Ford Motor Co. v. Gordon Form Lathe Co., 7363
| Decision Date | 12 January 1937 |
| Docket Number | No. 7363,7364.,7363 |
| Citation | 87 F.2d 390 |
| Parties | FORD MOTOR CO. v. GORDON FORM LATHE CO. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Drury W. Cooper, of New York City (I. Joseph Farley and Bodman, Longley, Bogle, Middleton & Farley, all of Detroit, Mich., on the brief), for appellant and cross-appellee.
F. O. Richey, of Cleveland, Ohio (John W. Michael, of Milwaukee, Wis., F. M. Bosworth, of Cleveland, Ohio, Lecher, Michael, Whyte & Spohn, of Milwaukee, Wis., and Richey & Watts, of Cleveland, Ohio, on the brief), for appellee and cross-appellant.
Before HICKS and SIMONS, Circuit Judges, and RAYMOND, District Judge.
The bill charged defendant,1 Ford Motor Company, with infringing claims 1, 2, 12, 23, 24, 28 to 30, 33, 34, and 38 to 42 of letters patent No. 1,542,803, issued June 16, 1925, to Gordon Form Lathe Company, upon application filed July 16, 1920, by Charles Gordon and Alfred W. Redlin. One of defendant's machines, known as the Walcott or Melling machine, was charged to infringe all of the claims enumerated, while another machine, known as the Pioch machine, was alleged to infringe claims 29 and 30. The defenses pleaded were invalidity and noninfringement. Defendant has appealed from the holding of the trial court that all of the claims involved were valid and that all were infringed by the Walcott machine, and that claims 29 and 30 were infringed by the Pioch machine. The cross-appeal relates to paragraph 5 of the decree which denies plaintiff's application for accounting of defendant's profits and of plaintiff's damages prior to June 13, 1929, and to paragraph 6, which denies application for increased damages under 35 U.S.C. §§ 67 and 70 (35 U.S.C.A. §§ 67, 70).
Reference to prior litigation discloses the background of the present suit. The patent sued upon was involved in interference proceedings which terminated in the Court of Appeals of the District of Columbia, Melling v. Gordon et al., 55 App.D.C. 278, 4 F.(2d) 945; in proceedings under Rev.St. § 4915 (35 U.S.C.A. § 63) to compel issuance of patent to plaintiff therein, Melling v. Gordon Form Lathe Co., 14 F.(2d) 437 (D.C.Ohio); and in an appeal to this court, Gordon Form Lathe Co. v. Walcott Mach. Co., 32 F.(2d) 55, which reviewed a decision of the District Court reported in 20 F.(2d) 673 (D.C. Mich.), which case on appeal determined the scope and validity of all the claims here involved excepting claims 12, 23, 24, and 38. These prior decisions render unnecessary detailed description of the Gordon and Walcott machines or restatement of the nature of the patent claims heretofore adjudicated. The Walcott machine here charged to infringe is the same as the one under consideration in the suit which was on appeal in this court. The principal issue relative thereto is whether the present record discloses additional prior art which so limits the scope of the patent claims in suit that the Walcott machine should now be held not to infringe.
For reasons similar to those indicated in the former opinion of this court, it is thought unnecessary to discuss claims 12, 23, 24 and 38.
Even brief discussion of all the asserted new prior art in the present record would unduly extend this opinion. Full consideration thereof brings conviction of its insufficiency to warrant modification of our previous conclusion that the patentees were pioneers in disclosing means for oscillating the tool in synchronism with its reciprocatory movements and the revolution of the work by the use of an appropriately shaped cam, moveable frame, and bell crank lever tool support for use in cutting nongeometric forms and that the Walcott machine is an infringement. Upon the present record, the Blanchard lathe and the Westinghouse machine are most relied upon. The first was fully discussed in our opinion in the former case, and it suffices to say that in the view of the court there is still nothing to justify interpretation of that patent as disclosing a tool which is tilted to maintain it in proper cutting position during the cutting of a nongeometric form. The Westinghouse machine relied upon was built and used in 1910. Westinghouse did not tilt the tool to maintain it in proper cutting position relative to the work. The record is clear that the product of the machine was far from perfect and that, notwithstanding the demand for a cam turning machine, its use was abandoned after cutting a comparatively small number of shafts.
The decree of the lower court relating to the Walcott machine is affirmed so far as it relates to findings of validity and infringement of all claims relied upon excepting claims 12, 23, 24, and 38.
The Pioch machine alleged to infringe claims 29 and 30 has not been before this court. It was designed in 1929 by an employee of defendant soon after the decision of this court holding the Walcott machine to infringe. Its use was to cut the pear shaped cams which are a part of the camshaft and which raise and lower the valves of the cylinders of an automobile engine. Because of the sharper points of the cams as they had for many years been used in defendant's engine, plaintiff was unable with its machine, after efforts extending over many months, to accomplish more than a very moderate degree of success. Due to the necessary rapid change of position of the tool relative to the work piece as the tool passed from the lower to the upper side of the pointed end of the cam, a cut or gouge was frequently left on the lower side of the completed cam and an excess of material upon the upper side which resulted in a very considerable percentage of rejection, rendering it of dubious practical value in defendant's plant. Because of this inefficiency the Gordon machine was rejected by defendant after a long period of experimentation and the Walcott machine was substituted. Defendant used the Walcott machine until the decision of this court already referred to, whereupon the Pioch machine was developed and substituted. The issue involved in this branch of the case is whether the Pioch machine appropriated the mechanical principles...
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