Mast, Foos & Co. v. Dempster Mill Mfg. Co., 799.

• Decision Date: 02 August 1897
• Docket Number: 799.
• Citation: 82 F. 327
• Parties: MAST, FOOS & CO. v. DEMPSTER MILL MANUF'G CO. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

82 F. 327

MAST, FOOS & CO. v. DEMPSTER MILL MANUF'G CO. ^[1]

No. 799.

United States Court of Appeals, Eighth Circuit.

August 2, 1897

This is an appeal from a decree which dismissed a bill brought by Mast, Foos & Co., a corporation, for the infringement by the appellee, the Dempster Mill Manufacturing Company, a corporation, of letters patent No. 433,531, issued on August 5, 1890, to the appellant, as the assignee of Samuel W Martin, for improvements in windmills, 71 F. 701. Here are copies of the drawings and specification of this patent:

(Image Omitted) 'United States Patent Office.

'Samuel W. Martin, of Springfield, Ohio, Assignor to the Mast, Foos & Company, of Same Place.

'Windmill.

'Specification Forming Part of Letters Patent No. 433,531, Dated August 5, 1890.

'Application Filed May 2, 1890. Serial No. 350,821. (No Model.)

'To All Whom It May Concern: Be it known, that I, Samuel W. Martin, a citizen of the United States, residing at Springfield, in the county of Clark and state of Ohio, have invented certain new and useful improvements in windmills, of which the following is a specification, reference being had therein to the accompanying drawings: This invention relates to improvements in windmills. The invention consists, essentially, of an improved back-gear organization involving an external-toothed pinion, and an internal-toothed spur-gear, the pinion being mounted on the wheel-shaft, and the gear having formed on or connected with it the wrist-pin, to which the operating-pitman is attached, whereby the speed of the main shaft as applied to the wrist-pin and pitman is reduced, and whereby, also, all pounding and lost motion is prevented as the pitman-connection passes over the center and changes from a pushing to a pulling motion. This object is accomplished by the fact that a plurality of the pinion-teeth are always engaged with the internal spur-gear, resulting in giving a perfectly uniform and smooth and noiseless reciprocating motion to the actuating-rod, thereby prolonging the life of the machine by saving it from constant jarring and preventing wear and tear. In the accompanying drawing, forming a part of this specification, and on which like reference letters indicate corresponding parts, the figure represents a side elevation of my improved organization, with some of the parts in section, showing the same applied to any approved type of windmill structure. The letter A designates a cast frame or structure carried by the upper part of the turntable of a windmill of which B refers to one of the bearing-blocks, and C to an arm, to which is pivoted the pitman, D. This pitman is triangular and of the type on the market in windmills manufactured by my assignees of this invention. To one extremity of this pitman is attached a pitman-bar, E, the other end of which bar is fitted upon a wrist-pin, F, carried by the internal gear, G. This gear may be of any approved type, so long as it is provided with internal teeth. In the present case it is constructed with a disk, H, having a hub, I, and a rim, J. It is mounted upon a stud or shaft, K, carried by the bearing-block, b. On the main shaft, L, is placed an external-toothed pinion, M. It will be observed from the drawing that the pinion is within the circumference of the rim, J, and is intermeshed with the teeth of said rim. It will also be noticed that a plurality-three in the present instance-- of the teeth of the pinion are engaged with the teeth of the gear-rim. This is due to the fact that the rim encircles the pinion. Thus, it will be seen that when the main shaft is rotated with its pinion the internal gear-wheel, G, will also be rotated, though at a reduced speed, and, as several of the teeth of the pinion are always engaged with the teeth of the rim, no lost motion will occur as the wrist-pin passes the center, and the strains are changed from a pull to a push upon the pitman-bar, E. The actuating-rod, O, connects with the pitman, D, in any approved manner, at P, and extends down from the tower to the appliances to be operated; say a pump. The freedom of the organization from lost motion and sudden jerks as the wrist-pin passes over the center renders the operation of the pump smooth and regular. This increases the effectiveness of the pump, and prevents undue wear and tear. The invention is in practical operation, and on the market in considerable numbers, and the facts here stated with regard to its operation are such as have been ascertained from commercial experience with it.

