Davis Sewing Machine Co. v. New Departure Mfg. Co.

• Decision Date: 16 October 1914
• Docket Number: 2,428.
• Citation: 217 F. 775
• Parties: DAVIS SEWING MACH. CO. v. NEW DEPARTURE MFG. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

217 F. 775

DAVIS SEWING MACH. CO. v. NEW DEPARTURE MFG. CO.

No. 2,428.

United States Court of Appeals, Sixth Circuit.

October 16, 1914

On Petition for Rehearing, December 8, 1914. [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Edward Rector, Frank Parker Davis, and Russell Wiles, all of Chicago, Ill., for appellant.

G. P Moore, of Bristol, Conn., and Melville Church, of Washington, D.C., for appellee.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges

DENISON Circuit Judge.

As in every patent case, the court must select that method of approach to the crucial questions which seems to furnish the simplest and clearest solution; and, in the present case, it seems to us best to inquire: First, what were the scope and extent of Townsend's real invention, as shown by comparison with the state of the art? Second, does the defendant employ this invention? And, if so, then, third, do the terms of the patent grant fairly permit a construction which will cover the form of the invention so appropriated by defendant?

We are satisfied that the substance of Townsend's invention, its real inventive novelty, its meritorious forward step, are found in his creation of this connector, movable to the right and left inside the hub, clutching the hub at one end of its travel, at the other end of such motion clutching the brake mechanism, and, in its intermediate position, clutching neither. Whether its telescoping form with reference to the driving member and its thread and screw connection therewith were included in the foundation of his invention, or were only selected and nonessential forms, may be important in some future controversy. In this case it appears that defendant uses these more specific features, and so we hereafter assume, for the purposes of this case, that these two things are essential characteristics of the invention. ^[2] The peculiar means by which this shiftable connector at one time firmly unites the hub to the driving sprocket, and at another time firmly joins the brake to the driving sprocket, constitute only the environment of Townsend's invention. These things were necessary, in order to give the invention its operative field; but they were not, of themselves, of the body or essence of his primary inventive thought.

The prior art shows various forms of driving connections between the sprocket and the hub, released by back pedaling, and various forms of brakes so constructed that the two members of the braking pair were forced into contact by back pedaling pressure; but nowhere do we find any construction that fairly discloses this shiftable connector, screw-threaded upon the driver sleeve, revolvable both with and upon that sleeve, and clutching one mechanism, or the other, or neither, as it moves back and forth. We do not overlook the patent to Carver, No. 160,570, March 9, 1875, for a friction pulley. This contains the germ of the idea; but its modification and adaptation from the friction pulleys of a factory to the hub of a bicycle we think is, clearly enough, invention.

The Brewster patent, No. 713,594, November 18, 1902, and the connected testimony regarding early use, even if they established a sufficiently early date, would not demonstrate any lack of patentable novelty in Townsend's connector as we have described it. Brewster undertook to accomplish his objects by a loosely mounted sprocket having wedgeshaped cams on its vertical surface, which, upon reverse motion, would constitute a friction clutch with a loosely mounted disc having corresponding wedge-shaped cams, and would force this disc laterally into braking contact with a hub surface. The practical efficiency of this device is, at best, left doubtful by the testimony; and the Brewster patent and device chiefly serve to emphasize the thought that Townsend's invention was not in the driving clutch or in the braking mechanism, but was in the telescoping, screw-threaded connector sleeve, clutching, at the pleasure of the rider, the driving mechanism, or the braking mechanism, or neither.

The patent to Priest & Priest, No. 623,825, of April 25, 1899, might or might not need more careful consideration, if it was early enough; but there is nothing tending to carry it back of its date of filing, September 28, 1898, while Townsend's original application, though filed October 10, 1898, was executed September 19, 1898, and the proof is clear enough that Townsend's invention was perfected and in use in the summer of 1898. The Priest & Priest patent, therefore, needs no attention.

