Freeman v. Premier Mach. Co.
| Decision Date | 06 August 1935 |
| Docket Number | No. 3909.,3909. |
| Citation | 11 F. Supp. 761 |
| Parties | FREEMAN v. PREMIER MACH. CO., Inc. |
| Court | U.S. District Court — District of Massachusetts |
Chas. E. Riordon, of Washington, D. C., and Nathan Heard and Frederick A. Tennant, both of Boston, Mass., for plaintiff.
Macleod, Calver, Copeland & Dike, George P. Dike, and Cedric W. Porter, all of Boston, Mass., for defendant.
In this suit the plaintiff alleges infringement of United States letters patent 1,681,033. Infringement is admitted if the patent is valid. The defenses are anticipation and want of invention. The latter defense is the one principally relied upon.
Statement of Facts.
1. On August 14, 1928, upon an application filed December 3, 1923, letters patent of the United States No. 1,681,033 issued to the plaintiff covering an alleged improvement in machines for use in the manufacture of boots and shoes, particularly for forming the open-work or cut-out section in shoe uppers.
The patent carries 94 claims, some relating to the machine as a whole; other claims are confined to dies used in the machine. Since the defendant is only a manufacturer of dies, the only claims involved in this suit are those relating to the dies which the plaintiff claims to have invented for use in his machines. The claims involved are said to be 6 to 8, 10 to 18, 62, 65 to 74, 79, 81, and 94. Of these claims, 6, 16, 74, and 81 have been deemed by the parties as typical of the 26 claims in suit. These claims are as follows:
2. Prior to plaintiff's invention, which was first disclosed about 1921, machines had been in use by shoe manufacturers for punching designs in the tips of shoes and in making eyelets and buttonholes. When, about 1923, the style and fashion of cutout ornamental designs in the shoe uppers came into vogue quite extensively, it was deemed unprofitable to produce shoes with these ornamental cut-outs except by manufacturers of handmade or high-priced specialty shoes.
Before Freeman entered the art with his invention, the usual method of making cutout shoes was to take the pieces of material which were to be made into the upper and cut out the desired pattern with the use of a templet and a knife or with a hand mallet die placed over the piece with reference to inked marks thereon, or with what is known as a flat bed die, on which the piece to be cut was laid with respect to edge gauges. The flat bed die was used in presses similar to those utilized by the plaintiff, and the principle of employing upstanding cutting edges mounted upon a work support was applied in the use of flat bed dies.
According to these earlier methods, the cut-out pieces were later assembled into the shoe upper with the result that the lining was present beneath the cut-out holes. The completed upper, known as the "fitted upper," was then built over the last and the shoe finished; and operatives in the packing room of the shoe factory cut out the lining either with a knife or a machine known as the "Booth trimmer."
Experience taught that this additional operation was not only expensive but oftentimes unsatisfactory. Evidence was offered by the defendant tending to show that by the use of the handle die it was possible to cut through not only the leather but the lining as well, thus cutting out the ornamental designs after the shoe had reached the stage of a fitted upper. The weight of evidence, however, was that such process was not feasible or economical and had not been adopted by shoe manufacturers. There was also evidence, and I find, that machines old in the art had been used with flat bed dies in making cut-out shoes. This was done by laying the vamp over upon the flat bed die and holding it in position by the hand. Such operation was fairly satisfactory if the cut-out was in the shoe upper, but it was impossible to carry the operation to the quarters or sides of the shoe.
The art of perforating shoe tips by the use of tip presses was fully covered by patent as, for instance, Rigby, No. 1,113,910 (1914); Schwalbach, No. 1,313,956 (1919); Hudson, No. 1,389,645 (1921).
The Booth trimmer, for cutting out lining, was also protected by Wentworth, No. 1,279,624.
3. In this state of the art, Freeman entered. What he did was to provide a mechanical device which could be used to cut decorative patterns anywhere in the shoe upper with accuracy and speed by a simple machine operation and substantially unlimited as to shape, number, and location of cut-out holes; the operation being carried out on the closed upper completely lined, cutting the upper and lining in one operation. This operation obviated the necessity of trimming and marking the work for location of cut-out design.
He accomplished this purpose by devising a die which has come to be known as the "anvil die" to distinguish it from the flat bed die. In this device he has embodied the following elements: (1) A movable work support or anvil. This element is constructed with a flat top and recessed lateral sides over which a fitted upper may be draped. (2) A work cutter mounted on the work support having upstanding cutting edges. (3) A stripper mounted on the work support. (4) A mask which serves as a clamping means for the work, and as a gauge or locating means for the work. According to the claims, the so-called mask or holddown plate is provided with an opening to surround the cutting edges of the die, one edge of said opening being arranged to act as a gauge for the positioning of a piece of work beneath the holddown.
According to his specifications, Freeman points out that the machine will operate with equal facility upon the sides of the upper, particularly the closed upper, upon the quarter sections, through the vamp, boxing, tongue portion, or tip, and that by the operating instrumentalities the open-work designs and formations may be cut out entirely through the upper and lining in one machine operation.
4. The plaintiff concedes that all the elements, taken separately and divorced from function or combination, were old.
In view of this admission, it is unnecessary to dwell further upon the mass of evidence introduced by the defendant, tending to show that some one or more of these elements were to be found in patents issued prior to Freeman's invention.
5. It cannot be contended on the evidence that any device, previously used in shoe manufacturing or disclosed in the prior patents, embodied all of these elements, although it is possible to find one or more of the elements in the prior patented art cited by the defendant.
Patents cited by defendant, such as Stanbon, No. 1,430,697 for vamp gauge for punching machines, Whitcomb, No. 1,430,710, for vamp locating device, and Newton, No. 1,439,019, for vamp perforting machine, embody several elements of the Freeman device in combination; but no one of them shows a die constructed with recessed sides to receive the uncut portion of the upper, or the specific features of the Freeman mask.
Since none of these patents shows a device designed to accomplish the purposes of the Freeman dies, and none of them discloses all the elements in the same association, it seems unnecessary to prolong this opinion with a detailed discussion of these several citations.
It is sufficient to find, as I do, that none of them was designed to meet the problem which confronted Freeman, none showed the same means of accomplishing the intended results, and none could be adapted to produce those results without material modifications.
6. When a necessity for some device for cutting out these ornamental...
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