Speaker v. Shaler Co., 5906.
| Decision Date | 02 March 1937 |
| Docket Number | No. 5906.,5906. |
| Citation | 87 F.2d 985 |
| Parties | SPEAKER et al. v. SHALER CO. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Casanave Young, of Milwaukee, Wis., for appellants.
S. L. Wheeler, W. G. Wheeler, and Leverett C. Wheeler, all of Milwaukee, Wis., for appellee.
Before EVANS and SPARKS, Circuit Judges, and LINDLEY, District Judge.
This is an appeal from a decree finding patent to Hanson No. 1,970,698, granted April 21, 1934, assigned to appellee, valid and infringed by appellants; the trade-mark of appellee infringed; and adjudging appellants guilty of unfair competition and of breach of contract of employment. It is insisted that the court erred in each of these respects.
Appellee is now, and has been for a number of years, engaged in the production of so-called "Hot Patches" vulcanizing units and apparatus for repairing rubber products, especially inner tubes of pneumatic tires. It is the owner of various patents having to do with the art, the one in suit being one of the later developments.
The device consists of a shallow pan or platen containing a solidified fuel and having attached to its bottom a patch of rubber to be vulcanized to the tube being repaired. Vulcanization is brought about by the heat resulting from igniting the fuel in the pan and applying pressure upon the latter by a clamp or equivalent force during the vulcanizing period. The patent does not cover the constituency of the fuel.
Vulcanizing units of this character and clamps to furnish the force to apply the same are found in a prolific prior art. Hanson recited that it was his object to provide a clamping mechanism, with means for holding the fuel in contact with the platen during initial combustion and while the pan is being simultaneously held in pressure relation to the rubber to be vulcanized. Others had previously had the same idea and disclosed it to the world. Among them were Low, No. 1,163,629; Naysmith et al., No. 1,225,845; White, No. 1,234,431; Hagen, No. 1,252,106.
Another object, Hanson said, was to provide improved means for centering the platen or pan upon the patch and preventing it from shifting during adjustment of the clamp; but the same idea was disclosed by previous inventors including Low, Naysmith and White, previously mentioned, Heim, No. 1,270,154, and Low, No. 1,315,731.
The crucial thing upon which appellee relies to establish invention is the fact that in his claims Hanson placed two or more V-shaped notches in the walls of the shallow pan and provided his clamp with spider legs, of which a number, equivalent to the number of notches, were elongated so as to extend below the plane of the other arms of the clamp and to engage in the notches, being V-shaped and coming to a dull blade or edge. These extended arms, fitting into the notches, it was claimed, served to keep the solidified fuel from warping while burning and at the same time to avoid any excessive absorption of heat. In other words, Hanson took an old platen, an old patch, an old body of solidified fuel on one side of the platen and an old clamp and utilized them exactly as they had been utilized before in vulcanizing with the one addition; that is, the two notches in the wall and the extended arms of the clamp to fit into the same.
Appellants do not make a platen with notches, nor is there any evidence of a clamp made by it with some of the arms extended below the level of the others, but they make a unit with perforations in and just below the upper edge of the wall, so that when appellee's clamp is used in connection with appellants' platen the walls break down into the holes and the same result is achieved as if notches were present. This clearly constitutes contributory infringement, if the claims are valid.
But we have seen that all elements of the patent are old except the notches and the two extended arms of the clamp. Both perforations and notches were old in the art, although utilized for purposes different from that proposed by Hanson. The skilled worker in the trade, building vulcanizing units such as these, had the benefit of the teachings of the art disclosing all other features. It is said that the new addition was found necessary to keep the fuel from warping. Obviously, any mechanic would know that, to retain the fuel in its place without warping, it would be essential to attach to the arms of the clamps some projecting parts or elongated portions that would go into or touch the fuel or hold it during the vulcanizing. The most obvious...
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