From our review of the prior art and the alleged anticipations or limitations, we are satisfied that Townsend's invention is essentially measured by this shiftable sleeve connector in this surrounding and application, and that his invention, while not rightly to be called pioneer, was the step which resulted in making practical and commercial the combination in one device of the driving, coasting and braking functions, and that his invention is entitled to a fairly liberal application of the rule of equivalents.

If this connector is the characterizing feature of Townsend's improvement, it is hardly to be doubted the defendant uses the invention. Referring again to the cuts, it will be seen that defendant has the Townsend sprocket, driver sleeve, shiftable connector, and threaded engagement between the two latter, almost precisely like Townsend. Indeed, no difference is said to exist, save in the means of clutching the brake mechanism and in the braking mechanism itself. The extent of these differences and what effect they have on the question of infringement must be reserved to consider in connection with the true meaning of the claim. It is enough to say at present that the shiftable connector sleeve, with the characteristic functions which have been described, and which we have found constituted the real and substantial advance which Townsend had made in the art, has been appropriated and is being used by defendant without material change of form.

Having thus found what Townsend invented, and that it has been taken by defendant, we come to the inquiry whether, through indifference or otherwise, the patent grant was so limited that it does not give to Townsend a monopoly of his real invention; and this requires that we first observe the departures which the defendant has made in its brake clutch and brake mechanism.

An effective brake consists of two members, which may be called a brake pair, and which we have spoken of as the brake shoe and the brake drum. This terminology implies that the relatively movable member be called the shoe and the stationary one the drum. It cannot make any particular difference which member revolves. In a bicycle structure, the axle is fixed, the hub is revolving, and the two parts of the brake pair are essentially the axle member and the hub member. The drum, as above defined, may be attached to the axle or to the hub. The relatively movable shoe may be pressed, radially, from the axle against the drum on the hub, or from the hub against the drum on the axle. Both forms were common. So, also, before Townsend's invention, brake drums had taken two forms: A cylindrical surface, against which an expanding or contracting ring was radially forced, and a tapered or conical surface, longitudinal of the axle, against which a corresponding tapered or conical hub surface was longitudinally forced. Townsend, like all others, could use any of these forms. He selected and illustrated the cylindrical and expanding ring form of brake that has been described. The defendant selected the conical form. It attached firmly to the axle (and anchored to the frame) the tapered nut, 10, and this became the relatively stationary member of the brake pair, or, as we have called it, the brake drum. Defendant then provided, within the hub, a sleeve which he splined to the interior surface of the hub, so that it must revolve therewith, but was longitudinally slidable therein. This sleeve is shown in the cut by the numeral 6. It was tapered at both ends corresponding to the tapers in the adjacent surfaces of the connector and the brake drum. When the driver sleeve receives back pressure and the connector is driven to the left, it makes contact with this sleeve, 6, and pushes the same along until the taper at the other end of the sleeve contacts with the brake drum. Then, as the lateral motion continues, it may be assumed that the connector and the right half of the sleeve, 6, lock together with an efficient friction clutch, in which case the left half of the sleeve obviously becomes the shoe member of the brake pair, and the braking effect is obtained. Defendant also provides complementary teeth, which make a positive lock between the connector and the brake drum when the connector reaches the extreme left-hand position; but the office of these interlocking teeth is wholly supplementary to the functions of Townsend's patent. They serve to maintain the braking effect after it is once established, and so lessen the muscular effort otherwise required in maintaining the back pedal pressure. They cut no figure on the question of infringement.

Defendant says that by the double taper of its interior hub sleeve it gets a double braking effect, part at each end. This may be true, but it is immaterial. If defendant uses the Townsend shiftable connector, at one point clutching the hub for driving, and at another point clutching the part which actuates the brake shoe, it is immaterial that it gets a supplementary braking effect somewhere else. Indeed, the difference between a friction clutch and a brake, in this situation, cannot be determined. Until the two members of the pair are so set that relative motion ceases, they constitute mechanically, a...