Edwards v. Velvac, Inc.

• Decision Date: 12 March 1956
• Docket Number: Civ. A. 5764.
• Citation: 140 F. Supp. 936
• Parties: Leonard C. EDWARDS, d/b/a Edwards Air Hose Bracket Company, Sapulpa, Oklahoma, Plaintiff, v. VELVAC, Inc., Waller Carson, H. R. Salter, 3530 West Pierce Street, Milwaukee, Wisconsin, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

140 F. Supp. 936

Leonard C. EDWARDS, d/b/a Edwards Air Hose Bracket Company, Sapulpa, Oklahoma, Plaintiff, v. VELVAC, Inc., Waller Carson, H. R. Salter, 3530 West Pierce Street, Milwaukee, Wisconsin, Defendants.

Civ. A. 5764.

United States District Court E. D. Wisconsin.

March 12, 1956.

Quarles, Spence & Quarles, Milwaukee, Wis., J. Preston Swecker, Washington, D. C., for plaintiff.

Irving A. Puchner, E. Eugene Kohls, Milwaukee, Wis., for defendants.

TEHAN, Chief Judge.

The complaint herein charges the individual and corporate defendants with infringement of plaintiff's Patent No. 2,554,176 and with unfair competition.

The patent in suit was issued May 22, 1951 upon an application filed July 12th, 1949, and covers a bracket having a looped coil spring depending from the arm thereof. The device is intended to be mounted on the rear of the cab of a tractor-trailer motor truck to support the air brake hoses which extend from the tractor to the trailer. The bracket, as shown in the patent, consists of a base comprising a curved plate intended to be secured to the roof and rear wall of a tractor cab, directly above the rear window thereof, a rearwardly extending horizontally disposed arm fastened at its front to the upper portion of the base plate and carrying a looped spring at its rear end and a diagonal brace extending from the lower portion of the base plate to the arm, being secured to the arm near the outer end thereof. The hoses, by which the brake system of the trailer is connected with the tractor, are intended to be supported by the spring through which they are looped to keep them from being damaged by dragging on the tractor drive shaft and fifth wheel especially during jackknifing and sharp turns when the maximum length of the hoses is likely to be needed. In addition the bracket serves to keep the hoses from scuffing or chafing against the rear of the trailer cab and also to prevent their being smeared with grease from the fifth wheel which is usually covered with grease.

In addition to the base plate, arm and brace, the patent specifications and claims also define the bracket as having a pair of "body members" which are shown in the drawing as comprising pockets in the base plate wherein the front end portions of the arm and brace are received for securement to the base plate, through slits therein.

The defendants by their answers and amendments thereto have admitted the issuance of the patent to the plaintiff and that plaintiff is the owner thereof but deny the validity of said patent and the infringement thereof by the defendants. It is also denied that the defendants were guilty of unfair competition.

In determining the question of validity we will first consider defendants' contention that the patent in suit evidences no invention over the state of the art at and prior to the time the patentee Edwards entered it.

It appears without dispute that as far back as the early 1930's, operators of tractor-trailers were aware of the problem of keeping the air or vacuum hoses up off the fifth wheel and running gear structure, and yet providing for sufficient slack in the hoses to permit of turning and "jackknifing" and had adopted certain devices to solve the problem.

The commonest practice was to attach a clamp or clip directly to the center rear of the cab, either above or below the rear view mirror to which was fastened a spring through which the hose was looped. The plaintiff himself, who began operating heavy equipment back in 1930, so admitted, and identified in catalogue page exhibits, a hose suspension spring clip, a clamp, and a hose support bracket as typical devices for supporting a looped spring during those earlier years.

It appears that the employment of such devices as a clip, clamp or small bracket in conjunction with a spring, solved the problem of keeping the hose line free from the dangers of contact with the grease-filled fifth wheel and the running gear of the tractor, long before plaintiff filed his application for this patent.

However, it is urged by plaintiff that this method created or left unsolved certain objectionable features. The plaintiff points out that when the device of a clamp, clip or small bracket is affixed to the rear outside wall of the cab, the spring and hose depending therefrom are either in actual contact with the rear wall or extremely close to it, with the consequence that when the tractor is in motion the spring and hose would strike against the rear wall, chafing and scuffing it and causing annoyance to the driver.

