Linville v. Milberger

• Decision Date: 17 August 1929
• Docket Number: No. 73.,73.
• Citation: 34 F.2d 386
• Parties: LINVILLE et al. v. MILBERGER.
• Court: U.S. Court of Appeals — Tenth Circuit

34 F.2d 386 (1929)

LINVILLE et al. v. MILBERGER.

No. 73.

Circuit Court of Appeals, Tenth Circuit.

August 17, 1929.

H. A. Toulmin, of Dayton, Ohio (H. A. Toulmin, Jr., of Dayton, Ohio, and Burns & White, of Kansas City, Mo., on the brief), for appellants.

George P. Fisher, and Cyril A. Soans, both of Chicago, Ill. (Fisher, Clapp, Soans & Pond, of Chicago, Ill., O. D. McCollum, of Kansas City, Mo., and L. Ward Bannister, of Denver, Colo., on the brief), for appellee.

Before LEWIS, COTTERAL, and PHILLIPS, Circuit Judges.

PHILLIPS, Circuit Judge.

This is an appeal from a decree in favor of the defendant in a suit brought by Christie D. Linville, administratrix of the estate of Charlie J. Angell, deceased, and the Ohio Cultivator Company against Emanuel Milberger, for alleged infringement of claims 1, 2, 4, and 5 of patent No. 1,615,499 for a one-way disc plow. Application for this patent was filed May 11, 1926, by Charlie J. Angell. The patent was issued January 25, 1927. The Ohio Cultivator Company is the exclusive licensee of the patent rights. The defendant is local distributor in Russell county, Kan., of a one-way disc plow manufactured by the J. I. Case Threshing Machine Company.

The trial court, in an elaborate opinion reported in 29 F.(2d) 610, found that the Case plow would infringe if the patent were valid, but that the patent was invalid because of anticipation by British patent No. 8886 to McKay, published September 9, 1911, the United States patent No. 853,510, issued to Grant May 14, 1907, and by the prior knowledge and use of the Cox plow.

The claims in suit may be analyzed as follows:

Claim 1. In a disc harrow combined with a general frame: (1) A three-point adjustable support, one support near the forward right-hand end, one near the rear left-hand end, and one at the left side intermediate of the front and rear ends; (2) a series of discs and axial support therefor connected to the frame, and to which the discs are secured, such discs being substantially perpendicular to the horizontal and such axial support at an angle to the line of draft; and (3) a thrust bearing in line with the shaft.

Claim 2 is substantially the same as claim 1.

Claim 4. In a disc plow in combination with a main frame: (1) A shaft; (2) a series of supporting bearings; (3) a thrust bearing in line with the shaft, all carried by the frame; and (4) a series of discs on said shaft, said shaft having an angular cross-section to interlock rotatably with all the discs, the position of such shaft being at an angle to the draft line of the machine.

Claim 5. In a disc plow the combination with a general frame, draft devices, and ground wheels to resist lateral swerving of the machine: (1) A disc shaft mounted in journals connected with the frame at an angle to the line of draft; (2) a series of discs rigidly mounted thereon with the active cultivating segment of each succeeding disc overlapping the segment of the preceding disc and with the forward face of each disc substantially vertical or perpendicular to the surface. In this claim, the function of these parts is said to be, "whereby the whole surface or swath covered by the machine is cultivated and a homogeneous seed bed is produced without chasms due to clods." In semiarid regions, the plow performs a very important and valuable function in the preparation of land for wheat seeding. Claim 5 differs from claims 1 and 2 in that it makes no mention of either a three-point adjustable support or of a thrust bearing in line with the shaft.

Claim 4 differs from claims 1 and 2 and from claim 5 in that it specifically provides for a shaft with an angular cross-section to interlock rotatably with the discs.

The McKay British patent, No. 8886, published September 9, 1911, is for a one-way disc plow. It shows a general frame, ground wheels to resist lateral swerving of the machine, an adjustable draft device, and a series of discs rigidly mounted on a shaft with an angular cross-section, which shaft is mounted in journals connected with the frame at an angle to the line of draft. The cultivating segment of each succeeding disc may be made to overlap by adjustment of the line of draft. The means and manner of such adjustment is also disclosed. The forward face of each disc is substantially vertical or perpendicular to the surface. This patent discloses each of the elements of claim 5 or their mechanical equivalent. These elements, in the McKay patent, are combined in substantially the same way, and would produce substantially the same result by substantially the same means as the combination of elements in claim 5. It follows that claim 5 is anticipated by the McKay patent. Owens Co. v. Twin City Separator Co. (C. C. A. 8) 168 F. 259, 265; Western Willite Co. v. Trinidad Asphalt Mfg. Co. (C. C. A. 8) 16 F.(2d) 446, 450; Tubelt Co. v. Friedman (C. C.) 158 F. 430, 439.

The Grant patent, No. 853,510, issued May 14, 1907, for a one-way disc cultivator, disclosed each of the several elements in claims 1, 2, 4, and 5, or their mechanical equivalents, with the exception of the angular cross-section of the disc shaft as a means of mounting the discs rigidly thereon, in substantially the same combinations as claims 1, 2, 4, and 5.

The Grant patent, although not showing the particular means therefor, contemplated that the discs should be rigidly mounted on the shaft. The specification states: "Below the diagonal frame piece is situated the disk shaft. Upon this and turning with it, are any number of disks."

The use of an angular cross-section or square shaft, as a means of mounting the discs, was old in the art and in common use when Angell devised his plow.

That which would be obvious to a mechanic, acquainted with the art, is not patentable. Gates Iron Works v. Overland Gold Min. Co. (C. C. A. 8) 147 F. 700, 702, 703.

A greater degree of ingenuity or skill than is possessed by an ordinary mechanic, acquainted with the business, must be exercised in designing an improvement in a device, in order to constitute it an invention. Dunbar v. Meyers, 94 U. S. 187, 197 (24 L. Ed. 34); Atlantic Works v. Brady, 107 U. S. 192, 199, 200, 2 S. Ct. 225, 27 L. Ed. 438.

Although all the elements are not found in one patent and therefore no single patent anticipates, yet, if found in different patents in the same art, they may be properly considered on the question of whether invention or mechanical skill was involved. Reflectolyte Co. v. Luminous Unit Co. (C. C. A.) 20 F.(2d) 607, 611; Dilg v. Borgfeldt & Co. (C. C. A. 2) 189 F. 588, 590.

The use of a square disc shaft, old in the art when Angell devised his plow, in the same combination as Grant disclosed, when Grant clearly indicated that the discs in his combination should be rigidly mounted and turn with the shaft, would certainly be apparent to a person skilled in the art, and would not lift the claims of the patent in suit to the plane of invention over the Grant disclosure. Tubelt v. Friedman (C. C.) 158 F. 430, 439.

Counsel for appellants contend that the Grant patent is for a cultivator, and that it would not do the work of a disc plow; that the discs would not cut the soil to a sufficient depth, and that the cultivating segments of the several discs would not overlap. Such overlapping is accomplished by increasing the angle of the shaft from the line of draft. The means for such adjustment are provided and fully described in the specification of the Grant patent. Deeper plowing could be readily accomplished by increasing the size of the discs and the weight of the machine. Cultivation and plowing are analogous; where a disc is employed, they...