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plied and released. As the first claim is the broadest of the number, it is sufficient to quote it. It is as follows:
"The herein described process of producing insulated electrical conductors, consisting in covering the conductor with a suitable insulating material and subjecting the insulation to pressure alternately applied and released, thereby compacting the insulation on the conductor."
We turn now to consider the defendant's process, which is as follows: A spool of wire is placed at one end of the defendant's machine. One end of the wire is attached to a second spool at the other end of the machine. By suitable apparatus the second spool, as it revolves, draws the wire from the first spool, through the various parts of the machine, and winds it about the second spool. In its progress from the first spool to the second the wire is first coated with an adhesive gum, then passes in close proximity to a toothed belt running, nearly at right angles to the wire, from a hopper containing flocculent asbestos. The teeth of the belt gather from the hopper and convey to the wire fibers of asbestos all lying longitudinally on the belt. Upon reaching the wire, which by suitable mechanism is made to rotate rapidly about its longitudinal axis, these fibers are attached to the sticky wire. The wire, with its coating of asbestos fibers, then passes through a die, which serves somewhat to compact the fibers about the wire, and which probably also serves in part as a guide to steady the wire as it passes next over or through an apparatus by which it is saturated with a compound called a "finishing solution." The wire next passes through a series of dies, by which the asbestos covering is still more compacted and reduced to a uniform thickness with a very smooth and even surface. It next passes over a heated plate, where the asbestos covering is dried, and finally to the second spool, on which it is wound as a finished product.
The defendant insists that there is no compacting of the asbestos covering in its process. But we feel very sure that this is not so. The effect of the dies is to compact the covering, and the finished product shows beyond all question that the covering has been compacted. In the defendant's process, however, there is no asbestos yarn wound around the wire, and there is no carding or brushing of the asbestos after it is attached to the wire. The defendant's process does not contain the third step of the complainant's process, unless the defendant, as the complainant contends, simply inverts the order of the steps in the complainant's process. The complainant's contention is that the defendant, by the use of the conveyor belt and the hopper filled with flocculent asbestos, secures the condition which constitutes the essential element of the complainant's process, and that it does so merely by changing the order of the steps in the complainant's process. The argument is that the complainant applies asbestos to the wire and then cards it, while the defendant cards the asbestos and then applies it to the wire. But what the defendant does is to place in the hopper a quantity of flocculent asbestos, and then draw from the hopper by means of a toothed belt fibers of asbestos, which are laid longitudinally on the belt and conveyed by it to the rotating wire. The carding thus done by the defendant is somewhat similar to the carding that must be
done in order to produce the yarn which the complainant uses in his manufacture.
The asbestos covering used by the complainant is subjected to two carding processes-one previous to its being twisted into a yarn, and the other after the yarn has been applied to the wire. The latter carding the defendant does not do, and that step of the complainant's process is wholly lacking. The defendant raises no nap on the surface of its wire by any process whatever. It simply attaches to the wire the loose fibers of asbestos, and then, saturating them with a suitable material, compresses the covering about the wire, so that the wire is incased in what has been aptly called "asbestos paper." This method of applying asbestos to the wire was wholly new. The complainant's expert, Mr. Shelton T. Cameron, was asked on cross-examination this question:
"The defendant applies its asbestos to the wire in a thin spread layer, does it not?"
The answer was:
"Certainly; but the defendant applies the asbestos in a thin spread layer in a way never before recognized in the art as possible in handling asbestos fiber. Prior to Downes' invention it had never been discovered that asbestos fiber, in the flocculent, fluffy form which such carded fiber assumes before it has ever been twisted or rolled or flattened, could be practically applied to the wire."
It may be that Mr. Cameron meant by this answer to convey the idea that the defendant's discovery of the method of applying asbestos in a thin spread layer was due to what the complainant had disclosed in his patent. Still, so far as the evidence shows, the discovery was not made by the complainant, but by the defendant. We think, therefore, that the defendant's process is in an essential respect different from that of the complainant, and that the first and second claims of the first patent in suit are not infringed.