Some time in 1949 the plaintiff recognized that if the point at which the spring was attached, were extended rearwardly some three, four or five inches from the vertical plane of the rear of the cab, the depending spring and hose would not come in contact with the cab. To achieve this result he designed a three piece bracket intended to be positioned on the curved surface of the top rear center of the tractor cab, and filed his application for patent thereon on July 12th, 1949. The patent in suit was granted on May 22, 1951.

The plaintiff claims that until his invention of the bracket device, there was no other type of equipment or device for supporting a hose except the clamp, clip and small bracket that he admitted were in common use theretofore. His claim in this respect is based upon his own experiences in observing other trucks and their equipment over a period of years, reaching back to 1930, during which years he drove at the rate of about 100,000 miles a year in the states of Colorado, Kansas, Oklahoma, Arkansas, Louisiana and Texas.

It may be that the plaintiff saw in his travels no types of equipment other than those admitted to and described by him, but we are persuaded by the testimony of other witnesses and the exhibits introduced through them that the state of the art was much more advanced than he claims.

There was introduced into evidence the depositions of some seven truck mechanics taken at Akron, Ohio, Evansville, Indiana, and Indianapolis, Indiana. These mechanics in each of these places, for the most part working independently and without knowledge of one another, had made and installed hose brackets for tractors, which served the same purpose as the patent in suit. These brackets, a number of which have been received in evidence, were made and put in public use from three to six years before the application was filed on the patent in suit. Their testimony showed that these men had made and installed a considerable number and variety of these hose brackets, differing from one another to a greater extent than some of them differed from the bracket in the patent in suit.

It appears without dispute that during the 1930's and 1940's, it was customary in the trucking industry for fleet owners to buy their tractors and trailers stripped. Their own truck mechanics did the work of mounting the fifth wheels, putting on the gas tanks, hooking up the vacuum or air hoses, and the like, it appearing that each fleet owner had his own uses and purposes to serve.

The evidence adduced through these depositions convinces the Court that for many years before plaintiff's application was filed on the patent in suit, a considerable number of variations of the basic structure of the bracket were well within the routine skills of the ordinary mechanic.

Objection has been made by the plaintiff to the receipt in evidence of the depositions of these truck mechanics, which were taken on November 9th, 10th and 11th, 1954, on the grounds that compliance was not made with the thirty-day notice provision contained in Section 282 of the New Patent Statute, Title 35 U.S.C., 1952.

"In actions involving the validity or infringement of a patent the party asserting invalidity or noninfringement shall give notice in the pleadings or otherwise in writing to the adverse party at least thirty days before the trial, of the country, number, date, and name of the patentee of any patent, the title, date, and page numbers of any publication to be relied upon as anticipation of the patent in suit or, except in actions in the United States Court of Claims, as showing the state of the art, and the name and address of any person who may be relied upon as the prior inventor or as having prior knowledge of or as having previously used or offered for sale the invention of the patent in suit. In the absence of such notice proof of the said matters may not be made at the trial except on such terms as the court requires."

It appears to this Court that the objection must be overruled and the depositions received as proof on the basis of the pre-trial order entered in this matter under date of October 5, 1954.

The plaintiff herein had moved for a preliminary injunction, which the Court after hearing denied. In an effort, however, to be helpful, the Court advanced the case, and held a pre-trial conference on the 5th day of October, 1954. At that time, the Court set down the trial for December 7th and 8th, 1954, and further ordered that:

"1. Not later than November 15, 1954, all amendments to pleadings and motions preliminary to trial will be filed, and all discovery procedure will be completed."

On November 2, 1954, the defendants gave the plaintiff notice that testimony would be taken on the 9th and 10th in Akron and Evansville, and on the 5th of November, they gave notice of the examinations to be held on November 11th at Indianapolis. The first examinations therefore were lacking one day, and the last examination three days, of the prescribed thirty-day notice.

It appears to this Court that the defendants, who had cooperated in the advancement of the case, and had accepted a limited period within which to complete their preparation, were entitled to rely on the time limit set forth in the pre-trial order, to complete their discovery procedure, no matter what defense it touched upon. If the plaintiff was aggrieved or felt prejudiced, he should have...