I.T.S. Rubber Co. v. Panther Rubber Mfg. Co.

• Decision Date: 26 May 1919
• Docket Number: 1383.
• Citation: 260 F. 934
• Parties: I.T.S. RUBBER CO. v. PANTHER RUBBER MFG. CO.
• Court: U.S. Court of Appeals — First Circuit

260 F. 934

I.T.S. RUBBER CO. v. PANTHER RUBBER MFG. CO.

No. 1383.

United States Court of Appeals, First Circuit.

May 26, 1919

Rehearing Denied July 23, 1919.

F. O Richey, of Elyria, Ohio, and Charles A. Brown, of Chicago Ill. (F. A. Tennant, of Boston, Mass., on the brief), for appellant.

Horace Van Everen, of Boston, Mass. (Burton W. Cary, of Boston Mass., on the brief), for appellee.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

BINGHAM Circuit Judge.

The plaintiff, the I.T.S. Rubber Company, is the owner of United States letters patent No. 1,177,833, issued to John G. Tufford, and complains of its infringement by the defendant, the Panther Rubber Manufacturing Company. The patent is for a mold for making rubber heels. There are 12 claims in the patent, but the only one in issue is No. 11, which reads as follows:

'A mold for forming heel lifts including assembled parts, one of which is provided with a molding chamber having the general outline of a heel lift, one wall of the molding chamber being concave and the opposed wall of said chamber having a convex surface coacting with said concave wall, one of said walls being provided with washer supporting devices.'

In the District Court it was held: (1) That the device was not patentably new as it was anticipated by the Nerger mold; (2) that, inasmuch as the claim in issue, by its terms, covered all concavoconvex molds whether the surfaces of the opposing walls were spherical or not, the claim was invalid; (3) that if the claim could be regarded as valid by being limited to the particular structure shown and described in the patent, the defendant's mold did not infringe it; and (4) if it could be regarded as valid without being thus limited, the defendant's mold did infringe.

The specification and claims as originally filed in the Patent Office related, not only to the mold to be employed in the manufacture of rubber heels, but to the method of acting upon the rubber to produce the heels. The claims for the method were later stricken out, and a patent was issued for the mold, but the description of the method was left in the specification.

In the specification the patentee declares:

'The object of the invention is to produce a resilient heel, which will have its attaching face concave throughout its area whereby, when the heel or lift is placed against the flat under surface of a leather or other shoe heel and pressure applied to the resilient heel or lift, a vacuum or suction cup may be formed whereby the heel or lift will be held to the shoe temporarily until the nails can be applied. A further object of the invention is to produce a heel which, when applied to a shoe, will have a flat tread surface, and which may be equipped with fastening devices so located that the heel can be easily trimmed down to a required size.'

He further states that--

'The invention resides in certain novel features of a mold such as is illustrated in the accompanying drawings.'

In the drawings he shows a base plate 1, an intermediate plate 2, and a top plate 3, in which are co-operating instrumentalities whereby the complete heel is produced.

'The base plate 1 is provided in its upper surface with a recess or cavity 4 which is a true section of a sphere, and from the concave surface of which rises pins 5 grouped near the deepest point or center of the recess or cavity and provided intermediate their ends with annular shoulders or supports 6. The intermediate plate or mold member 2 is formed on its under side with a convex projection, indicated at 7, of a curvature which will permit it to fit snugly in the concave recess or chamber 4 in the base plate. The upper face of the intermediate member 2 is provided with a circular depression or recess, indicated at 8, and this concave circular recess or depression aligns axially with the convex projection 7 on the under side of the plate. A central opening 9 is formed through the intermediate plate or mold member, and this opening 9 has an outline corresponding to the usual outline of a shoe heel or lift. The said intermediate plate or mold member is further provided in its upper face with a shallow circular overflow cavity or recess 10, the purpose of which will presently appear. The top plate or mold member 3 is provided on its under side with a convex projection 11 the convex surface of which is a true section of a sphere and an exact complement of the concave chamber or recess 4 and adapted to fit in the concave depression 8 of the intermediate member. Upon the apex or deepest portion of this convex projection 11, I provide ribs 12 which preferably define a space of the same shape as a shoe heel and extend parallel or concentric with the walls of the opening 9. Within the space so defined, I provide intersecting ribs 13, the purpose of which will presently appear.

'In the practice of the invention, the several plates or mold members are superimposed, * * * and to cause them to align with exactness the intermediate plate is provided on both its upper and lower surfaces with studs or lugs 14 adapted to engage openings or sockets 15 and 16 in the top plate and the base plate, respectively.'

In preparing the mold for operation, the specification states:

'The base plate 1 and the intermediate plate 2 are assembled in their proper positions. * * * Small metallic washers, indicated at 18, are slipped over the ends of pins 5 so as to rest upon the shoulders 6 and project beyond the edges of said shoulders either before or after the said plates are assembled, and rubber or composition is then placed in the chamber formed by the cavity 4 and the opening 9 so as to completely fill the said opening. The top plate is then placed in position over the intermediate plate with its convex projection 11 entering the depression 8 and bearing directly upon the plastic mass in the opening 9. The plates are steam heated at all times so as to be maintained at

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