O'LEARY v. Liggett Drug Co.

• Decision Date: 23 July 1945
• Docket Number: 9876,No. 9875,No. 9903.,9875,9903.
• Citation: 150 F.2d 656
• Parties: O'LEARY et al. v. LIGGETT DRUG CO. SAME v. SEARS, ROEBUCK & CO. SAME v. JOHNSTON-SHELTON CO. OF OHIO.
• Court: U.S. Court of Appeals — Sixth Circuit

150 F.2d 656 (1945)

O'LEARY et al. v. LIGGETT DRUG CO.

SAME v. SEARS, ROEBUCK & CO.

SAME v. JOHNSTON-SHELTON CO. OF OHIO.

Nos. 9875, 9876, No. 9903.

Circuit Court of Appeals, Sixth Circuit.

July 23, 1945.

Marston Allen, of Cincinnati, Ohio (Allen & Allen, Marston Allen, and Theodore Greve, all of Cincinnati, Ohio, on the brief), for appellants.

Henry M. Huxley, of Chicago, Ill. (Irvin G. Bieser, of Dayton, Ohio, and Henry M. Huxley and Ralph Munden, both of Chicago, Ill., on the brief), for appellees Liggett Drug Co. and Sears, Roebuck & Co.

Rowan A. Greer, of Dayton, Ohio (Toulmin & Toulmin, H. A. Toulmin, Jr., and Rowan A. Greer, all of Dayton, Ohio, on the brief), for appellee Johnston-Shelton Co.

Before HICKS, SIMONS and MARTIN, Circuit Judges.

MARTIN, Circuit Judge.

On an application, dated November 11, 1927, letters patent, No. 1,971,793, entitled "electrical apparatus," were issued nearly seven years later on August 28, 1934, to William J. O'Leary of Montreal, Quebec, Canada, assignor to a partnership, Walker and Dybvig. The O'Leary apparatus had rough sledding in the United States Patent Office; for the primary examiner rejected the important claims of the application as anticipated in the prior art and as not involving invention. The board of appeals in the patent office, however, reversed the decision of the examiner, except as to one of the appealed claims. In its decision, the board declared: "While the structure and principle of operation of applicant's machine after being disclosed appears obviously quite simple, it is our opinion that the extreme simplicity indicates invention over the relatively complex structures disclosed by the references. We believe invention is involved in this radical simplification of the device in view of the differences in structure involved in accomplishing it. Neither the structure nor the exact principle of operation of applicant's device is anticipated by any of the citations and it is our opinion that invention is involved therein."

In three infringement suits, brought by Lucy B. O'Leary, assignee of the original patent assignees, Walker and Dybvig, and her exclusive licensee, the Rotor Clock Company, against three retailers, namely, the Liggett Drug Company, Sears, Roebuck & Company, and the Johnston-Shelton Co., the issue of patentability of the O'Leary electrical apparatus was presented to the United States District Court for the Southern District of Ohio.

While fifteen claims were contained in the O'Leary Patent, No. 1,971,793, only three claims, 3, 6 and 7, were placed in issue in the infringement suits; and, though retailers were named as defendants, the respective manufacturers of the alleged infringing clocks defended the suits, two of which were tried together and the third of which, that against the Johnston-Shelton Co., was tried separately but substantially on the same record, with additional testimony upon the issue of infringement. After consideration of all the evidence introduced at the trials, embracing oral testimony, both lay and expert, and numerous documents, drawings and physical exhibits; and, after observing, in open court, demonstrations of the operation of various machines and devices, the district court adjudged the patent claims in issue invalid for lack of invention and as anticipated in the prior art. The bills of complaint were dismissed, and from the final decrees of dismissal, Lucy B. O'Leary and the Rotor Clock Company have appealed to this court.

Claim 6 of the patent in suit, which the district court held to be "further invalid" because ambiguous, too indefinite and not supported in the disclosure of the patent, has been abandoned on this appeal, for the reasons stated by appellants that "there is no real difference between claims 6 and 7, and the electrical aspect of this case renders it complicated enough, without injecting unimportant issues." Claim 6, therefore, need not be considered.

