Hartford-Empire Co. v. Obear-Nester Glass Co., 8658

• Decision Date: 24 February 1930
• Docket Number: No. 8658,8659.,8658
• Citation: 39 F.2d 769
• Parties: HARTFORD-EMPIRE CO. v. OBEAR-NESTER GLASS CO. OBEAR-NESTER GLASS CO. v. HARTFORD-EMPIRE CO.
• Court: U.S. Court of Appeals — Eighth Circuit

39 F.2d 769 (1930)

HARTFORD-EMPIRE CO. v. OBEAR-NESTER GLASS CO.

OBEAR-NESTER GLASS CO. v. HARTFORD-EMPIRE CO.

Nos. 8658, 8659.

Circuit Court of Appeals, Eighth Circuit.

February 24, 1930.

W. J. Belknap, of Detroit, Mich., and A. C. Paul, of Minneapolis, Minn. (John H. Bruninga, of St. Louis, Mo., C. P. Byrnes, of Pittsburgh, Pa., V. M. Dorsey, of Washington, D. C., and R. D. Brown, of Pittsburgh, Pa., on the brief), for Hartford-Empire Company.

E. W. McCallister, of Pittsburgh, Pa. (Green & McCallister, of Pittsburgh, Pa., and Rippey & Kingsland, and Edward E. Longan, all of St. Louis, Mo., on the brief), for Obear-Nester Glass Company.

Before STONE and GARDNER, Circuit Judges, and MILLER, District Judge.

GARDNER, Circuit Judge.

This action, brought by the Hartford-Empire Company, as plaintiff, against the Obear-Nester Glass Company, involves charges of infringement by the defendant of two patents issued to, or owned by, the plaintiff, known in this record as the Steimer patent No. 1,564,909, granted December 8, 1925, and the Peiler patent No. 1,573,742, granted February 16, 1926. The answer put in issue the validity of the patents and denied infringement, pleaded certain prior art patents, and pleaded delay and laches in the prosecution of the patent proceedings in the patent office. Both of the patents declared on in the bill of complaint relate to the automatic feeding of molten glass to a series of forming molds in which the glass charges are shaped to final form. Generally speaking, this apparatus may be described as comprising a receptacle for molten glass having an outlet from which molten glass is delivered in a stream; a device for severing this stream of molten glass and fixing the predetermined intervals, thereby separating the severed glass from the source of supply, and also into a series of molten charges; and mechanical devices for controlling this flow of molten glass. This very general description of a feeding apparatus applies to the various feeders here involved. The actual feeding of the molten glass to the molds, and the mechanical devices employed therefor, are the only things involved in this case. The question as to what happens to the glass after its delivery by and from the feeder is in no way involved in the present controversy.

The lower court held that claims 1 to 10, both inclusive, of the Peiler patent were invalid; that claims 17, 20, 24, 25, and 34 were not infringed; that claims 15, 16, 18, 19, 21, 22, 23, 26, 27, 28, 29, 33, and 36 of the Peiler patent were valid and infringed by the devices made and used by the defendants; that all claims of the Steimer patent were valid and infringed by the devices made and used by the defendant. From this decision both parties have appealed, the plaintiff appealing from the holdings of invalidity and noninfringement, and the defendant appealing from the holdings of validity and infringement.

The lower court prepared and filed a carefully written opinion, which fairly indicates the issues of law and fact involved and presents reasons and authorities in support of its decision which are so satisfactory that we approve and adopt the applicable portions thereof as follows:

"The accused device of defendant, in terms of its simplest description, comprised a furnace for melting the chemical components of glass, or, as it is called, a fining furnace, having a main part for melting and a forehearth, all old in the art; a plunger positioned in this forehearth and operable by an arm carried on an air-moved piston, so as to rise and fall in a vertical movement. This plunger may seat or not seat in the outlet for the glass, provided in the bottom of the forehearth. There is a nut on the piston-rod by which the position of this plunger may be regulated in its up and down movements, even while in operation. The compressed air is pumped through a valve, or valves, both above and below the piston, reciprocally. This pump for compressed air is operated by a chain drive moved by an electric motor.

