Gordon Form Lathe Co. v. Walcott Mach. Co.

• Decision Date: 12 April 1929
• Docket Number: No. 5111.,5111.
• Citation: 32 F.2d 55
• Parties: GORDON FORM LATHE CO. v. WALCOTT MACH. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

32 F.2d 55 (1929)

GORDON FORM LATHE CO. v. WALCOTT MACH. CO.

No. 5111.

Circuit Court of Appeals, Sixth Circuit.

April 12, 1929.

F. O. Richey, of Cleveland, Ohio (John W. Michael and Bottum, Hudnall, Lecher, McNamara & Michael, all of Milwaukee, Wis., and Richey & Watts, of Cleveland, Ohio, on the brief), for appellant.

J. L. Stackpole, of Boston, Mass. (Otis A. Earl, of Kalamazoo, Mich., and H. L. Kirkpatrick, of Boston, Mass., on the brief), for appellee.

Before MOORMAN, HICKENLOOPER, and KNAPPEN, Circuit Judges.

HICKENLOOPER, Circuit Judge.

The appellant originally instituted its action in equity in the District Court for an injunction and accounting for alleged infringement of patent No. 1,542,803, issued June 16, 1925, upon application of Charles Gordon and Alfred W. Redlin, filed July 19, 1920, for a lathe. The District Court found the claims in issue valid, but not infringed. The parties to this appeal will be referred to by the designations of complainant and defendant, by which they were known in the court below. Claims 1, 2, 12, 23, 24, 28-30, 33, 34, and 39-42 are in issue.

The patent in suit relates particularly to lathes for turning irregular or noncircular bodies of metal, such as cams, cheek pieces of cranks, etc., otherwise referred to by counsel as nongeometric figures. The separate units of the machine are designed with a view to arrangement in rank and the turning, in one operation, of the multiple cams on an automobile cam shaft. The patent is here attacked as void for want of invention, and, if valid, lack of infringement is urged in defense. The claim of invention is predicated both upon the aggregate organization of the separate units in rank and upon the combination of means for the operation of the single unit. It is apparent, however, that unless invention exists in organizing the single unit, the mere arrangement of such units in rank, so as to work simultaneously upon a number of different cams mounted upon a single shaft, would not constitute such invention. We are therefore primarily concerned with the question of invention, as it relates to the separate unit of the complainant's machine, and, if the patent be found valid, then with the question of infringement by the defendant's machine.

Prior to about 1920 such cams were cast and then rough-ground to approximate dimensions. They were then case-hardened and reground to accurate dimensions. Such grinding operations were expensive, dirty, and to some extent dangerous, and Gordon conceived the idea of substituting a turning operation for the initial rough-grinding. After hardening, the steel cannot be turned, and the final or finishing grinding operation is still practiced. In order to successfully accomplish the turning operation upon a revolving blank, the work being revolved and moved transversely of the cutting tool, the tool must of necessity be moved forward and back in a plane transverse the axis of the work, so as to trace the outline of the finished cam or other work; and such tool must likewise be oscillated in the plane of its reciprocating movement, so that it may always maintain the substantially normal cutting angle in relation to the surface of the work, and neither skip and scrape, nor gouge or "hog," such work.

To accomplish these results, Gordon and Redlin provided two cams adjacently mounted upon a shaft turned in synchronism with the revolution of the work. Independent of these cams, but suitably placed, a plate or flat rocker arm, referred to as the frame, was pivotally suspended from a supporting shaft. This permitted of a swinging movement to and from the work. To this frame was affixed a roller bearing contacting with one of the cams, and a spring tending to draw the frame toward such cam and to hold said roller in contact therewith. The tool holder was also mounted on the frame adjacent to the work, and the angularity of the tool to the work was controlled by the other cam and a bell crank lever, with roller bearing and spring adapted to hold such bearing upon its cam. Neither of the controlling cams were replicas of the work to be cut, but both were more or less arbitrarily designed to accomplish the dual purpose of swinging the tool to and from the axis of the work, and of oscillating the tool at or near its cutting edge, so that the normal angle of the tool to the work might be continuously maintained.

