Eck v. Kutz

• Decision Date: 23 September 1904
• Docket Number: 34.
• Citation: Eck v. Kutz, 132 F. 758 (E.D. Pa. 1904)
• Parties: ECK v. KUTZ.
• Court: U.S. District Court — Eastern District of Pennsylvania

132 F. 758

ECK v. KUTZ.

No. 34.

United States Circuit Court, E.D. Pennsylvania.

September 23, 1904

[Copyrighted Material Omitted]

Joseph C. Fraley and Henry N. Paul, Jr., for complainant.

Charles Howson, for defendant.

ARCHBALD District Judge. ^[*]

The mechanical devices which are the subject of the present suit are designed as constituent parts of machines for knitting stockings, and have to do with fashioning the heels and toes. Knitting machines of this character--aside from the driving parts-- consist essentially of a series of vertically movable needles, surrounded by a cylinder provided with inwardly movable needles, surrounded by a cylinder provided with inwardly projected cams, which form a race or course, along which, when the cylinder is revolved, the needles are forced to run by the engagement of the cams with their outwardly protruding hubs or butts. In knitting the legs and feet of stockings the full circle of needles is employed; but, when a heel or toe is to be formed, half of them must be put out of action, and they are accordingly raised to a level where they will not be affected by the cams, while the other half continue knitting, the cam cylinder being reciprocated back and forth for that purpose. The heel or toe is formed by first narrowing and then widening, and this is accomplished by throwing up a needle at each end of the active row, with each reciprocation, in the one process, and conversely by throwing down into operation, one at each end of the idle row, with each reciprocation, in the other; and when this is completed, and full knitting is to be resumed, the half of the needles at the back of the machine which were left inactive must be thrown down in a body, so as to be in position for action again. Originally the 'half back' needles, as they are called, had to be 'picked up' and 'picked down' by hand, and the same was true of the single needles, in narrowing or widening.

The reciprocation of the cylinder was also produced manually, the driving crank being first turned one way and then the other. The whole time and attention of the operator was thus monopolized, and one was required for each machine. Progress in the art has been in the direction of dispensing with this constant supervision and intervention, and in making the machine more and more self-regulating. In this way, first semi-automatic, then three-quarters automatic, and finally seven-eights (or, as some profess, fifteen-sixteenths) automatic, machines have been developed; in the later of which the attention of the operator is required at only one or two points, and several machines may be managed at the same time

It is to this improvement in the art that the appliances devised by the complainant are addressed, and there can be little doubt as to their entire effectiveness for the purpose for which they were designed. The first to be brought forward was one relating to the throwing down of the needles in the process of widening. It is and will be first considered. The third and fifth claims, which are the ones here relied upon, are as follows:

'(3) In a knitting machine, the combination with the cam cylinder, provided with a race for the needle hubs, of pivoted arms, throwing down spring-pressed cams or levers, movable with said pivoted arms and also having separate movement thereon, and a lever for throwing said cams into and out of operative position.'

'(5) In a knitting machine, the combination with the cam cylinder, provided with a race for the needle hubs, of spring-pressed pivoted arms, a vertically movable cross-arm engaging the same, and cams pivotally connected with said pivoted arms and being movable therewith, and also having a spring-controlled movement thereon, substantially as described and for the purposes specified.'

As shown by the specifications and drawings, the so-called 'droppers' which are thus described are two in number, each made up of two arms pivoted together; one being located within, and one without the cam cylinder, and each arm being independently spring-pressed into normal place. The inner arm is cam-shaped, and has a hooked end, with which to engage the needles, and when intended to operate stands squarely in their path. Each dropper in this position is so stationed and arranged as to arrest and throw down with each reciprocation of the cam cylinder the end needle of the series advancing towards it, while at the same time it permits the passage of the whole of them unaffected over it upon their return. The mechanism by which the droppers are co-ordinated and controlled consists of double cross-arms on the outside of the cam cylinder, extending from one dropper to the other, and engaging a lug on the exterior arm of each; the said cross-arms being capable of being shifted vertically upon a central pin and slot, under control of a radially projecting lever pivoted centrally between them. The operation of the lever and cross-arms was not confined in the original invention to the droppers, but extended to the throwing-up cams or lifters as well, so that as the one were thrown into operation the others were thrown out, and vice versa; and this double arrangement is made the subject of certain claims of the patent. But this does not affect those which are here in controversy, which are distinguished from them; the inventor having divided up his conception, and made separate claim for the droppers with their controlling mechanism by themselves. The claims before us are also distinct from each other; the central lever, without mention of the cross-arms by which motion is communicated to the droppers, being specified in the third; while the cross-arms, without mention of the controlling lever, are claimed in the fifth; although the omitted element or its equivalent would seem to be essential and to be implied in each.

It is conceded that there is no exact counterpart to be found in the prior art for the combination which is thus brought together in these claims. But it is contended that each of its distinctive features appears there in substantially the same form and invested with the same functions, and that it involved nothing inventive or patentable novel to combine them; or, if it be conceded that a certain margin of invention was left open, it was a narrow one, calling for a strict construction, against which the defendant, who has a special mechanism of his own, does not offend. Apart from the cam cylinder, the device embodied in these claims essentially consists of the two general elements, the droppers and the mechanism for controlling them, each of the particular character described, and the first question is as to their independent novelty. Except upon the basis suggested, this is not material, if the whole combination is novel; but the discussion is necessitated by the argument, and in any event will not be without profit.

It is contended, however, with regard to the droppers, that the complainant is estopped from asserting that they were not anticipated by the prior art, having canceled in the Patent Office, on references cited by the examiner, that part of the original application in which this feature was specifically claimed. This would no doubt be true, if effort was now being made to hold the defendant for the use of this single feature of the combination, apart from the rest. But that is not the case. The complainant charges the appropriation of the whole invention, and it is difficult to see on what principle he should be debarred from showing the novelty of its different features, if necessary in order to maintain its validity as it was finally allowed. This is not impugning, but upholding, the rulings of the Patent Office, going to show, as it does, that the patent was properly granted, upon whatever ground assailed.

Neither am I able to concur in the further contention, which is made in the same connection, with regard to the other element of the combination, that, because of the rejection of a claim for vertically movable cross-arms controlling the throwing-up cams or lifters, the complainant is estopped from claiming that he was the first to devise controlling mechanism for a 'picker' of any kind, either dropper or lifter. A dropper is not a lifter, nor able by any means to be similarly treated. But, more than that, the argument that there is no patentable difference between the claims with regard to the droppers, which were allowed, and those with regard to the lifters, which were not, seeks to establish the invalidity of the one by the rejection of the other, in the very face of their allowance, a result which would certainly be anomalous. Undoubtedly a patent must be taken with all its limitations, and resort may be had to its course through the Patent Office to determine them; neither can rejected features be reasserted, nor a broad construction be insisted on, where a narrow one has been accepted by amendment, to meet the objections of the examiner. But, subject to this, the patentee is entitled to have his patent taken as it reads, with due regard to the invention idea embodied in it, without having it treated in such a way as would virtually destroy it.

This clears the way for the consideration of the prior art, and that with respect to the droppers will first be considered. While July, 1893, is the earliest date that can be assigned for the successful reduction to practice of the entire invention, it is claimed that the double-jointed droppers were devised in July, 1892, a year previous. It is so testified by the complainant, as well as by his son Elmer and the original cam cylinder which is said to have been fitted with a dropper of this character is produced to further verify it. But the complainant is a highly interested witness, and his son is not much...