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uation in this regard cannot be stated more fairly than by the witness himself. He says: “Of course, I assisted on all the machines, and I can't recollect one part any more than another unless the part were shown me to refresh my mind.” And, again: "I cannot remember every detail of every or any one machine that was built thirty years ago, when I was about seventeen years of age.”
Second. There are numerous contradictions and admitted errors in his testimony. These are not more numerous than would be expected in the testimony of any witness who attempted to describe a machine which he had not seen for 30 years, but they demonstrate how unreliable his memory is. For instance, how can the court find that he is right as to the crank shaft when he is clearly wrong as to the treadle rod? .
Third. There is evidence inherent in the stand itself that it was never anything more than an experiment. There is no band wheel. This wheel has to be fitted on the crank shaft before the shaft is mounted in the bearings. If a wheel were ever on the shaft where is it? It could hardly have been broken off without leaving the hub at least. If the machine were dismembered, what possible reason could there be for carefully replacing the shaft in its bearings? The inference that the structure was an experiment iş surely as plausible as that it was an operative machine.
Fourth. The presumption that it was never a completed machine may be drawn also from the following facts: The treadle was absent, and there was no hole in which to insert the pin which holds the treadle to the rod. There was no table and no marks indicating that the machiñe had been used. There was a hole on the left leg directly opposite the boss on the right leg, indicating that a crank shaft running clear across from leg to leg had first been used. There is also the presumption that if the machine had been made for sale the lug would have been cast on the brace, and not made of wrought iron and screwed to the brace.
Fifth. The brace and the adjustable bearing for one end of the crank shaft were improvements which made their appearance in the art after 1865. It is most unlikely that one man in 1863 should have hit upon a stand combining so many valuable features which were produced by the evolution of the art during a series of years by different inventors at different times and places. If these things were well known in 1863, is it probable that they would have lain dormant for half a dozen years? If the experiment were made in the 70's the appearance of these features would be natural enough, but their appearance in 1863, when the art was yet in its infancy, is certainly extraordinary. A structure which anticipated so many inventions would have been put to some nobler use than as a stand for flowers.
Sixth. Burdge can hardly be called a disinterested witness. He contradicts himself and is contradicted by others upon many material points. None of the parties to whom he says machines were sold have been found, and persons who would naturally know of the machines if they had existed never heard of them.
Many other considerations of a similar character tending to cast suspicion upon the alleged prior use might be alluded to, but it is unnecessary to pursue the subject further. Enough has been said to demonstrate the proposition that the proof in support of defendant's contention is vague, uncertain and contradictory. It fails to carry conviction to the mind; difficulty is encountered at every turn.
The court approached this defense with every inclination to treat it with the utmost fairness. When, however, all has been said in its favor, there is still the ever-present doubt as to its verity. There is still the conviction that the court cannot be sure that a completed operative machine like the exhibit was made by Burdge prior to 1864, or that such a machine was ever made by him. The flower stand is a certainty; all else is uncertain. When, where, by whom and for what purpose the crank shaft was placed on the stand is conjectural. The moment the realm of speculation is entered several theories suggest themselves at least as plausible as that advanced by the defendant. In order to sustain this defense the court must find that the evidence of fered in its support is so strong as to exclude every reasonable hypothesis that the structure was of an experimental and tentative character. Can the court find upon this proof that the Burdge flower stand was ever a part of a completed machine? Can it say this beyond a reasonable doubt? It is thought not. No authority has been found where a patent has been defeated upon proof so vulnerable. Something more than probability, certainly something more than possibility, is needed to anticipate a patent.
It is unnecessary to discuss the point suggested at the argument, because upon examination I am convinced that the structure when discovered as a flower stand had not reached such a point of completion as to warrant the inference which might, possibly, be drawn had some of the more important missing parts been present.
It follows that the complainant is entitled to the usual decree.
ROCKER SPRING CO. v. THOMAS.
(Circuit Court, N. D. Ohio, E. D. May 31, 1895.)
No. 5,187. 1. PATENTS-ANTICIPATION.
Patent No. 354,043, issued to Connolly, December 7, 1886, for "spring attachment for rocking chairs,” the principal feature of which is the use of spiral or coil springs to connect the base and rocking part of a platform rocking chair, located at opposite sides of the chair center, and in the center of the oscillation of the chair seat, and rigidly connected to such parts, was not anticipated by patent No. 185,501, issued to the same, December 19, 1876, for an improvement in tilting chairs, described as intended to provide a chair furnished with a spring which will afford an elastic or yielding support for the seat, and which will at the same time permit such seat to be tilted or rocked according to the inclination of the occupier's body and limbs, and the essence of which consists in the application or employment of a spiral spring in such a manner as will afford a support to the seat, being compressed fully or in part when such seat is occupied, and opening and expanding on one side whenever the latter
is tilted or rocked, etc. 2 SAME-INFRINGEMENT.