"Below the glass outlet of the forehearth and out of contact, and, therefore, out of smearing relation with such outlet, or orifice, there is a pair of shear-blades, which in a time relation to the plunger movement is mechanically protracted and opened. These shear-blades, embrace the discharged gob of glass, as it hangs suspended, close and sever the attenuated connecting thread, and the gob falls. The shear-blades are controlled by a valve geared to a cam, on a cam-shaft by which the shear-blades may be operated in timed relation to the plunger, and thus the shear and plunger operations occur regularly and synchronously, or in a definite timed relation.

"It is possible with these valve adjustments to either advance or retard operations of the plunger relative to the operations of the shears, by moving the plunger operations ahead or back, or the identical result may be obtained by making the change with the shear valve, so as to advance or retard the shear operation relative to the plunger operation.

"In passing, I may observe, that some considerable confusion is found in the record, which arises from the fact that counsel, to some extent on both sides, persistently insisted on comparing defendant's accused device with plaintiff's commercial device, instead of comparing the accused device with the teaching of the patents in suit, as disclosed by the specifications and claims, or by the claims as read in the light of the specifications. Obviously, such a comparison is worthless, and is not the test of infringement. It is true, aid in understanding the language of the claims may be afforded by a physical exhibit of a commercial device, but such a device affords no help, either in fact or law, until it has been shown that the physical exhibit of the commercial device has been made in every substantial compliance with the teachings and claims of the patent alleged to be infringed. Experience often discloses that commercial devices, alleged to be protected by a patent, or patents, depart substantially from the patent, or patents, themselves. So, commercial devices are not to be compared with commercial devices, but the accused commercial device is to be compared with the claims of the patent in dispute.

"The Steimer patent, in its simplest terms, has a furnace for melting the chemical constituents of glass, which, generically, is, of course, old in the art, but which concretely is of peculiar construction here, for that it is wedge-shaped and may be tilted so as to pour out its contents constantly, in a fixed volume, and from a fixed head, until the furnace is empty. This fixed head is brought about by a mechanical tilting mechanism working rhythmically with the other mechanisms, but as this part of this furnace is not at all in question here, no further mention need be made of it.

"The molten glass is poured in a constant stream from the tilting lip of the furnace into a chamber, or bowl, equivalent to the forehearth of defendant's accused device. In this chamber there is mounted a plunger, which is raised up by a reciprocating frame, to which, however, the plunger is not rigidly attached. This reciprocating mechanism, or frame, is operated by a cam moving counterclockwise, which slides under the bar of the frame, lifts the frame to the highest points of its adjustment, which point may be changed as desired by the operator, and then by cam movement slides from under the frame and permits it to fall by gravity, carrying down with it the plunger, which, as said, is not rigidly attached to the frame, but is mounted in a circular opening therein, and is kept partly rigid by a spring which presses on the head, or upper end, of the plunger. The plunger must move up with the frame, but it does not necessarily fall with the frame except in so far as it is thrust down by the spring, and its own weight. In operation, however, it ultimately seats, if desired, in the glass outlet in the bottom of the bowl, thus cutting off wholly, or partially, the flow of glass from this opening. Such connecting threads of glass as are left, after the closure of the outlet by seating, or partially seating, the plunger therein, are cut off near the exit of the orifice by jets of flame. There are no shears used by Steimer.

"There is suitable mechanism to vary the time of the rise and fall of the plunger, as compared to the period of flow of the glass through the glass outlet in the bottom of the bowl. This variance of intervals brings about a variance in the form and mass of the gob. These gobs when severed fall into a reciprocating funnel, which, moving around an orbit below, retains the upper opening of the funnel in a fairly constant vertical plane; perhaps in a wholly constant vertical plane, but that is not important, and thus delivers these gobs into any number of parison molds on a revolving table. But, again, this manner of delivery is not in issue here.

"As said, all of the six claims of the Steimer patent are in issue. These claims are so similar in meaning as that one of them may serve as a type of all. In fact, casually, they seem to present an identical single claim merely in varying language, except that claim 6 adds the element of a submerged outlet and an adjusting means, workable during operation, of limiting the movement of the plunger toward the outlet, with a change in the range of movement away from the outlet, but even this thought is expressed in other claims.

"Claim 1, taken as typical, reads thus:

"`Apparatus for separating molten glass into mold charges, including a container for the glass having an outlet, an implement projecting into the glass toward the outlet and mounted for movement towards and from the outlet, means for periodically moving said implement toward and from the outlet and means for adjusting the nearest position of said implement to the outlet without changing its position remote from such outlet.'

"The so-called needle, or...