H. Brinton Co. v. Mishcon
| Decision Date | 06 December 1937 |
| Docket Number | No. 70.,70. |
| Citation | 93 F.2d 445 |
| Parties | H. BRINTON CO. et al. v. MISHCON. |
| Court | U.S. Court of Appeals — Second Circuit |
Morris Kirschstein, of New York City, for appellants.
Emanuel R. Posnack, of New York City (Samuel E. Darby, Jr., of New York City, of counsel), for appellee.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
The plaintiffs have appealed from a final decree of the District Court for the Eastern District of New York dismissing the complaint in a suit on two patents upon the ground that infringement of neither patent was proved.
The two patents in suit, No. 1,989,617, granted to Harry S. Horrocks January 29, 1935, on an application filed July 6, 1932, and No. 1,970,238, granted to Raymond Kretser on an application filed December 26, 1933, cover attachments for circular knitting machines. The H. Brinton Company is the assignee of the Horrocks patent and the exclusive licensee of the Kretser. Both attachments are designed for use in knitting machines using needles which are all alike.
The Horrocks Patent.
The Horrocks patent relates to a construction by which the identical needles in the cylinder are selectively raised and lowered in such a manner as to make what is known as inlay knitted fabric. Such fabric was not itself new, but had before been made on circular knitting machines equipped with needles having butts of varying lengths and on rib machines, though the fabric of the latter was quite different. The limitations inherent in the use of needles having butts of different lengths made it impossible to change the inlay patterns except by varying the width of the strips which were always vertical. Even this required placing the needles in new positions, which took time and care. The Horrocks patent, however, disclosed a way to inlay a design in other directions than vertical and to make more complicated patterns than formerly.
Before going further, it is necessary to explain the action of the old circular open top knitting machine briefly. The patents on that having expired, it is, of course, free to all. Needles are placed in a cylinder having a cam ring fitted with the needed cams for moving the needles up and down as desired. This is done either by having the cylinder revolve while the cam ring upon which the needle butts act is stationary or by having the cylinder remain at rest while the cam ring revolves. The part of a needle above the butt is called the shank which ends in a latched hook. Being here concerned only with identical needle machines, we will assume that all the needles in the cylinder are exactly alike. The yarn is fed to the machine at a predetermined level, and relative to the yarn feed level the needles are made by cam action to assume three distinctive positions in knitting. It is convenient to take as the first what is called the welt position. In that, a needle has dropped down farthest away from the yarn feed, and in doing so has knitted off, making itself ready to knit another loop. From there it is pushed up. When it has gone up far enough to take yarn again, but not far enough to have the latch cleared by the strand of yarn still in the loop, it is said to be in tuck position. If brought down from there without going higher, yarn would be taken, but no knitting would be done, since there could be no casting off. But if, as happens in knitting, the needle continues to rise above the tuck position, the latch is fully opened by the loop in the hook coming down below it, so that, as the needle is brought down to tuck position, it takes yarn which, as the needle still drops to welt position, is drawn through the old loop and that is cast off, completing the knitting operation. As that occurs over and over again, the fabric is knitted in its simplest or plain form. The needle action is supplemented by thin flat metal pieces called sinkers which move in and out horizontally between the needles to hold the fabric down with reference to the needles, but that action need not for present purposes be further explained.
Inlay fabric has strands of yarn, usually and for better contrast always, of another color which is not itself knitted but is laid into the knitted fabric in such a way that wanted designs can be made with a wide variety of materials, even with those whose tensile strength, irregular diameter, or composition make them unsuitable for knitting. Thus among other materials cellophane may be used for inlays and may be inlaid in loops or not as wanted just as anything suitable may be inlaid. Whatever is inlaid may be pulled out without spoiling the knitted part of the fabric, since it is not at any point knitted in.
When inlay fabric is to be made, the knitting needles are so moved up and down that part of them are raised no higher than the tuck position where they take the inlay yarn from a separate feed and bring it down to sinker level. Other needles, and the inlay needles at later stages if desired, move up above the tuck to latch-clearing or knitting position and when they come down take knitting yarn from its feed which is knitted about the inlay yarn. Before Horrocks, the needles that did the inlay had short butts while those which knitted had longer ones and thus the cam acting, the same at the butts, varied the height to which the tops of the needles would go by the amount the butt lengths varied.
For many years before Horrocks, so-called design, or pattern, wheels had been in use in circular knitting machines. They were mounted at an oblique angle touching the needle cylinder in such a way that radial slots in the design wheel would engage the needle butts somewhat as cog wheels engage as they turn in contact with each other. These radial slots were either open, in which event the needle butt would go down into the slot and not be moved up, or would be filled more or less by a jack, in which event the needle entering such a slot would be moved up as high as the jack had been set to move it. So were knitted stitches made to vary in the prior art as wanted within the variation limits of the pattern wheels. Horrock's attachment for the old circular knitting machine used a design wheel to select the needles that would be pushed up only to the tuck position where they would take inlay yarn and not knit it. What he really did was to make needle selectivity dependent in this respect not upon cams acting upon needles of differing butt lengths as before but to make it dependent upon the arrangement of the jacks in the pattern wheel slots acting upon needles always the same. This gave the advantage of greater scope of variation with its resultant increase in the variety of fabric designs that could be made.
He used an approach cam which raised the needles in the cylinder to the level which would permit them to be acted upon selectively by the pattern wheel, having discovered that the changes in the old construction required were the raising of the needle cylinder, which also raised the sinker level, and the placing of the pattern wheel at an angle of 40 degrees. He testified: ...
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