Shawkee Mfg. Co. v. Hartford-Empire Co., No. 5203.

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: BUFFINGTON, WOOLLEY, and DAVIS, Circuit
• Citation: 68 F.2d 726
• Parties: SHAWKEE MFG. CO. et al. v. HARTFORD-EMPIRE CO.
• Docket Number: No. 5203.
• Decision Date: 21 February 1934

68 F.2d 726 (1934)

SHAWKEE MFG. CO. et al.
v.
HARTFORD-EMPIRE CO.

No. 5203.

Circuit Court of Appeals, Third Circuit.

January 11, 1934.

Rehearing Denied February 21, 1934.

Jo. Baily Brown, of Pittsburgh, Pa., Otto R. Barnett, of Chicago, Ill., and William B. Jaspert, of Pittsburgh, Pa., for appellants.

Byrnes, Stebbins, Parmelee & Blenko, of Pittsburgh, Pa. (Clarence P. Byrnes, of Pittsburgh, Pa., Thomas G. Haight, of Jersey City, N. J., Vernon M. Dorsey, of New York City, William J. Belknap, of Detroit, Mich., and Robson D. Brown, of Pittsburgh, Pa., of counsel), for appellee.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

BUFFINGTON, Circuit Judge.

The court below having granted a preliminary injunction enjoining patent infringement, defendants appealed. On hearing by this court, it was agreed the case might be disposed of as if on final bearing.

The patent involved was considered by this court in Hartford-Empire Co. v. Hazel-Atlas Glass Co., reported in 59 F.(2d) 399, 413. Reference thereto obviates needless restatement of the art. It suffices to say the patent in question (Peiler's patent, No. 1,655,391) was there held valid, and in passing on the question of infringement the court said: "The pertinent element of apparatus, claim 8, is `means for so moving the implement downwardly during the issue of each mold charge, and upwardly after the issue of said charge, that each charge will be produced and selectively shaped in suspension by the movement of the implement.' True, Peiler showed a particular mechanical construction for so doing, but the Patent Office, in granting this claim, did not restrict it to the particular mechanical connecting Peiler showed, but protected that element in a broader and more generic character, to wit, `means for moving,' etc., and thereby meant to include any mechanical equivalent of the particular means Peiler showed." Accordingly, we held in the Hartford-Empire-Hazel-Atlas Case that the claims of the Peiler patent there in suit were broad enough to cover the Hazel-Atlas device. For the same reasons we hold that the claims of the patent here in suit are broad enough to cover the defendants' device.

Briefly stated, the functional invention of that patent was the swelling of a gob in suspension to desired shape and shearing such shaped gob in suspension. The patentee showed it could be done by the use of what he called an "impeller," saying: "The various characteristics of the impeller action may...