Tripp Giant Leveller Co. v. Bresnahan

• Decision Date: 09 February 1899
• Docket Number: 321.
• Citation: 92 F. 391
• Parties: TRIPP GIANT LEVELLER CO. v. BRESNAHAN et al.
• Court: U.S. District Court — District of Massachusetts

92 F. 391

TRIPP GIANT LEVELLER CO. v. BRESNAHAN et al.

No. 321.

United States Circuit Court, D. Massachusetts.

February 9, 1899

Causten Browne and Alex. P. Browne, for complainant.

Fish Richardson & Storrow and William Quinby, for defendants.

COLT Circuit Judge.

This is a rehearing of the suit of the Tripp Giant Leveller Company against Bresnahan and others, brought for infringement of the Cutcheon patent, No. 384,893, for improvements in machines for beating out the soles of boots and shoes. On March 15 1894, after hearing upon pleadings and proofs, this court ordered a decree in favor of the complainant, adjudging the first claim of the patent valid, and infringed by the defendants, and referring the cause to a master for an account of profits and damages. The rehearing is upon the original record and additional proofs brought in by supplemental bill filed January 24, 1898. The ground of the rehearing is the alleged discovery, since the original hearing and decree, of two prior patents,-- the Collyer patent, No. 178,598, dated June 13, 1876; and the De Forest patent, No. 270,936, dated January 23, 1883. The supplemental bill prays that the defendants 'may be permitted to interpose the said prior patents to Collyer and De Forest in defense of said original suit, as anticipations of the invention of the said Cutcheon patent, and as material to the true construction of the first claim thereof, and to the question of infringement, with the same force and effect as though said Collyer and De Forest patents had been pleaded in their answer to the bill of complaint in said original cause.'

The Cutcheon patent has been strenuously contested for the past seven years. The validity of the first claim has been four times sustained by this court,--twice on final hearing, once on motion for preliminary injunction, and once on petition for contempt. It has been twice sustained on appeal by the circuit court of appeals,-- in one case on final hearing, and in the other on motion for injunction. 52 F. 148; 8 C.C.A 475, 60 F. 289; 70 F. 982; 19 C.C.A. 237, 72 F. 920. Where a patent has been declared valid after protracted litigation it raises a very strong presumption in its favor, and the new alleged anticipatory matter must clearly convince the court that the former decisions were wrong. If any doubt exists on this point, the former adjudications should stand. In Heaton-Peninsular Button-Fastener Co. v. Elliott Button-Fastener Co., 58 F. 220, 223, Mr. Justice Brown said:

'Assuming it to be a question of doubt whether the changes made in the McGill patent did involve invention, the fact that the patent has already been sustained in two other cases is sufficient of itself to turn the scale in favor of the patent.'

See, also, Vulcanite Co. v. Willis, 1 Flipp. 388, Fed. Cas. No. 5,603; Office Specialty Mfg. Co. v. Winternight & Cornyn Mfg. Co., 67 F. 928;

Manufacturing Co. v. Spalding, 35 F. 67; Paper Co. v. Elsas, 65 F. 1001.

The first claim of the Cutcheon patent is as follows:

'(1) A machine for beating out the soles of boots and shoes, provided with two jacks, two molds, and means, substantially as described, having provision for automatically moving one jack in one direction while the other is being moved in the opposite direction, whereby the sole upon one jack will be under pressure while the other jack will be in a convenient position for the removal of the shoe therefrom.'

The meaning of this claim to my mind is free from doubt. It seems to me to cover this: In a machine of this type, or a direct pressure machine, the combination of two jacks and two molds, and means, substantially as described, or their known equivalents, for automatically moving one jack in one direction while the other jack is being moved in the opposite direction, whereby the sole of the shoe upon one last will be under pressure while the other jack will be in a convenient position for the removal of the shoe therefrom. The Cutcheon machine is limited to two pressing mechanisms working automatically, in which only one pressing mechanism operates at a time to press. In the art of beating out the soles of shoes, this conception was new with Cutcheon. Any machine which makes use of this simple mechanical movement, namely, the simultaneous motions of pressure and clearance by two pressing members in opposite directions, and employs substantially the same or known equivalent means to accomplish the same result, is an infringement. Any machine which uses a different mechanical movement, or which employs substantially different means, or means which were not known equivalents at the date of the patent, does not infringe. The single section machine of Pray, and the so-called 'gang machines,' which were old in the art at the date of the Cutcheon invention, are not anticipations.

The circuit court of appeals, in the case of Bresnahan v. Leveller Co., 19 C.C.A. 237, 241, 72 F. 920, 923, in affirming the decision of this court, said:

'Claim 1 of the patent in suit is a very broad one, and, as we held it valid, it would seem that no method of making the connection between the actuating jacks and the crank shaft, by means well known in the arts at the date of the patent, would evade it.'

The Collyer patent, which is now brought forward as an anticipation of the Cutcheon, is a gang machine. It was for an improvement on a former patent. It describes six sets of beating out mechanisms arranged in a common frame. The improved device substitutes, for the cam which operated upon the...