Winslow Manufacturing Co. v. Peerless Gauge Co.

• Citation: 202 F. Supp. 931
• Decision Date: 17 November 1958
• Docket Number: Civ. A. No. 31944.
• Parties: WINSLOW MANUFACTURING CO., Plaintiff, v. PEERLESS GAUGE CO., Herb Greene, d.b.a. Industrial Sales & Engineering Co., and Micro Design Service, Inc., Defendants.
• Court: U.S. District Court — Northern District of Ohio

202 F. Supp. 931

WINSLOW MANUFACTURING CO., Plaintiff, v. PEERLESS GAUGE CO., Herb Greene, d.b.a. Industrial Sales & Engineering Co., and Micro Design Service, Inc., Defendants.

Civ. A. No. 31944.

United States District Court N. D. Ohio, E. D.

June 11, 1958.

As Modified November 17, 1958.

Albert L. Ely, Jr., Ely, Pearne & Gordon, Howard R. Hirsch, Cleveland, Ohio, for plaintiff.

John F. Oberlin, Portman & Portman, Cleveland, Ohio, for defendant.

McNAMEE, District Judge.

Plaintiff, Winslow Manufacturing Company, is an Ohio corporation and the owner by assignment from Leo Price, its president, of Patent No. 2709854 for "Gauge Mounting." The defendant, Peerless Gauge Company, is a Michigan corporation, with its principal place of business in Detroit, Michigan. The present corporate name of defendant, Micro Design Service, Inc., an Ohio corporation, is The Aeromotive Designers, Inc., and its principal office is in Cleveland, Ohio. The defendant, Greene, is also a resident of Cleveland.

Winslow brought suit against the defendants alleging infringement of Claims 3 and 6 of Patent No. 2709854 and also charged the defendants with engaging in unfair competition. In its original answer Peerless challenged this court's venue on the ground that it was a Michigan corporation and had no regular and established place of business within the jurisdiction of this court. However, on December 13, 1957 Peerless filed a counterclaim for declaratory judgment, praying that the Court declare the claims of the patent in suit to be invalid and that certain claims were not infringed. The filing of such counterclaim waives venue. The evidence is insufficient to establish the claim of unfair competition. Plaintiff contends, however, that defendants' failure to make discovery on this issue is sufficient warrant for reserving the issue of unfair competition for later determination in the event an accounting be ordered by the Court. The record shows that at the outset of this proceeding plaintiff complained of defendants' failure, at the time depositions were taken, to disclose facts bearing upon the issue of unfair competition. However, the Court afforded plaintiff an opportunity to make a full inquiry in respect of this issue at the time of trial and offered to grant such continuance as might be necessary to enable plaintiff fully to develop the facts relevant thereto. Plaintiff, however, submitted no evidence in support of this claim. I hold, therefore, that the claim of unfair competition ought to be and is hereby dismissed.

The defendants, Peerless and Greene, are charged as infringers of Claims 3 and 6 of the patent, and Aeromotive Designers, Inc. is charged with contributory infringement. The subject matter of the patent in suit is described as a "Gauge Mounting" for guillotine gauges which are instruments used in measuring the complex and unsymmetrical curves of turbine parts of jet engines. Guillotine gauges are concededly old and many such gauges have long been in use. They operate on the principle of providing reciprocal curved knife edges that can be slid toward and away from the curved surface of the turbine blades being tested and are designed to measure such blades with minute precision and accuracy.

Plaintiff makes no claim of ownership of an invention of a guillotine gauge but it does claim title to the invention of an adjustable gauge mounting that substantially eliminates the need for building new sets of mountings whenever jet engine parts of different shapes and dimensions are to be measured. The numerous turbine parts of a jet engine are of various shapes and sizes. Each part must be measured with the utmost precision and accuracy. This is accomplished by the use of different guillotine blades and changes in the position of such blades. Prior to plaintiff's invention, reciprocal guillotine gauge blades were placed in box-like mountings securely fastened at the ends of a metal base with the heavy side members and top member of the structure serving as a frame for horizontal slides of the gauge blades. Whenever it became necessary to use gauge blades in different positions and of different sizes and contours, the gauge mounting had to be substantially rebuilt. This resulted in a slow and expensive performance of the work. These undesirable features were eliminated by the patented device. The invention provides a stack of alternate slotted guide blocks and unslotted spacer blocks at each end of a metal base with openings aligned with each other and corresponding openings in the base; closely fitted pins or tension members run through these openings to pull the blocks down on to the base. The effect of the pins and the tension is to unite the stacks of spacer blocks and guide blocks as a solid immobile mass of metal through which gauge blades can be slid with unvarying accuracy. The stacks of spacer blocks and guide blocks can be readily dissembled and the spacer blocks replaced with others of appropriate size. The gauge blocks are interchangeable and reusable. Thus provision is made by the invention for a mounting so constructed as to permit guillotine blades to be mounted thereon in a plurality of positions and arrangements as required for different articles with one base member as a foundation. The invention also permits many of the elements to be mass produced and held in inventory, thus reducing the cost of manufacture and increasing the speed of production.

