Lyon v. Boh
| Decision Date | 15 January 1926 |
| Docket Number | No. 37.,37. |
| Citation | 10 F.2d 30 |
| Parties | LYON et al. v. BOH et al. |
| Court | U.S. Court of Appeals — Second Circuit |
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Drury W. Cooper and H. Frank Wiegand, both of New York City, for appellants.
Frederick S. Duncan and John H. Hilliard, both of New York City, for appellees.
Before ROGERS, HOUGH and MANTON, Circuit Judges.
HOUGH, Circuit Judge (after stating the facts as above).
By taking notice of the decision in the Ninth Circuit in Weaver v. American Chain Co., and, remembering that equity acts in præsenti, we find ourselves in a legal atmosphere quite different from that prevailing in the court below, when its decision herein was rendered.
The parties to this suit, as against each other, can no longer anywhere assert that Lyon invented the subject-matter of his patent before Hoover invented that of his; but all controversy about that point is now beside the mark, for the same parties can never anywhere, as against each other, assert that Lyon's invention infringes claim 1 of Hoover. It follows that Hoover, in claim 1, sets forth something that did not and could not anticipate Lyon, something so remote from Lyon that the later invention is under no obligation to pay the slightest tribute to the earlier.
The ruling below in this case substantially restricted Lyon to a device by which both the strength of the front center of the buffer and the adjustability of the rear was derived from the two overlapping springs, so plainly shown in one of the diagrams above taken from Lyon's patent. This holding may be summed up in one sentence from the opinion below: "Lyon supposed that he had an invention made up of two connected springs." The court then in substance directed that Lyon should have no more than what in its opinion Lyon had thought out.
A second basic ruling below arose from a proceeding revealed by Lyon's file wrapper. Lyon and Hoover were copending applicants in the Patent Office, and the Examiner apparently drew a form of words which is now Hoover's claim 1, supra. He then invited Lyon's solicitor to enter upon an interference over this claim, although the Lyon application at the time embodied no such or similar claim.
Lyon declined entering into the interference, and the finding below is in substance that, because he declined to assert a right to something which is now conclusively held to be for a subject-matter wholly different from his own, he restricted himself to a device conposed of overlapping separate springs, and debarred himself from claiming infringement by something made of a hoop of steel.
Defendant's present position may, we think, be thus stated: Hoover's concept was of continuity, of making a buffer out of a hoop, although his form shown above does not express that thought. Lyon had no such concept, he refused even to ask for claim 1 of Hoover; therefore he can never say that any of the claims he did obtain can cover a device embodying continuity of periphery; and the Biflex buffer patent dwells on that thought, and the buffer itself is licensed by Hoover, ergo there...
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