Gerosa v. Apco Mfg. Co., 1685.

• Decision Date: 28 May 1924
• Docket Number: 1685.
• Parties: GEROSA et al. v. APCO MFG. CO.
• Court: U.S. Court of Appeals — First Circuit

299 F. 19

GEROSA et al. v. APCO MFG. CO.

No. 1685.

United States Court of Appeals, First Circuit.

May 28, 1924

Melville Church, of Washington, D.C. (J. King Harness, of Detroit Mich., and Alfred H. Hildreth, of Boston, Mass., on the brief), for appellants.

Wallace R. Lane, of Chicago, Ill., and Chauncey E. Wheeler, of Providence, R.I. (Arthur M. Allen, of Providence, R.I., and George Mankle, of Chicago, Ill., on the brief), for appellee.

Before BINGHAM and JOHNSON, Circuit Judges, and HALE, District Judge.

HALE District Judge.

This case comes before the court upon appeal from a decree of the United States District Court in the Rhode Island District dismissing plaintiffs' bill, which charged:

(1) Infringement of letters patent No. 1,263,879, Anthony Gerosa lug for power plant support for motor vehicles, granted April 23, 1918, on application filed May 9, 1917.

(2) Infringement of an alleged trade-mark on the descriptive phrase 'Crank Case Repair Arm.'

(3) Unfair competition by defendant's manufacture and sale of its Apco crank case arm for Ford cars. The decree of the District Court also sustained the defendant's counterclaim, and ordered the relief sought therein by directing an injunction to restrain plaintiffs' alleged inequitable conduct in threatening suits and intimidating customers of the defendant. The decree also referred the case to a master, to take an account of damages sustained by the defendant by reason of the plaintiffs' alleged wrongful acts.

The plaintiffs' 30 assignments of error are intended to raise the ultimate questions: Whether or not the Gerosa patent in suit is valid and infringed by the defendant; whether or not the defendant was guilty of unfair competition in copying plaintiffs' commercial form of the patented device, in obtaining a design patent and marking its goods with the word 'patented,' and advertising that it owned a patent covering the devices sold by it; whether or not the plaintiffs were guilty of unfair competition or of inequitable conduct in advertising, in threatening suits against persons alleged by the defendant to be its customers; and whether or not defendant was entitled to an accounting for alleged damages sustained by it because of plaintiffs' alleged inequitable acts.

The specification of the patent in suit points out the liability to breakage of the lugs or arms of automobiles of the Ford type, and that to remedy such breakage requires the dismantling of the power plant to get at the transmission cover, so that a new connection may be effected; that the Ford Company furnishes crank case arms of substantially the same construction as the original arms or lugs, to replace broken arms, but that this method of repair is expensive; that the principal objects of the invention are to overcome the above features and to--

'provide improved power plant supporting lugs which may be readily applied by unskilled labor in a few moments and, second, to provide inexpensive, simple, efficient lugs for application to a motorcar chassis before or after the ordinary lugs become broken, whereby, in case the improved lugs are applied prior to breakage, they will still maintain the motor transmission and its complemental propeller shaft in alignment, and whereby, in case the support is applied after breakage, dismantling of the engine is obviated.'

All the claims are put in issue: '1. In a motor vehicle construction, the combination of a chassis frame, a flanged power plant housing, lugs interposed between said frame and housing, and secured thereto for supporting the housing, auxiliary supporting lugs having forked ends interposed between the flange of said housing and said frame, the forked portion of such auxiliary lugs straddling the first-mentioned lugs, and means for clamping said auxiliary lugs to said flange and to the chassis frame.

'2. In a motor vehicle construction, the combination of a chassis frame, a flanged power plant housing, lugs interposed between said frame and housing, auxiliary supporting lugs, each embracing a vertical plate having a horizontally disposed forked extension and a top extension, which extensions are oppositely disposed, which auxiliary supporting lugs are interposed between the flange of said house and said frame, the said forked portions straddling a first-mentioned lug and the top extensions resting upon the chassis frame, bolts for securing said top extensions and said plate to the chassis frame, and bolts for securing said bottom extensions beneath said housing flange.