The application for the patent was filed on August 18, 1954 and the patent issued on June 7, 1955. No references were cited against the patent, which covers six Claims, of which only Claims 3 and 6 are alleged to be infringed. The issues are: (1) Validity; (2) Infringement.

Claim No. 3 reads:

"3. The combination of a base member, an orienting device centrally carried on the base member for orienting an article to be gauged relative to a reference line passing vertically through said base member intermediate of its ends, support means carried by said base member adjacent its opposite ends and embracing said orienting device, each said support means comprising a plurality of guide blocks and spacer blocks alternately arranged and stacked vertically over said base member adjacent a said end, the stack of guide blocks and spacer blocks and said base member having aligned holes in registration with each other, vertically disposed pin members closely fitting in said aligned holes, and securing said blocks in fixed position on said base member relative to said reference line, each said guide block having a horizontally disposed slide-way formed therein for slidability receiving a guillotine gauge blade movable therein toward and away from said reference line, each guide block having a slide thereof disposed vertically and providing a reference plane for comparing the position of the blade carried by the guide blocks with said reference plane, said slides forming said reference planes of said support means being equidistant from said reference line."

Claim No. 6 is as follows:

"6. The combination of a base member, guide blocks and spacer blocks for mounting a plurality of guillotine gauge blades reciprocal in said guide blocks relative to an article to be gauged, said base member having a centrally located primary reference line vertically disposed and at right angles to the horizontal plane of the base member, means for securing an article orienting mechanism to said base member to orient an article relevant to said primary reference line, said base member having openings on opposite sides of, and disposed on secondary reference lines equidistant from, said primary reference line, said guide blocks and spacer blocks being stacked over said base member adjacent its opposite ends, said blocks having openings therethrough axially aligned with each other and with openings in said base member, said guide blocks each having a side disposed away from said primary reference line and positioned equidistantly from said secondary reference lines, said sides forming reference planes for comparison with the positions of said gauge blades in the guide blocks, said reference planes being equidistantly spaced from, and on opposite sides of, said primary reference line."

Defendants contend that Claim No. 6 is invalid on its face by reason of the omission therefrom of any reference to the "vertically disposed pin members closely fitting in said holes." In opposition to this claim of defendants, plaintiff asserts that a complete and detailed description of the invention is set forth in the specifications and that under the third paragraph of Section 112 of the Patent Act, effective July 19, 1952, 35 U.S.C.A. § 112, it is unnecessary to include the omitted language in Claim No. 6. The third paragraph of Section 112 reads:

"An element in a claim for a combination may be expressed as a means or step for performing a specified function without the recital of structure, material, or acts in support thereof, and such claim shall be construed to cover the corresponding structure, material, or acts described in the specification and equivalents thereof. July 19, 1952, c. 950, § 1, 66 Stat. 798."

As noted in the Commentary on the new Patent Act, Title 35, Vol. 1, p. 25:

"It is unquestionable that some measure of greater liberality in the use of functional expressions in combination claims is authorized * * * but the exact limits of the enlargement remain to be determined."

In the Application of Lundberg, 244 F.2d 543, 547, 44 CCPA 909, the court said:

"This `measure of greater liberality,' however, is subject to well defined limitations, for Congress did not intend, by incorporating the third paragraph into section 112, to destroy certain basic precepts of patent law * * * it is still true that `the claim is the measure of the invention.' The requirement in the second paragraph of section 112 that `the specification shall conclude with one or more claims particularly pointing out

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