WR Co. v. Sova, 7883.

• Decision Date: 18 September 1939
• Docket Number: No. 7883.,7883.
• Citation: 106 F.2d 478
• Parties: W-R CO. v. SOVA.
• Court: U.S. Court of Appeals — Sixth Circuit

106 F.2d 478 (1939)

W-R CO. v. SOVA.

No. 7883.

Circuit Court of Appeals, Sixth Circuit.

September 18, 1939.

Arthur W. Dickey, of Detroit, Mich. (Harness, Dickey, Pierce & Hann, of Detroit, Mich., on the brief), for appellant.

Arthur Raisch, of Detroit, Mich. (Barnes, Kisselle, Laughlin & Raisch, Arthur Raisch, and Stuart C. Barnes, all of Detroit, Mich., on the brief), for appellee.

Before HICKS, SIMONS, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

This is an appeal by appellant, the W-R Company, from a decree of the District Court restraining it from the alleged infringement of appellee's mechanical patent number 1,571,813, for which he applied April 30, 1925, and which was issued February 2, 1926. The patent in suit relates to a fixture which appellee devised and attached to a piston ring grinding machine. His appliance removed the burr or wire edge from the periphery of the ring while being ground and with the same machine.

It is claimed by appellant that appellee had dedicated his appliance to public use more than two years before he filed his application. R.S. § 4920, 35 U.S.C.A. § 69. If this be true a description of his patent and its alleged infringement become immaterial.

Appellee, Alfred L. Sova, was employed by the Buick Motor Company in 1921 as a utility foreman and shortly thereafter became foreman of its piston ring department and had supervision of the grinding of all the piston rings used by the Company. When he started working for this Company it used an automatically operated ring grinder, which was old to the art and which left a burr on the ring.

In June, 1922, the appellee made a rough sketch of his appliance and constructed it of scrap metal, and placed it on one of the Buick grinding machines. It worked, but imperfectly, and he attempted to perfect it by making another which was completed before April, 1923, and placed on the machines and worked satisfactorily. Blue prints were made of it by the Buick Company before April 3, 1923, and orders issued by it for the construction of the devices in sufficient quantities to service five grinding machines which the Buick Company then had in operation. To this point the facts are not in dispute.

Appellee testified that the second device magnetized because made of cast iron and in contact with a magnetic chuck in the old machine; that it loaded up with metal shavings causing it to clog and break or scar the rings. He further testified that while blue prints were made of this device and additional ones manufactured conformable to them and of a non-magnetic metal they were not placed in operation until after April 30, 1923, and that their uses until that time were experimental. Appellee had no written record to substantiate his testimony as to the date of the completion and testing of the device. He undertakes to fix the date by the birth of one of his children, which occurred on April 6, and its baptism May 6th. His own birthday fell on May 5th, and he and his family attended services in the cemetery at Saginaw, Michigan, Decoration Day in May, 1923. Appellee says he was in charge of all the machines on which his device was used and he knows they were not thus equipped until after all of the above events had taken place. He also undertook to refresh his recollection from a written report of the efficiency engineer of the Buick Motor Company, dated July 3, 1923, and which he says was made with reference to this appliance after his machines had been in use for thirty days.

The factory manager of the Buick plant testified that the first appliance devised by appellee did not work satisfactorily, but that the second one did and that it was placed on one of the machines during the shut down inventory period between December 23, 1922, and January 2, 1923, and was continued in use until the middle of March, 1923, during which period approximately 150,000 rings were finished on it and passed into production along with the others. He testified the drawings of this device were completed about the first week in April, and additional devices manufactured from the blue print and placed on the other machines and rings ground on them before April 29, 1923.

The Master Mechanic for Buick testified he was in charge of all tool designing, ordering of tools, jigs and fixtures. He testified that he saw the second fixture made by appellee in successful operation before April 3, 1923, and that he saw the original tracings and blue print of this fixture before that time, and he saw the additional fixtures in operation before April 23, 1923, and that there was no delay in making the blue prints and manufacturing the device in his department. The witness identified written orders dated April 4, 1923, issued by him for making the castings and identified receipts dated April 16th and 17th executed in his Department for them. This witness also testified that the factory manager was pressing him to get the additional fixtures built quickly and he put the second fixture constructed by appellee on one of the machines before its drawing was completed. A tool designer for Buick testified he made tracings for the blue prints of the second appliance before April 3, 1923, and produced and identified these tracings with his initials marked thereon, and dated April 3, 1923.

The Manager of the machine and tool repair room of Buick testified he helped appellee build his first device in the Fall of 1922. He observed it in operation and instructed one of the men working under him to build the second fixture, which was completed early in January, and that thereafter it was continuously used for six weeks in the manufacture of rings, when it was removed and drawings made from it and then replaced on the machine for continuous use. He testified that this helper worked overtime to build four additional fixtures, which were placed on the machines, and some of them were in use before April 28, 1923.

A tool maker testified that he was instructed by the manager of the tool room to assist appellee in building his first device, and he saw it attached to the grinder and in use, and that he assisted appellee in building the second device, and it was completed and attached to the machine before the company's 1922 inventory was completed. He also testified that he took this device off the machine to have drawings made and afterwards made additional fixtures from them, and that he installed the third or fourth one on April 28, 1923; that all of the others were manufactured and placed on the machines by working overtime. He says he is able to positively remember the date because he took time off of his overtime for the purpose of purchasing and receiving a new automobile, which was on the installment plan, and the mortgage was executed April 28, 1923. The witness produced and filed the mortgage.

A machine...