JF Rowley Co. v. Rowley

• Decision Date: 11 April 1930
• Docket Number: 5286.,No. 5285,5285
• Citation: 39 F.2d 865
• Parties: J. F. ROWLEY CO. v. ROWLEY.
• Court: U.S. Court of Appeals — Sixth Circuit

39 F.2d 865 (1930)

J. F. ROWLEY CO. v. ROWLEY.

Nos. 5285, 5286.

Circuit Court of Appeals, Sixth Circuit.

April 11, 1930.

Albert H. Bates and Albert R. Teare, both of Cleveland, Ohio (Bates, Golrick & Teare and Sam B. Fitzsimmons, all of Cleveland, Ohio, on the brief), for appellant.

Edward A. Lawrence, of Pittsburgh, Pa. (Harry F. Stambaugh, of Pittsburgh, Pa., and Bulkley, Hauxhurst, Jamison & Sharp, of Cleveland, Ohio, on the brief), for appellee.

Before MOORMAN, HICKS, and HICKENLOOPER, Circuit Judges.

HICKS, Circuit Judge.

Appeal (1) from a decree dismissing the bill in No. 5285 on the ground that patents No. 1,090,881, March 24, 1914, and No. 1,322,059, November 18, 1919, both to J. F. Rowley involving ankle joints in artificial limbs are invalid for lack of invention; and (2) appeal from a decree dismissing the bill in 5286 on the ground that there was no threat of or reason to apprehend infringement of patents No. 1,368,575, February 15, 1920, and No. 1,375,860, April 26, 1921, both to J. F. Rowley known as the suspender patents.

Patent No. 1,090,881. Its principal object was to eliminate the "squeak" incident to the use of artificial ankle joints. Claim No. 1 is printed.¹ The claims of the patent cover substantially nothing new except the ball-bearing element (Frees No. 742,853, November 3, 1903; also Fig. 3 and reading matter on page 21 "True Artificial Limbs," a catalog published by the True Artificial Limbs Company, Niagara Falls, New York, 1913.) It was old in artificial ankle joints to use an outer tubular member into which was fitted a shaft, but in such device the alternating rocking movement of the outer member, sometimes called the barrel, and the shaft caused friction, unless the parts were kept lubricated, between the surface of the shaft and the inside surface of the barrel with the accompanying "squeak" peculiar to metal surfaces wearing upon each other. The ball bearings introduced by J. F. Rowley and located in races upon the outer surface of the shaft (patent No. 1,090,881), reduced the area of the surfaces brought into contact with each other and converted sliding friction into rolling friction, and thus in a large measure eliminated the squeak. But ball bearings are old. They are in general use, and it is commonly understood that they reduce friction and the attendant noises, and it is obvious that their use here arose out of nothing more than the thought of a mechanic. It was not invention. It was simply the adaptation of an old device to the same use in a different structure. Ball bearings had already been used in a limited way in ankle joints in Fenner, No. 667,511, February 5, 1901. They accomplish no other purpose in Rowley's ankle joint than they would accomplish in any other relationship. Standard Caster & Wheel Co. v. Caster Socket Co., 113 F. 162, 164 (C. C. A. 6); Stearns & Co. v. Russell, 85 F. 218, 227 (C. C. A. 6); L. Schreiber & Sons Co. v. Grimm, 72 F. 671, 674 (C. C. A. 6); City of St. Louis v. Prendergast, 29 F.(2d) 188, 192 (C. C. A. 8). See, also, Huebner-Toledo Breweries Co. v. Matthews Grav. Carrier Co., 253 F. 435, 445 (C. C. A. 6).

Nor is there invention in extending the barrel or shortening the shaft of plaintiff's ball-bearing ankle joint device to provide pockets for lubricants between the end of the shaft and the head of the barrel, and thus facilitate the passage of such lubricants to the bearing surfaces. Such a receptacle evidences nothing beyond the thought of a mechanic, and is a feature old in the ball-bearing art.

Patent No. 1,322,059. In patent No. 1,090,881, the tubular outer member (barrel) and its connecting shank were of integral construction. The object of No. 1,322,059 was to provide an improvement thereon by using a commercial steel tube for the barrel and by forming the shank separately out of soft steel and fashioning on its end a fork or bow with holes drilled or punched through the bow ends, clevis-like, at right angles with the shank; by heating and expanding this device and forcing the tube or barrel through the rings or holes until they were equi-distant from the ends of the tube; and by allowing the rings to cool and shrink, tire fashion, upon the barrel to form the permanent union. This construction was no doubt economical and convenient, and the prongs of the fork may have acted somewhat as braces, but we fail to discover any inventive conception in it. It had no novel elements either separately or in combination. It was old in practice, and was no more than might reasonably be expected of any skilled machinist, blacksmith, or metal worker. Concrete App. Co. v. Gomery, 269 U. S. 177, 185, 46 S. Ct. 42, 70 L. Ed. 222; Condit v. Jackson Corset Co., 35 F.(2d) 4, 6 (C. C. A. 6), and cases there cited. Such device substantially so fashioned, except that the rings were not united to the tube, but rotated...