'3. A power plant housing supporting lug, comprising a vertical plate having a relatively wide base, said plate converging to a contracted top, said plate having a horizontal top extension and a horizontal forked bottom extension.

'4. A power plant housing supporting lug, comprising an integral member consisting of a vertical tapered plate having a top and bottom extension of which the lower extension is forked, said extensions being oppositely disposed.

'5. In a motor vehicle construction, a chassis frame, a two-part power plant housing having flanged portions bolted together, a hanger for the housing bolted to the top and side of the frame in combination with an auxiliary lug for supporting the housing in event of breakage of said hanger, comprising an apertured plate having top and bottom extensions, of which the top extension is apertured and is adapted for engagement over the frame top, and of which the lower extension is apertured and is shaped and proportioned to engage over at least a portion of said hanger in abutting relation with the underside of said flanged portions, the various apertured portions of said auxiliary lugs aligning with said bolts in flanges and frame, whereby the aforesaid bolts may be re-employed for securing said lug to the flanges of the housing and to said frame.

'6. In a motor vehicle construction, the combination of a chassis frame, a power plant housing having flanged portions bolted together, and a hanger for the housing bolted to the chassis frame, with an auxiliary lug for supporting said housing in the event of breakage of said hanger comprising an apertured body portion having upper and lower extensions, of which the upper extension is adapted for engagement over the chassis frame top and of which the lower extension is apertured, and is shaped and proportioned to engage over at least a part of said hanger in abutting relation with the flanged portion of said housing, the apertures of said auxiliary lug aligning with the aforesaid bolts in the frame and housing flanges, whereby said bolts may be re-employed for securing said auxiliary lug to the chassis frame and to the housing.

'7. A power plant housing supporting lug, comprising a vertical body portion having an upper and lower horizontal extension, the lower extension being forked to accommodate the housing parts.

'8. A power plant housing supporting lug, comprising a vertical body portion having an upper and lower horizontal extension, the lower extension beng forked and provided with bolt openings, and at least the said body portion being provided with an additional bolt opening.'

The eight claims of the patent may be divided into two classes: Claims 1, 2, 5, and 6 state the alleged invention in detail; they present a combination. Claims 3, 4, 7, and 8 may be called the broad claims. Claim 1 presents the substantial features of the combination claims; all of these features are to be found in the parts of a motor vehicle construction. They are: (1) A chassis frame; (2) a flanged power plant housing; (3) lugs interposed between the frame and the housing; (4) means for securing the lugs to the frame and the housing for supporting the latter; (5) auxiliary supporting lugs interposed between the housing flange and frame, the forked portion of such auxiliary lugs straddling the first-mentioned lugs.

The patentee says the first four of the above elements are old, and are arranged in the usual way; that his invention resides in the fifth element, namely, the auxiliary supporting lugs, and in the combination of this element with the other four; that this presents a new and useful method of repair of the Ford arm; that the device is especially adapted to the repair of model T of such car; that claim 1 covers the structure wherein the repair arm is assembled before a breakage has occurred; and that claims 2, 5, and 6 are drawn to cover a supporting lug assembled after the original lug has been broken; that Gerosa, the patentee, attached his device to the frame in substantially the same way the Ford arm was attached, and in fact to the same openings; at the bottom, however, he attached his arm to the parting flanges of the upper and lower crank casings; that the original Ford arm-- attached rigidly to the frame at the top-- was attached to a flexible pan at the bottom, and permitted vibration sidewise of the frame, which caused a break; that it was found that the connection of the frame in a rigid manner at both top and bottom eliminated breakage; that the use of the lug in connection with the other four elements is new, especially in the repair of Ford cars.

Claims 3, 4, 7, and 8 are the broad claims; in claim 7 the essential features are briefly brought before us:

'A power plant housing supporting lug, comprising a vertical body portion having an upper and lower horizontal extension, the lower extension being forked to accommodate the housing parts.'

These claims present a Z-shaped bracket with the lower middle portions of the Z cut away, to properly fit the structure to which it is applied. They cover an ordinary bracket, which has a vertical body portion and an upper and lower horizontal extension; such extension being cut away, to accommodate the parts against...