Landry Mfg. Co. v. CP Rockwell, Inc., 2460.
| Decision Date | 26 November 1930 |
| Docket Number | No. 2460.,2460. |
| Citation | 45 F.2d 89 |
| Parties | LANDRY MFG. CO. v. C. P. ROCKWELL, Inc. |
| Court | U.S. Court of Appeals — First Circuit |
Brayton Morton, of Boston, Mass. (Sherman L. Whipple and Edward O. Proctor, both of Boston, Mass., on the brief), for appellant.
J. Lewis Stackpole, of Boston, Mass. (H. L. Kirkpatrick, of Boston, Mass., on the brief), for appellee.
Before BINGHAM, ANDERSON, and WILSON, Circuit Judges.
Careful consideration of the evidence and arguments in this patent infringement case brings us to the conclusion that the court below was right in finding no infringement. The suit is for infringement of Landry patent, No. 1,227,805, granted May 29, 1917, for a four-wheel brake device on automobiles. It was brought in June, 1927, and tried in late 1929. In over twelve years, with practically an unlimited market for four-wheel brakes on automobiles, the Landry device had been used on only fifty-one. This lack of commercial success goes far to discredit the value of the invention, if not the validity of the patent. Deering v. Winona Harvester Works, 155 U. S. 286, 15 S. Ct. 118, 39 L. Ed. 153; Westinghouse v. Boyden Power Brake Co., 170 U. S. 537, 18 S. Ct. 707, 42 L. Ed. 1136; Ford v. Bancroft (C. C. A.) 98 F. 309; Cushman Paper-Box Mach. Co. v. Goddard (C. C.) 90 F. 727; Kellogg Switchboard & Supply Co. v. Dean (C. C. A.) 182 F. 991; United States Hog-Hoisting Machine Co. v. North Packing & Provision Co., 158 F. 818, 819 (C. C. A. 1).
Examination of the patent confirms the impression thus derived.
Infringement is alleged of claims 2, 3, and 8:
The specifications and drawings show an equalization device, like the old whiffletree, with cables on each side running in grooves over S-shaped levers, and connecting the front and rear brakes. These cables must slip over the S-shaped levers in order to set the four brakes simultaneously. The specifications and drawings disclose nothing but cables to connect the front and rear brakes. The connection referred to in claim 3 can mean only a cable.
The gist of the alleged invention is found in the following extract from the specification:
"The slippage of the cable and lever automatically takes care of the difference in slackness of cable, so that neither brake takes effect until the cables are equally ready."
Claims 2 and 8 call specifically for cables.
But in the defendant's alleged infringing four-wheel brake device there are no cables; stiff rods connect front and rear brakes; there is nothing fairly comparable to the plaintiff's S-shaped levers; there is no slippage.
The file wrapper of plaintiff's patent shows abandonment of the original claim 3, reading:
...
To continue reading
Request your trial
-
National Brass Co. v. Michigan Hardware Co.
...It is an inference against utility from the fact of long non-use, unexplained by want of means or opportunity." In Landry Mfg. Co. v. C. P. Rockwell, Inc., 1 Cir., 45 F.2d 89, the court "This lack of commercial success goes far to discredit the value of the invention, if not the validity of......
-
Gardner v. Buxton
...in the art, but not such an advance as would entitle its claims to anything more than a narrow construction. Cf. Landry Mfg. Co. v. C. P. Rockwell, Inc., 1 Cir., 45 F.2d 89, 90; Evr-Klean Seat Pad Co. v. Firestone Tire & Rubber Co., 8 Cir., 118 F.2d 600, We have heretofore described general......