National Brake & Elec. Co. v. Christensen

• Decision Date: 05 October 1915
• Docket Number: 2163.
• Citation: 229 F. 564
• Parties: NATIONAL BRAKE & ELECTRIC CO. v. CHRISTENSEN et al.
• Court: U.S. Court of Appeals — Seventh Circuit

229 F. 564

NATIONAL BRAKE & ELECTRIC CO. v. CHRISTENSEN et al.

No. 2163.

United States Court of Appeals, Seventh Circuit.

October 5, 1915

Rehearing Denied January 3, 1916.

Charles A. Brown, of Chicago, Ill., and Thomas B. Kerr and J. Snowden Bell, both of New York City, for appellant.

Joseph B. Cotton, of Duluth, Minn., William R. Rummler, of Chicago Ill., Willet M. Spooner, of Milwaukee, Wis., and James T Watson, of Duluth, Minn., for appellees.

Before BAKER, KOHLSAAT, and MACK, Circuit Judges.

MACK Circuit Judge.

Letters patent No. 621,324 were issued March 21, 1899. Included therein was a sheet of drawings which had formed part of the original application, but had been eliminated therefrom and made part of a separate application after a division. The patentee at once rejected the letters patent, returned them for cancellation, and because of the error there was issued to him letters patent No. 635,280 on October 17, 1899. The latter patent in terms ran for 17 years from its date.

Suit was begun on both patents, alleging an infringement of the invention, and asking that, if the latter should be deemed invalid because not issued in conformity with the reissue statute (R.S. Sec. 4916 (Comp. St. 1913, Sec. 9461)), the attempted cancellation of the former should be deemed a nullity.

The four claims of the patent, all of which are here involved read as follows:

'1. In a combined air pump and electric motor the combination of the frame having a chamber adapted to contain oil, a shaft provided with a crank or eccentric inclosed in said chamber, a cylinder formed with or attached to said frame and opening at one end into said chamber, a piston fitted to work in said cylinder and connected with said crank or eccentric, a motor base attached to said frame and forming a cover for said oil chamber, an armature supported upon said base and connected by gears with said crank shaft, and a gear case attached to said frame and motor base and forming therewith an inclosure for said gears and a receptacle for holding oil, said frame, gear case and motor base completely inclosing and protecting the driving connection of the pump and the crank shaft terminating within said gear case, whereby a stuffing box therefor is dispensed with, substantially as and for the purposes set forth.

'2. In a pump the combination with a frame or case formed or provided with a closed chamber adapted to exclude dirt and to contain oil, a shaft having bearings in said frame or case and provided with a crank or eccentric within said chamber, a cylinder formed with or attached to said frame or case, a piston fitted to work in said cylinder and connected with said crank or eccentric, a shaft mounted on said frame or case and connected by gearing with said crank shaft, and a gear case forming an oil-tight closure over said gearing and the end of the crank shaft with which the driving connection of the pump is made, whereby a stuffing box for said crank shaft is dispensed with, substantially as and for the purposes set forth.

'3. The combination of a frame provided with boxes and formed with an oil chamber or well between said boxes, a shaft supported in said boxes and provided between them with a crank or eccentric, a cylinder attached to said frame and opening at one end into the oil chamber or well therein, a piston fitted in said cylinder and connected with said crank or eccentric, a motor base mounted upon said frame and forming a closure for said chamber, an armature shaft supported in bearings upon said base parallel with said crank shaft, and provided at one end with a pinion which meshes with a gear on the crank shaft, and a case inclosing said pinion and gear forming a receptacle for holding oil, a part of said case over said pinion being detachable, substantially as and for the purposes set forth.

'4. The combination of a frame formed with an oil well or chamber and provided with boxes in communication with said chamber, a shaft supported in said boxes and provided with a crank or eccentric, a cylinder attached to said frame and opening at one end into said oil chamber, a piston fitted in said cylinder and connected with said crank or eccentric, an electric motor mounted upon said frame and comprising a base which covers said oil chamber and is provided on the upper side with oil wells and box housings having detachable caps and with an armature housing and yoke having also a detachable cap, an armature and its shaft supported in said housings parallel with the crank shaft and provided at one end with a pinion which meshes with a gear on said crank shaft, and a gear case forming an oil receptacle and composed of two parts, one attached to the frame and motor base, and the other to and removable with the cap of the adjacent box housing, substantially as and for the purposes set forth.'

As stated in the specifications, the main object of the invention was:

'To provide within small compass or in compact form a combined pump and motor of simple and durable construction that will not be affected by dust, mud, ice, or snow, that will be efficient and economical in operation, and that will require little attention.'

The particular use of the combined pump and motor was, as further stated therein:

'In connection with air brakes for railway cars on which the pump and motor are usually exposed to dust, mud, and snow, and the working parts if unprotected soon become worn and inoperative, besides requiring constant or frequent attention.'

Complainants' and defendant's devices are shown in the following drawings:

COMPLAINANTS'.

(Image Omitted)

The modern electric trolley car requires for efficient operation a brake operated by compressed air. The air pump or compressor maintains a supply of air under heavy pressure, available when the brake is to be applied. An electric motor is advisable, inasmuch as the same electric current that supplies the car can give the motive power to operate the pump. Combining motor and pump is essential for compactness; thoroughly inclosing the parts enables the device to be placed in what is economically the best place, underneath the car, without endangering the construction and operation from the dirt, snow, and ice that gather about it. The problem presented to Christensen was to secure this compactness, efficiency of operation, durability of the parts, and, despite its location, accessibility for repairs. No device then on the market operated satisfactorily. Christensen's structure solved the problem. The evidence clearly establishes that it met an immediate need, and was extensively adopted both in the United States and in other countries; that appellant, having become the purchaser of the works of a corporation, organized by the inventor for the manufacture of the device, through a bankruptcy sale, continued the manufacture under a license from 1905 until December, 1906; that it then canceled the license and began to manufacture the alleged infringing equipment. The case is before us on appeal from a decree of the District Court, holding the patent valid and infringed as to all of the claims.

DEFENDANTS'.

(Image Omitted) 1. It is of no moment which of the two patents be held to be in force. The surrender for cancellation of the one was conditioned upon the grant of a valid legal substitute. If the Commissioner of Patents was without authority to issue the second, then, in our judgment, his action in canceling the first must be deemed legally ineffective. We agree, however, with the learned trial judge that, while Christensen's procedure did not aim at a reissue, the situation is identical with that presented on an application for reissue, and that, without formal application, the later patent might have been designated as a reissue. This is a case of a pure clerical error, not of double patenting. While two documents have been issued, there is but a single grant of one and the same right to the same person.

That the second patent was erroneously granted for a term of 17 years from its date does not nullify it. The law itself prescribes the term of a patent; 17 years is the maximum. It may for several reasons expire at an earlier date. The failure properly to limit the term no more affects the validity in this case than it does in a case where, because of a prior foreign patent having a shorter term, the United States patent by law expires before the end of the 17 years specified in the document.

2. Claims 1, 3, and 4 are for the complete structure; claim 2 is for the pump alone. The several defenses will be considered separately as to these two classes of claims.

(a) As to claims 1, 3, and 4: Concededly there is no direct anticipation. Novelty...