The letters patent assert that O'Leary's invention "relates to devices which are adapted to operate at a synchronous speed, and more particularly to a synchronous device of this character having an unwound armature rotatably mounted in an electromagnetic field"; and that "another object of the invention is the provision of a synchronous device of this character which is simple in construction and which is adapted to operate smoothly at a speed which is constant and dependent only on the frequency of the alternating current supplied to the device." The patentee declares that other objects and advantages of his invention will be apparent from the drawings and the descriptions set forth in his specifications.

The claims of the patent, which are now in suit, read as follows:

"3. A bi-polar synchronous motor of the core type comprising an unwound armature of magnetic material, said armature having a series of unwound pole salients; a field structure of magnetic material, said field structure having two unwound portions extending on diametrically opposite sides of said armature and which together embrace the major portion of said armature and each of said field portions having a series of unwound pole salients, the angular spacing of the salients on the rotor about its axis being the same as the angular spacing of the salients of the field about the same axis; and means of producing a reversing magnetic flux in said field structure to give said field portions opposite magnetic polarities whereby all of the salients of one of said field portions are north poles at a given instant and at the same instant all of the salients of the other of said field portions are south poles."

"7. A bi-polar synchronous motor of the core type having an armature provided with a plurality of unwound radial pole arms terminating in pole faces, a field core having a pair of poles each provided with a plurality of inwardly extending projections terminating in pole faces, the centers of the pole faces on the armature having the same angular spacing about the axis of rotation as the angular spacing of the centers of the pole faces of the field magnet about the same axis, and a winding linking the core for producing an alternating magnetic flux throughout the structure, whereby the lines of magnetic force acting on the armature lie in substantially the plane of rotation of the armature when said winding is energized from an alternating source of current."

Illustrative Figure 1 of the O'Leary Patent reveals a horseshoe shaped magnet structure, around the intermediate leg of which is shown a coil for alternating electric current, which is the source of power utilized in the operation of the device. Two poles are thus set up in the magnet or field, shifting with the alternations in the current applied to the coil. Thus, the structure is bi-polar, and the motor is of the core type, inasmuch as the winding is around the core of the structure and not around the poles. Each pole is divided into teeth, or salients, the drawing showing only three salients on one of the poles and three on the other. All three salients of one pole will have the same and not opposite polarity at the same time; and, likewise, all the three salients of the opposite pole will have the same polarity, and not opposite polarity, at the same time, but these salients will be of opposite polarity to those of the pole on the other side of the horseshoe. The rotor, which is an armature composed of laminations of soft iron, displays teeth, which are spaced alike to the salients on the field magnet so that at any instant when the active face of one tooth of the rotor is directly opposite any pole salient of the stator field magnet structure, all the pole salients of the stator will have an armature tooth face opposite them. At any instant, the polarities of the rotor teeth are determined by the polarities of the adjacent stator pole salients. That is to say, when the three salients of the upper pole of the stator are north, the adjacent rotor projections will be south. At that same instant, the three salients of the lower pole of the stator are south and the adjacent rotor pole projections will be north. At the next alternation of the current in the winding, the stator salients have their polarities reversed and, therefore, cause opposite polarities in the adjacent rotor teeth, or projections. The changes in flux flow follow the changes in the magnetizing current in the winding almost instantaneously.

Counsel for appellants stress that, as differentiated from previous motors, the path of magnetic flux goes directly across the O'Leary rotor, instead of moving through the periphery of the rotor from one stator pole to the next; and that the lines of magnetic force pass directly through the armature and, in consequence of the two-polar arrangement, must traverse the armature "not tangentially but directly across it." They say that the O'Leary arrangement forces each rotor tooth, as it moves from one projection to the next projection on any pole, to change its polarity, "because the alternating current applied to the magnet would have, during the interval of movement, changed polarities on all of the adjacent projections."

In his specifications, O'Leary explains: "It will be understood that if the device is brought up to its synchronous speed in any suitable manner the motor will continue to operate at its synchronous speed on the current supplied to the winding 26, the operation of the motor being caused by the attractive force of the pole projections of the electro-magnet to the approaching pole salients of the armature, while the latter is rotating at a synchronous speed. As the pole salients of the armature pass the position shown in Fig. 1 where they are immediately adjacent and radially opposite respective pole projections of the field magnet, or after they have progressed slightly from this position, the total number of lines of force created in the field magnet will be rapidly reducing, due...