Nor do we think the eighth and ninth claims of that patent are infringed. As already stated, these claims are for a product which is the result of the process referred to in the first and second claims. The product and the process are one invention or discovery. Furthermore, the samples of the complainant's product submitted to us show that the asbestos coating still preserves to some extent its yarnlike character, and it is possible to remove the covering from the wire by pulling the yarn or thread therefrom. The complainant's expert, Mr. William D. Wright, says:
"Asbestos paper is very susceptible to abrasion, while the asbestos covering on Mr. Downes' wire is in the form of an asbestos thread, which in itself is much tougher than paper, and from the method of manufacture this covering appears to be formed into a hard mass, thoroughly filled with insulating compound, which makes a very tough covering."
If the carding done on the wire by the Downes process results in straightening out all the fibers of the asbestos thread, so that its threadlike character is completely destroyed, it is difficult to understand how the asbestos thread aids in toughening the covering. We think that the statement made by Mr. Wright is equivalent to an admission that in the Downes process the asbestos thread is not wholly destroyed, and
that the carding done by Downes straightens out only a portion of the fibers of the thread. Indeed, the counsel for the complainant themselves say in their brief:
"The effect of this brushing or carding is to convert a large part [they do not say the whole] of the asbestos left on the wire into a flocculent or fluffy covering, spread over the entire surface, a condition most suitable for a further process of compacting and matting into a smooth, even coating."
As the defendant in its process uses no asbestos thread or yarn, none appears in its finished product. In this respect it is unlike the finished product of the complainant.
The complainant also insists that the defendant, by passing its asbestos-covered wire through a series of dies, subjects the covering to pressure "alternately applied and released," and thereby infringes the second patent. The defendant's dies are not contiguous, but are separated by short spaces. Mr. Cameron says:
"They might be so constructed, with a flaring opening at the side where the wire emerges from each die, as to enable the pressure to be released before the wire actually emerges from the body of the die; and, if they were so constructed, the dies might abut each other and still operate to subject the insulation to pressure alternately applied and released."
Unquestionably this is so, and the inference which we presume Mr. Cameron thinks we should draw from his answer is that if the dies are separated by short spaces, without flaring openings, pressure would be alternately applied and released; and this inference, we think, is a necessary one. But the only method of applying and releasing pressure described by the complainant in his second patent is by a succession of rapid blows. The question therefore arises: Can the complainant's second patent be construed so broadly as to include a method of applying and releasing pressure by a succession of dies? We think the prior art will not permit of such a construction. In the Albasini patent, No. 614,819, issued in 1898, the patentee describes a process for insulating wire with asbestos which, in substance, is as follows: The wire is covered with asbestos in the form of a sliver. It is then passed through a revolving cylinder, having a conical bore, from the larger to the smaller end of the bore. The covering is thereby compressed. After being released from that pressure, it is again passed through a set of three conically shaped rollers, which follow one another in revolving about the wire and serve still more to compress the covering.
One of the claims is this:
"In combination in an apparatus for covering wire with asbestos, the rotary cylinder having a conical opening through it, and the conical rollers carried at one end of the cylinder, substantially as described."
Here we have pressure applied by a rotating cylinder, which really is a rotating die, and by each of the set of three rollers, which are pressure rolls, and between the cylinder, or die, and the set of rollers, or pressure rolls, and also between each roller and the next succeeding roller, the pressure is released. In other words, the Albasini patent describes a process in which the pressure is alternately applied and released by the combined use of a die and pressure rolls. In the
complainant's first patent, also, pressure is alternately applied and released by the use of a series of sets of pressure rolls. Each set contains three rolls, which are placed 120 degrees apart and revolve about the wire. The specification says:
"After passing through a guide the wire is subjected to the action of a series of pressure rolls. In the machine shown there are two sets of these rolls (designated E and F in Figs. 1 and 2); but there may be more or less as desired. * * The pressure of the rolls being properly regulated by set screws, they compress and mat the asbestos fiber, reducing gradually the thickness of the insulated conductor to a suitable point."
