Shakespeare Co. v. Perrine Mfg. Co., 10827.

• Decision Date: 01 July 1937
• Docket Number: No. 10827.,10827.
• Parties: SHAKESPEARE CO. v. PERRINE MFG. CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

91 F.2d 199 (1937)

SHAKESPEARE CO. v. PERRINE MFG. CO. et al.^*

No. 10827.

Circuit Court of Appeals, Eighth Circuit.

July 1, 1937.

Otis A. Earl, of Kalamazoo, Mich. (Ralph E. Williamson, of Minneapolis, Minn., Chappell, Earl & Chappell, of Kalamazoo, Mich., and Williamson & Williamson, of Minneapolis, Minn., on the brief), for appellant.

Frank A. Whiteley, of Minneapolis, Minn., for appellees.

Before WOODROUGH, THOMAS, and FARIS, Circuit Judges.

FARIS, Circuit Judge.

This is an action for the alleged infringement of appellant's patent No. 1,903,559, issued to William Shakespeare, Jr., April 11, 1933, upon an application therefor, filed October 1, 1928, and duly assigned to appellant herein. Of the numerous claims therein, only claims 11 and 18 are involved and alleged to be infringed by appellees' accused device. These claims read thus:

"11. The combination with a spring winding fishing reel comprising a spool and a driving spring, of a brake means operatively associated with said spool, means whereby said brake is automatically actuated to effective braking pressure-removing position on the unwinding rotation of said spool, and manually operated means independent of the rotation of said spool for holding said brake in disengaged position.

"18. In a fishing reel, the combination of a support adapted to be attached to a fishing rod, a rotary spring drum for a fish line mounted on said support, a brake normally preventing rotation of said spring drum in the direction to wind the line thereon, means for mounting said brake whereby the braking pressure thereof is reduced when the line is drawn out, and hand-operable means for removing the braking effect of said brake to permit the line to be wound up by said spring drum." (Italics ours.)

As quoted claims indicate the patent is for improvements on spring-winding fishing reels, whereby on rotating the spool, which carries the fishing line, in the unwinding direction (for example by pulling or stripping the line off the spool with the left hand in fly fishing), the brake is automatically reduced in pressure or released, during the rotative movement. In spring-winding reels, the object of the brake is to prevent the reel from winding the line on the spool till such winding is desired by the fisherman, when by a finger lever, the brake is released and the line is wound on to the spool of the reel by the action of a spring. In using the old and ordinary spring-winding reel, having no automatic release actuated by the unwinding rotation of the spool, nice and difficult co-ordination was required between the left hand of the fisherman with which he stripped off line in lengthening his cast, and his right hand with which he manipulated the brake to allow stripping, and also to prevent the spring from winding in the line.

The defenses were the usual ones, namely, first, invalidity of appellant's patent in suit, and, second, that the accused device made and sold by appellees did not infringe claims 11 or 18 of such patent. The trial court found lack of infringement, and so finding did not at all consider, or rule on the validity of appellant's patent. The trial court did not deliver any opinion in the case, but adopted, signed, and filed findings of fact and conclusions of law, alleged, in the brief of appellant and not denied, to have been prepared by counsel for appellees, which is not unusual.

Since the trial court, following what we deem the usual and better practice when lack of infringement develops, did not pass upon the validity of the patent in suit, Irvin v. Buick Motor Co. (C.C.A.) 88 F. (2d) 947, we do not consider the question of validity, because it is not involved here. Among the findings of fact made by the court nisi, there was a finding that the patent in suit is not a basic, or pioneer patent, so a broad range of equivalents was not called for, and therefore the language of claims 11 and 18 must be held to cover and protect only the specific device described in the language of the above claims. No prior art patents were offered on the trial as anticipatory; but the Moore patent No. 602,585, and the Russell patent No. 1,510,904 were offered to show the state of the art and as restricting the scope of claims 11 and 18, within the limits above stated. The prior art in the field of fishing reels is a fairly crowded one; even so-called spring-winding reels are fairly old in the art. Both the Moore Patent and the Russell Patent above-mentioned illustrate examples of spring-winding reels, whereby the line may be retrieved or wound on to the spool by an adaptation of the ordinary coiled, or clock spring, by the simple expedient of operating manually a brake which brake normally retards or prevents the spring from winding the line on to the spool. So, both such spring-winding reels and such brakes are old in the art.

Appellant's patent in suit purports to be for an improvement on the Russell Patent which is owned by appellant. This improvement, as forecast already, consists in a device whereby, upon rotating the spool in the unwinding direction (as in pulling the line off the spool before making a cast in fishing) the pressure of the brake is automatically reduced and released and the line may be pulled from the spool freely. This latter function or result is claimed by appellant in claim 11, thus, "means whereby said brake is automatically actuated to effective braking pressure-removing position on the unwinding rotation of said spool," and in claim 18 (in understandable English) thus: "means for mounting said brake whereby the braking pressure thereof is reduced when the line is drawn out." The two claims on this point seem identical, except that it can be said that the above-quoted language from claim 11 carries the notion not only of a reduction of braking pressure, but of entire cessation or removal thereof. It is true, however, that by the use of a sort of cam or cam-surface on the side of the spool which coacts with a similar cam on the brake element of the appellant's patent in suit, there is at last accomplished, almost an entire removal of braking pressure. In practice, it would seem to make no particular difference whether all, or a sufficient pressure of the brake is removed; provided, enough is removed to permit the line to be easily and efficiently pulled off the spool. So, all this being kept in mind we may, we think, consider only the quoted language from claim 18.

Appellant in its patent in suit did this by an improvement made on the Russell Patent; that is, it reduced and at last removed the pressure of the brake, so as to permit the line to be drawn off the spool by a rotation of the spool in an unwinding...