skilled in this art as the disclosure is more fully made.

"Briefly, these desirable objects may be achieved in the present disclosed embodiment of the invention by providing a molding box with which will be associated an improved screw pattern of a predetermined sectional length with its flights split at the pattern ends along pitch lines although the split may be along any part of a pitch line. Next is provided a centering plate for properly holding and locating the pattern in position in the molding box. With this accomplished, molding sand is thereupon rammed into the box to form the sand mold. Thereafter a guide plate is substituted for the centering plate and by means later to be described the pattern is removed in a manner which will cause no injury to the mold. This operation will be repeated until the required number of sand molds have been so made for a predetermined length of feed screw to be formed. These molds are then arranged appropriately on a support, end to end, with the molds closely abutting to form a continuous mold with the molded impressions therein all communicating or registering. The molten metal is then poured into the mold at one end and allowed to work through completely to fill the entire length of sectional mold. When the metal has hardened the sand mold will be broken away leaving the finished article ready for removal of the sprue and adhering sand. * * Thus it will be seen that the entire pattern is formed as an integral member."

Two claims (2 and 3) are involved, and they read:

"2. The combination with a box for forming mold sections for a feed screw, of a screw pattern section arranged in the box and having flights fully to occupy the box from end to end thereof and said pattern section at its ends being cut on pitch lines, and means for removing the pattern section endwise of its length from a mold formed in the box whereby a number of such formed molds may be arranged end to end in registry for pouring a continuous feed screw with the adjacent sections thereof fusing along pitch lines to form a one piece integral feed screw.

"3. The combination with a box for forming mold sections for a feed screw, of a screw pattern having one or more flights arranged therein, said pattern at its ends being abruptly cut along pitch lines, and means for guiding and enabling removal of the pattern endwise of its length from a mold formed in the box, whereby a number of such formed molds may be arranged end to end in registry to pour a continuous feed screw with the adjacent sections thereof fused along pitch lines to form a one piece integral feed screw."

It is thus at once seen that we have a product patent covering a combination which is rather simple in construction and for which it is said, it worked satisfactorily, brought forth a less expensive screw and of the larger type, and in some respects a better screw than one commonly produced at the time.

We hardly feel justified in discussing at length the defense of infringement. We are persuaded that it cannot be sustained if we can find patentable novelty in the combination and give the patent a standing in the art to which its counsel argues it is entitled.

Counsel are in wide disagreement as to the construction of the claims in suit. This accounts for the wide divergence of their reasoning and conclusions. They start from different premises. Defendant stresses its fact assumption that neither claim of the patent defines a structure which was adapted to form molds for casting conveyers of variable pitch.¹ Its brief is bottomed on the statement that "with the apparatus defined in the claim it is not possible to make molds for the casting of any screw or conveyer except one having a uniform pitch through its length." It further says, "Before the court below no briefs were submitted and apparently this feature was completely overlooked by the trial judge."

Plaintiff, on the other hand, bases its argument upon the fact assumption that through the Georgen apparatus the manufacturer was enabled not only to produce extremely long screws of uniform pitch and diameter, but he was also enabled "to easily and cheaply produce screws of any length, of variable pitch and diameter."

To illustrate plaintiff's viewpoint it argues, "that a screw of great length of variable pitch and diameter is easily produced with the patented apparatus and if an order calls for a screw with five turns having a 2" pitch and 3" diameter, and nine turns of 2½" pitch and 3" diameter, and four turns of 2½" pitch and 3½" diameter, it is only necessary to make up sectional molds for each section of the screw, place the molds together with the screw flight portions of adjacent molds matching and pour a continuous screw." "When the sand is broken away from the casting the screw will be integral and its flights will be of varying pitch and diameter."

We must therefore first determine the construction of the claim. In reaching our conclusion we are aided but not concluded by the language of the specifications wherein Georgen said:

"It must be quite apparent that this invention can be utilized in forming right or left hand screws, and, screws having in a unitary full length, variable pitches and variable diameters."

Some meaning must be given to the term "pitch line" as used in the claims. Defendant's expert rejected the term entirely and said, "There is no such thing as a pitch line in this particular case."

On the other hand, plaintiff contends, and we accept its contention, that Georgen meant to define a pitch line to be a line at right angles with the axis of the screw passing through the screw flight.

In short, we adopt plaintiff's construction of these claims, because of the specifications and also because of the last two lines of each claim. We have always held that a patentee may be his own lexicographer and we add, his own grammarian. All he need do is to convey his thoughts, in his own language, but somehow make his invention clear, and do so in such a way that his counsel cannot give a different meaning to his words, before the Patent Office than he does before the courts. He should not be allowed to stretch his words so that they are inclusive when infringement is being considered and restricted and narrowed when validity is challenged by disclosures of the prior art.

We find nothing in the record to embarrass plaintiff in its construction of its claims. The language used is not at variance with its consistently stated construction of these claims.

There was no need for Georgen to mention the size of the screws or the fact that the screws had variable pitches and variable diameter. The patent was not on the screws or conveyers. It was on the apparatus wherein the screws were made. The apparatus permitted conveyers of great length — with variable pitches, and it was neither necessary nor wise to describe the various products which could be made therein.

Validity of claims 2 and 3 of the patent.

The prior art is not barren. In fact, it is tolerably rich in disclosures. Defendant cites in the following order: More and his old patent,...