Sirocco Engineering Co. v. B.F. Sturtevant Co.

Decision Date15 December 1914
Docket Number31.
Citation220 F. 137
CourtU.S. Court of Appeals — Second Circuit

The original patent was granted November 27, 1900, on an application filed September 21, 1898. Attached to the description were 11 sheets of drawings containing 28 separate figures. No model was filed. The patent contained 17 claims. The reissue was applied for March 16, 1908, over 7 years from the date of the original, and the patents were reissued in 3 divisions containing 36 claims. Reissue C is not involved in the present controversy as it is conceded that it is not infringed.

The District Court sustained claims 1, 5, 7, 10 and 13 of reissue A and 1, 3, 4, 5, 10 and 14 of reissue B, and allowed the complainant three-fourths of the costs, charges and disbursements. The court ordered a perpetual injunction against the defendant and referred it to a master to take an account of the gains, profits and advantages derived by the defendant by reason of its infringement. Judge Ray's opinion is published in 208 F. 147. His opinion holding that it was not incumbent upon the trial judge to pronounce judgment upon claims which were not relied on by the complainant or discussed by either party is reported in 209 F. 624. The opinion of Judge Holt holding that the Sirocco Company was not a mere licensee of Davidson but was an assignee, and therefore entitled to reissue the patents, is reported in 184 F. 84. The opinion of Judge Noyes sustaining a demurrer to a bill on the reissued patents because of a delay of 7 years in applying for the reissue, but permitting an amendment excusing the delay, is reported in 171 F. 440. The opinion of Judge Hough holding, after the amendment that the reissues were not so clearly void as to justify a decision dismissing the bill on demurrer is reported in 173 F. 378.

William H. Kenyon, of New York City, Benjamin Phillips and Alfred H Hildreth, both of Boston, Mass., and Omri F. Hibbard, of New York City, for appellant.

Frederick P. Fish and Arthur C. Fraser, both of New York City, for appellee.

Before LACOMBE, COXE, and ROGERS, Circuit Judges.

COXE Circuit Judge.

The immense size of the record, the vast number of exhibits and illustrative models, the complex questions of mechanics and the six hundred and eleven pages of argument found in the briefs, where nothing, apparently, is conceded, combine to make this one of the most complex and annoying patent controversies which has come to the attention of the court. We shall endeavor, therefore, to localize the issue, as far as possible, and confine it to those references which approach nearest to the combinations of the Davidson patents. If any one of these shows the Davidson centrifugal fan or pump, it is not necessary to examine numerous other patents that may or may not show it. If, on the other hand, the nearest approach in the prior art does not show Davidson's fan, it is safe to assume that it will not be found in others more remote. In other words, the court should do what the members of the bar are usually reluctant to do viz., limit the issue of patentability to a comparison of the patented structure with the few structures of the prior art which most nearly resemble it.

Section 4886 of the Revised Statutes (Comp. St. 1913, Sec. 9430) provides, inter alia, that one who has invented a new and useful machine not known or used by others in this country and not patented or described in any printed publication in this or any foreign country before his invention or discovery thereof may obtain a patent therefor. Broadly speaking Davidson's fan consists, First: Of a rotary member having a plurality of elongated blades arranged lengthwise in an axial direction so as to inclose within them a relatively large and practically unobstructed intake chamber and receive and carry with them the air as they revolve and discharge it tangentially. Second: It consists of means for mounting the rotary member so as to permit the tangential escape of the air. The first claim of the reissue, which seems to be identical with the first claim of the original patent, sufficiently describes the invention for the purpose now under consideration. It is as follows: '1. A centrifugal fan or pump, comprising a rotary member having numerous elongated blades arranged lengthwise in approximately axial direction, and in substantially drum form, so as to inclose within them a relatively large and practically-unobstructed intake-chamber, and in transverse section arranged, relatively to the axis and direction of rotation, to carry the fluid with them rotatively and discharge it tangentially, and a means for so mounting said rotary member as to permit the tangential escape of the fluid discharged from said blades.'

The other claims are printed in the opinion of the District Court and need not be repeated here.

The claims are alike in using broad general language, and it will be observed that almost every element is limited or defined by some adjective or qualifying phrase. Little that is definite or certain is found in the claims. Take the first claim, previously quoted, as an example. The first element of the centrifugal fan as there stated is a rotary member having numerous elongated blades. Sixty would be numerous; so would 16, and any number between the two. They are to be arranged in an approximately axial direction and in substantially drum form so as to inclose within them a relatively large and practically unobstructed intake-chamber. In transverse section they are arranged, relatively to the axis and direction of rotation.

The other claims use the same and other qualifying adjectives, all designed to bring within their terms a wide range of equivalents.

But such indefinite language enables the defendant to invoke the rule that what infringes if made afterwards, anticipates if made before the alleged invention. Prior to Davidson's contribution to the art the idea of agitating air by a rapidly revolving wheel with a plurality of vanes or paddles attached to its spokes had been embodied in a number of structures. The patents which in our judgment most closely approach the Davidson fan are the British patent to Ser, 1884, and the French patents to Levet and Fournier & Cornu, issued, respectively, in 1890 and 1896.

Ser's patent is chiefly important in that it shows a steel plate or paddle wheel with a large number of blades. The drawing shows 32 inclined forwardly in the direction of their rotation. In the number, width and forward slant of the blades mounted in the usual snailshaped casing, the Davidson idea is found, although embodied in a somewhat different machine.

The French patent to Levet was issued April 25, 1890, for a new fan having guides for the streams of fluid. The fan is inclosed in a snail-like shell having interior conduits for dividing the air and discharging it into the outlet tube. In the inlet of the case are guides for directing the entrance of the air. There are 48 blades in the Levet fan, all of them curved, in the direction of the rotation and alternating in width. The intake chamber is large, being about three-quarters of the total diameter of the wheel. The direction of the curvature of the blades varies according to the speed of the wheel, the inventor expressly stating that the blades are curved, 'so that the component shall be in proportion to the speed of the wheel and of the air. ' It is true that Levet's is a double inlet fan, but it could require no inventive genius to split it in two or use one side only. In a similar way, it would require no inventive genius to put two Davidson fans back to back and use them as a double fan.

We incline to the opinion that the best single reference cited by the defendant is the Fournier & Cornu patent No. 254,064 dated February 18, 1896. In this conclusion we, apparently, agree with the complainant, for it was this patent which induced the complainant to dismiss the suit on the original Davidson patent No. 662,395 and petition for a reissue in three divisions. In the amended bill the complainant avers:

'That your orator and said patentee were advised by their counsel that said foreign patent, considered in connection with the previous citations, constituted a prior art approaching so closely to the wording of certain of the claims of said letters patent as to render them void or of doubtful validity, and that said Letters patent were too broadly worded.'

It further alleges that for these reasons the patent was reissued in three divisions, as previously stated. As this patent is commendably short and concise in its statements, it is here given in full:

'Specification annexed to the patent of fifteen years applied for the 18th of February, 1896, by Fournier & Cornu, represented by Marillier & Robelet, 42 Boulevard Bonne-Nouvelle, Paris, and which was granted to them by decree of the Minister of Commerce, Industry, Post and Telegraph on the 30th of May, 1896, for 'new system of ventilator called the rational.'
'This application for a patent has for its object to guarantee us the temporary exclusive ownership, in accordance with the law, of a new system of

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