But the complainant's counsel argue that nowhere in the prior art does it appear that pressure alternately applied and released is referred to as a step in the process of covering electrical conductors. While it is true that no such step is expressly mentioned in the prior art, would the complainant's second patent be valid if, instead of specifically describing a method of alternately applying and releasing pressure by a succession of blows, it specifically described a method of alternately applying and releasing pressure by the apparatus of the Albasini patent or that of the complainant's first patent? Manifestly not, for there would be nothing new in the step thus specifically described. How, then, can the complainant's second patent be so construed as to include the methods of alternately applying and releasing pressure which, though not specifically mentioned, are actually employed in the Albasini patent and in the complainant's first patent? We think it cannot be done. If the complainant's second patent be so construed as to limit it to a method of alternately applying and releasing pressure by a succession of blows or impacts, it seems to have novelty and to be a patentable invention. But it cannot include the method of alternately applying and releasing pressure by the use of rollers or dies. In the defendant's process dies only are used, and such a process is not an infringement of the complainant's second patent.
The decree of the Circuit Court is affirmed, with costs.
NEW ENGLAND MOTOR CO. v. B. F. STURTEVANT CO.
1. PATENTS-ANTICIPATION-MOTOR FRAMES.
The Burke patent, No. 631,518, for an improvement in frames for electric motors or generators, which consists in providing a frame or cradle in which the armature is mounted, and having bearings for the two ends of the axle, so as to preserve a perfect alignment, is void for anticipation by certain motors constructed for operating elevators which were in use prior to the application, and in which a similar cradle was used.
2. SAME-ANTICIPATION-BURDEN OF PROOF.
A public knowledge and use of a device by others prior to the application for a patent therefor being shown, the burden is cast upon the patentee to furnish convincing proof that the anticipation was anticipated by him in making the invention.
[Ed. Note. For cases in point, see Cent. Dig. vol. 38, Patents, §§ 65, 75.] 3. SAME.
The Bliss patent, No. 669,574, for a frame for electric motors is void for anticipation.
Appeal from the Circuit Court of the United States for the Southern District of New York.
For opinion below, see 140 Fed. 866.
This cause comes here upon appeal from a decree of the circuit court, Southern District of New York finding infringement of two patents for improvements in the frames of motors or generators. The first patent is to James Burke, August 22, 1899, No. 631,518, upon an application filed December 27, 1898; the first and third claims only being relied upon. The second patent is to Donald M. Bliss, No. 669,574, March 12, 1901, upon an application filed February 19, 1900; the first, second, and fifth claims only being relied upon.
Benjamin Phillipps and E. P. Howe, for appellant.
Before LACOMBE, TOWNSEND, and COXE, Circuit Judges.
LACOMBE, Circuit Judge. The Burke patent states that the invention relates to electric motors or generators, and "has particular reference to the frames thereof." It proceeds as follows:
"The object of the invention is to construct a machine in which the armature shall be concentrically placed in the magnetic field in perfectly-aligned bearings, which latter shall be permanent and not liable to displacement by use of the machine or other cause. In machines heretofore constructed rauch difficulty has been experienced by reason of the bearings becoming displaced with respect to the frame, thereby shifting the armature out of its proper position in the field and affecting the alignment. This difficulty is usually encountered in reassembling the machine after the parts have been once separated and the bearings and armature removed. It is desirable that the armature should at all times be concentrically placed in the magnetic field, and that the bearings supporting the armature should at all times be in perfect alignment with each other. It is further desirable that the armature be capable of being removed from the machine without being taken out of its bearings. I propose to obviate the difficulties above mentioned, and at the same time secure the advantages named by providing a frame or cradle in which the armature shall be adapted to be mounted; the frame being arranged to be secured in and form a part of the frame of the machine."