Dean Rubber Mfg. Co. v. Killian, 11428.
| Decision Date | 08 November 1939 |
| Docket Number | No. 11428.,11428. |
| Citation | 106 F.2d 316 |
| Parties | DEAN RUBBER MFG. CO. et al. v. KILLIAN. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Arthur C. Brown, of Kansas City, Mo. (Arthur C. Brown, Jr., and Claude A. Fishburn, both of Kansas City, Mo., on the brief), for appellants.
F. O. Richey, of Cleveland, Ohio (B. D. Watts, of Cleveland, Ohio, Charles W. Gerard, of Kansas City, Mo., and Richey & Watts, of Cleveland, Ohio, on the brief), for appellee.
Before GARDNER and THOMAS, Circuit Judges, and WYMAN, District Judge.
This is an appeal from the District Court for the Western District of Missouri in a patent infringement suit instituted by Frank B. Killian, Trustee, as owner of the patent, hereinafter called the plaintiff, against Dean Rubber Manufacturing Company and Wilbur J. Dean, hereinafter referred to as defendants.
On November 2, 1926, the patent in suit, No. 1,605,445, was issued to one Fred L. Killian, and by reason of certain assignments the title to said patent was, on or about September 25, 1935, duly transferred to and vested in Frank B. Killian, Trustee, who is still the sole owner thereof.
The particular machine involved in the suit is designated in the letters patent as a "machine for manufacturing thin rubber articles" and while the machine performs several functions incident to the manufacture of such articles as toy balloons, nipples, finger cots, gloves, etc., this suit involves only those parts of the machine which have to do with the formation of an annular bead on the edge of the open end of the article while it is still on the form in an uncured, plastic condition. Those portions of the machine of the patent involved in this suit consist of a power-driven, endless, conveyor belt, mounted on two pulley wheels so as to operate longitudinally of the machine, upon which belt, at regularly spaced intervals, are mounted a number of upward projecting pins. Each of the forms or molds upon which the article to be manufactured is shaped is bored to receive and fit over any of the upright pins mounted on the conveyor belt. A groove or recess is cut into and around the lower circumference of the form so as to make a flange which, in operation, engages a strip on the side of the machine, which holds the form firmly in place, but permits it to rotate on the pin. Mounted on a shaft over the conveyor belt is a cylindrical, rotary brush, set at an incline, so placed in the path of the forms, as they are carried through the machine by the conveyor belt, that the revolving brush contacts the edge of the plastic rubber near the lower end of each of the forms. Mounted on the machine opposite to said rotary brush is a power-driven endless belt which operates longitudinally of said machine and is so placed that the face of said belt will engage the lower circumference of each form and impart a rotary motion thereto as it is carried past the brush. The forms are dipped into raw rubber liquid until they are coated with the same to the thickness required for the article to be manufactured. They are then placed on the pins on the conveyor belt and as they approach the brush the lower circumference of the forms comes in contact with the face of the endless belt which imparts to each form a rotary motion, revolving the same upon the pin in such a manner as to bring the entire circumference of the edge of the plastic rubber on the lower end of each of the forms in contact with the rotary brush as it is carried past the same. As the edge of the rubber film on the forms comes in contact with the revolving brush it is rolled up onto itself in such a manner as to form an even, compact bead around the entire edge of the open end of the article being manufactured.
The defendants' machine was designed to perform this same function in the manufacture of thin rubber articles and the principle involved in the rolling of the bead upon the article manufactured is the same in both machines. The forms, held in an upright position, are rotated as they are carried past and come in contact with a cylindrical revolving brush which rolls up the rubber and forms the bead. In defendants' machine the forms are set in two rows at regularly spaced intervals upon form boards which are placed upon a conveyor chain and are rotated by means of a stationery rack attached longitudinally to the machine which engages a pinion which, in turn, revolves the form by the engagement of bevelled gears or ratchets cut in the lower end of the form and in the upper end of the pinion gear mechanism. As the forms, thus mounted, are carried along the machine by the conveyor, each row of forms progressively contacts an inclined, cylindrical, revolving brush which rolls the bead on the rubber article in identically the same way it is done by the plaintiff's machine.
The patent in suit includes twenty claims, ten of which, namely, 1-8, 9, 11 and 15 to 20, inclusive, have reference to the mechanism constituting the means to rotate the forms as the same are carried past the revolving brush, and it is these ten claims which the plaintiff asserts are infringed by defendants' machine.
The defendants base their defense upon the contention that the patent in suit is invalid and a denial of its infringement.
The record indicates that the defendants do not seriously contend that the patent in suit is necessarily invalid. It is their contention that it is a narrow structural or improvement patent defined and limited strictly by the terms upon which it was allowed and issued by the patent office, having an exceedingly narrow range of equivalents, and that, as such, it is valid, but to accord to it a range of equivalents broad enough to include defendants' device results in its invalidity for anticipation and lack of invention by reason of disclosures in Hadfield, No. 1,097,017 and Brubaker, No. 1,192,383. These two patents represent the only prior art relied on by defendants in support of their claims of invalidity, and both of these patents are cited in the Patent Office proceedings in the application for the patent in suit. This same prior art was also relied on to show anticipation and non-invention in an earlier suit brought for the infringement of the patent in suit, against J. L. Shunk Rubber Co., in the District Court of the United States for the Northern District of Ohio; in the case for infringement of the patent in suit against Standard Rubber Co., in the District Court of the United States for the Northern District of Ohio; and the case brought for the infringement of the same patent against Perfection Rubber Co., in the District Court of the United States for the Northern District of Ohio; and in the case against Carl Schmid, Inc., brought for the infringement of said patent in the District Court of the United States for the Southern District of New York. (Neither of said cases being reported.) As well as upon the appeal of the last mentioned case to the United States Circuit Court of Appeals for the Second Circuit. Stevens v. Carl Schmid, Inc., 2 Cir., 73 F.2d 54. All of these suits resulted in decrees holding the patent in suit valid and infringed.
It seems to be well settled that the allowance and issuance of a patent by the patent office creates a presumption as to its validity (Mumm v. Jacob E. Decker & Sons, 301 U.S. 168, 57 S.Ct. 675, 81 L.Ed. 983; Radio...
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