Kamborian v. United Shoe Machinery Corporation

• Citation: 73 F. Supp. 548
• Decision Date: 06 October 1947
• Docket Number: Civ. No. 2751.
• Parties: KAMBORIAN et al. v. UNITED SHOE MACHINERY CORPORATION.
• Court: U.S. District Court — District of Massachusetts

73 F. Supp. 548

KAMBORIAN et al. v. UNITED SHOE MACHINERY CORPORATION.

Civ. No. 2751.

District Court, D. Massachusetts.

October 6, 1947.

Charles S. Grover, Richard F. Walker and Roberts, Cushman & Grover, all of Boston, Mass., for plaintiff.

Edgar H. Kent, Fish, Richardson & Neave, of Boston, Mass. (Stephen H. Philbin, of New York City, of counsel), for defendant.

SWEENEY, District Judge.

This case comes back to this Court on remand from the Circuit Court of Appeals. The purpose of the remand was encompassed in the order of the Circuit Court of Appeals for this Court to take further evidence, so that an explicit finding might be made upon the question whether Kamborian's helical ribs do what he said they do in his patent application. See Kamborian et al. v. United Shoe Machinery Corporation, D.C., 62 F.Supp. 903, and United Shoe Machinery Corporation v. Kamborian et al., 1 Cir., 160 F.2d 461. Subsidiary to this main question, the Circuit Court of Appeals has posed the following questions, which will be answered in this opinion seriatim: "Is there an upward pull upon the material when the machine is operated as described by Kamborian? Does it come from the helical ribs? Is there `positive' gripping action which exerts an upward pull? Is there an upward pull by crimping as distinguished from a positive grip? Is the pull sufficient to do what is necessary to last the material?"

At the hearing on remand, oral evidence was introduced by both parties, and certain operations of the Kamborian model machine (Plaintiff's Exhibit 14) and commercial cement lasting machine (Plaintiff's Exhibit 19) were made. In addition, quite a few exhibits were introduced, these being the products of the workings of both the model and the commercial machines.

In the previous opinion of this Court, the finding was made that "* * * while there is direct engagement of the cloth between the ribs there may be some such upward pull, but the pull, if any, on the material is not sufficient to completely tension the material to conform to the contour of the wooden last. Such additional tension as may be needed is provided by the operator who exerts pressure by pushing the last inwardly towards the body of the machine, or by presenting the work at an angle to the rotating gripping rolls." That finding is now completely abandoned as a result of the hearing on remand, and a finding governing the situation will appear later in this opinion.

At the hearing, several shoes and blocks of wood with leather attached thereto were run through the machines by a witness produced by the plaintiff. In addition, blocks with leather attached to the sides were run through the machine without human hands touching them. These blocks were channeled in a groove, the front part of which was made of glass, so that the action of the block as it went through the rolls might be observed. After the material had been inserted between the two cylinders there was no further manipulation of the block, but as its progress through the machine unaided in any respect was observed definite upward pull was noted.

Much of the defendant's argument in the previous hearings in this case was addressed to the point that the plaintiff had abandoned the edge rolls described in his patent, and by such abandonment permitted the operator to push back on the shoe while it was positively engaged between the two rolls, thus providing for tension. This matter was mentioned in my finding in the previous opinion quoted above, which is now abandoned.

Several shoes and blocks of wood were lasted at the hearing on remand with the work bearing against the edge guide roll at all times. The lasting was done satisfactorily with the edge guide rolls in place. As further evidence that the push back by the operator was not...