Of the claims in issue, claims 1, 2, 28, 29, 30, 33, 34, 39, 40, 41, and 42 relate to the tool-moving and tool-tilting mechanism above described. Claims 12, 23, and 24 relate to matters of general organization and automatic stopping means, and the subject-matter of these claims was not pressed upon argument, is said not to be incorporated in defendant's machine, and is not here considered. Of the claims relating to tool-moving and tilting mechanism, claim 2 is admittedly typical and reads:

"2. In a lathe the combination of a rotary work holder, a tool holder provided with a cutting tool, movable towards and from the axial line of the work holder and angularly adjustable in a plane transverse to the axis of the work holder, cams adapted to vary the distance between the point of the tool and the axial line of the work holder, and to vary the adjustment of the tool for maintaining proper cutting and clearance angles of the tool to work of noncircular contour, means for synchronously rotating the work holder and cams, and means for simultaneously causing relative movement between the work holder and tool holder axially with relation to the work holder."

The Gordon and Redlin lathe obviously has its limitations and its disadvantages, if not defects. The tool is pivoted at, or substantially at, its point, thus requiring it to turn too rapidly and over too great an arc when cutting long-nosed or sharp-pointed cams. This makes it impossible for the tool to follow at normal angularity the desired contour immediately after turning such sharp nose, and there exists a tendency to leave excess metal on the far side of the point. The necessities of commercial construction and the use of the roller upon the tool-reciprocating cam, in which a depression or hollow is used to withdraw the tool from the center of rotation of the work, likewise limits the extent to which the tool can be withdrawn from the axis of the work, and thus limits the length of the nose or irregular projection which the device can cut, as a practical matter. Notwithstanding these defects and limitations, a comparatively large number of the machines have been marketed commercially, a great many cams and crank cheeks have been successfully turned, and some of such machines are still rendering satisfactory service. The general utility of the device as a commercial and operating machine would seem to be established, and, if it has been supplanted, it is more probable that this was due to the development of the defendant's machine, which avoids some of the disadvantages of, and does some types of work better than, the complainant's machine. On the degree of operability necessary, see Hildreth v. Mastoras, 257 U. S. 27, 34, 42 S. Ct. 20 (66 L. Ed. 112).

The broader claims of complainant's patent, numbered 2, 28, and 29, have been the subject of direct adversary contest between the complainant and H. W. Melling, inventor of defendant's machine, in several other tribunals. During pendency of the Gordon application in the Patent Office, Melling filed his application for patent upon the alleged infringing machine, February 27, 1923. A patent, No. 1,512,995, subsequently issued October 28, 1924, and defendant's machine is fully described therein. An interference was dclared, and the interference proceedings passed successively to decision before the Law Examiner, the Examiner of Interferences, the Examiners in Chief, the Commissioner of Patents, and the Court of Appeals of the District of Columbia. In each of these tribunals priority of invention of the claims in interference was awarded to Gordon and Redlin. Melling thereupon brought action under R. S. § 4915 (35 USCA § 63), in the District Court for the Northern District of Ohio, making the complainant here defendant therein. The issue thus raised was again decided in favor of Gordon and Redlin. 14 F.(2d) 437. In all of these proceedings, and especially in the last mentioned, the question of patentable novelty was directly presented to the attention and consideration of the several tribunals. Cf. Palmer Pneumatic Tire Co. v. Lozier, 90 F. 732, 736 (C. C. A. 6). The prior art was fully considered. The interference was not dissolved for want of patentable novelty, and the bill under R. S. § 4915, was not dismissed for that reason. While all this may go no further than to bind the parties upon the question of priority of invention, unless there is "thorough conviction to the contrary" (Haughey v. Lee, 151 U. S. 282, 285, 14 S. Ct. 331 38 L. Ed. 162; Computing Scale Co. v. Standard Scale Co., 195 F. 508, 515, 516 C. C. A. 6), yet it greatly strengthens the presumption of patentability which arises from the issue of the patent to complainant (Hildreth v. Mastoras, supra, at page 32 of 257 U. S. 42 S. Ct. 20).

A definition of what we conceive to be the true inventive step of Gordon and Redlin, in the light of prior practices and in view of the prior art patents, at once disposes of the question of anticipation and confirms us in the opinion held by all other tribunals considering the question, including the District Court in this action, that invention is disclosed by the patent to complainant. In determining such inventive step, the court must first look to the state of the art. Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U. S. 45, 63, 43 S. Ct. 322 (67 L. Ed. 523). The prior art patents most strongly relied upon, and clearly the most pertinent, are those to Brophy, No. 649,905, May 22, 1900, and Montreuil, No. 701,217, May 27, 1902.

The patent to Montreuil related particularly to...