'Having thus fully described my invention, what I claim as new, and desire to secure by letters patent, is: (1) The combination, with a windmill-driving shaft and a pinion thereon, of an internal-toothed spur-wheel mounted adjacent to the said shaft, and meshing with said pinion, a pitman connected with the spur-wheel, and an actuating-rod connected with the pitman. (2) The combination, with a windmill-driving shaft, and a pinion mounted thereon, of an internal-toothed spur-wheel, mounted adjacent to said shaft, and meshing with said pinion, a pitman-bar connected to the spur-wheel, a pivoted pitman connected to the said bar, and an actuating-rod connected to said pitman. (3) The combination, with the upper part of a windmill turntable, the main shaft mounted thereon, and a pitman pivoted thereto, an actuating-rod carried by the pitman, and a pinion mounted on said shaft, of a shaft or stud adjacent to the main shaft, an internal spur-gear mounted on said shaft or stud adjacent to the main shaft, an internal spur-gear mounted on said shaft or stud and having a wrist-pin, and a pitman-bar connected to the wrist-pin and to said pitman.

'In testimony whereof I affix my signature in presence of two witnesses.

'Samuel W. Martin.

'Witnesses:

'Warren Hull, 'H. W. Plaisted.'

The first claim of this patent is the only one that is now said to be infringed by the appellee. The infringing device may be described from Martin's drawings. Discard Martin's triangular pitman, D, carry his pump-rod, O, to the left until it stands in the same vertical plane as the shaft, K, straighten the pitman-bar, E, swing its right end downward, and pivot it directly to the pump-rod, O, and we have the device used by the appellee. The defenses were that there was no novelty or utility in the combination of the appellant, and that the appellee did not infringe it. In support of these defenses the mill company introduced in evidence letters patent No. 182,394, dated September 19, 1876, to Edward Williams, for a new and improved windmill which shows the pitman for driving the pump-rod actuated by two eccentric external-toothed gear-wheels, so that the wind-wheel will have an increased leverage, and on the up-stroke of the pump-rod will draw it slowly, while it will return it more quickly upon the down-stroke. This was the only patent on a windmill offered as anticipating Martin's invention. A number of other letters patent were introduced, from which it appears that internal-toothed gearing had been used, long before Martin made his invention, to drive pinions which actuated wood-saws, cutters of harvesting and mowing machines, and like parts of similar machinery. One witness testified that a windmill whose pump-rod was driven by an external-toothed pitman and an internal-toothed spur-gear was constructed and operated by the Spencer Manufacturing Company at Blue Springs, Neb., about November 1, 1889, but convincing evidence was produced by the appellant that Martin's first mill was constructed and sold as early as July, 1889.

H. A. Toulmin, for appellant.

H. W. Pennock and L. L. Morrison, for appellee.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge, after stating the case as above, .

The court below dismissed the bill in this case upon the ground that the statement contained in the letters patent upon which this suit is based, that 'the invention is in practical operation, and on the market in considerable numbers, and the facts here stated with regard to its operation are such as have been ascertained from commercial experience with it,' proved that the appellant had abandoned the invention. The acts of congress provide that one who has invented and discovered a new and useful improvement 'not in public use or on sale for more than two years prior to his application unless the same is proved to have been abandoned, may, upon payment of the fees required by law, and other due proceedings had, obtain a patent therefor.' 16 Stat. c. 230, Sec. 24 (Rev.St. Sec. 4886). The issue of the patent is, therefore, prima facie evidence that the invention it protects was not in public use or on sale for more than two years prior to the filing of the application on which it is based, and that it was not proved to be abandoned. The utmost effect of the recital in the patent which we have quoted could not carry it farther than to show that within two years prior to the application the improvements described in it had been used and sold. But the use and sale of the invention within two years before the application for the patent was filed was not sufficient to establish an abandonment of the invention, because the act of congress expressly authorizes the issue of a patent notwithstanding such use and sale. An abandonment may undoubtedly be proved within two years prior to the filing of the application, but it ought not to be presumed, and it should be established by convincing evidence of the intention of the owner of the invention to dedicate it to the public. An abandonment is a dedication, and, like any other dedication, it should be clearly proved. It rests upon the intention of the inventor, If he expressly declares, or by his acts clearly shows, his intention to...