Patent No. 354,043, issued to Connolly, December 7, 1886, for “spring attachment for rocking chairs,” the principal feature of which is the use of spiral or coil springs to connect the base and rocking part of a platform rocking chair, located at opposite sides of the chair center, and in the center of the oscillation of the chair seat, and rigidly connected to such parts, but under the claims for which the springs could be applied to any part of the chair where their function could be properly used, is infringed by a platform rocking chair with springs applied directly to the rocker and to the base.
RICKS, District Judge. This is a bill filed by the complainant to establish the validity of letters patent No.354,043, which was entitled a patent "for spring attachment for rocking chairs,” dated December 7, 1886. The original application for said patent was filed on the 30th day of July, 1880. The complainant avers that the defendant is infringing this patent, and asks for an injunction and an account of profits and damages. The complainant claims title to this patent by assignment from M. Daniel Connolly and Thomas A. Connolly. The same inventors were granted an original patent, No. 185,501, dated December 19, 1876, application for which was filed February 19, 1876. Said original patent covered an improvement in tilting chairs. That invention was described as follows:
"The aim and intent of the improvements herein described are to provide a chair furnished with a spring which will afford an elastic or yielding support for the seat, and which will at the same time permit said seat to be tilted or rocked according to the inclination of the occupier's body and limbs. The essence of the invention consists in the application or employment of a spiral spring in such a manner as will afford a support to the seat, being compressed wholly or in part when said seat is occupied, and opening or expanding on one side whenever the latter is tilted or rocked. * The spring thus located forms a yielding or elastic support for the seat, and also permits the rocking of same in any direction from side to side, as well as front and back, facilitating by its tendency to contract or coil the return of said seat to a horizontal or approximately horizontal line after being tilted."
This patent related solely to tilting chairs. In its specifications and claims it is very clear that the spring described was fastened at the center pivot, and was intended to give the chair a tilt. It was soon discovered that this tilt was accompanied by a lateral motion neither comfortable nor safe. Stops and side supports were supplied to remedy this evil. On July 30, 1880, application was filed by the same inventors for letters patent for a spring attachment to rocking chairs, which is the patent now sued upon and in controversy.
The main defense which I deem it necessary to consider in view of the conclusion reached is that this patent was invalid for the 14)?":
“(1) That it contains nothing new, and does not describe an invention as shown by the state of the art. (2) That the evidence of the defendant's ex
pert conclusively shows that said patent contains nothing new, and does not describe an invention, and is not intended for, nor is it applicable to, a platform rocking chair, but is restricted by the claims, specifications, and drawings to a tilting chair. (3) That if an invention is described by the patent in suit, it is but an improvement on patent No. 185,501 by the addition of stops and side supports, or the so-called 'rockers,' E and F, and an extra spring for the purpose of preventing lateral movement resulting from the use of the single spring described in said patent, and is only applicable to a tilting chair constructed specifically in accordance with said patent No. 183,501; and that this is shown both by the file wrapper and the evidence of one of the patentees, Thomas A. Connolly, taken in this case."
It appears from the patent No. 354,043 that, though the original application was filed on July 30, 1880, the patent was not granted until December 7, 1886. This long period of delay in the patent office was occupied quite diligently by the patentees in what seems to me, after a full reading of the file wrapper and contents, to have been an effort to extend the original Connolly patent of 1875 to apply to rocking chairs. After a great many withdrawals, claims, disallowances by the examiner, and amendments by the patentees, the specifications and claims were quite different from those originally set forth. During all this correspondence and proceeding the effort of the patentees was clearly to extend the patent aforesaid so as to embrace rocking chairs. Did they succeed in accomplishing this? In the letters patent in suit the inventors said:
“The object of our invention is to provide a chair consisting of a seat having rockers secured to its under side and a base having a lower support for said rockers, with two connecting springs, which shall be of sufficient strength and tension to securely connect the base and seat parts together and hold the rockers in form alignment with their lower support, so as to prevent the said rockers from slipping forward and backward or sidewise thereon. The two connecting springs are to be placed and secured in or near the center of oscillation, and at off-center points,-that is, at the sides of the chair center, instead of its front or rear,--and to prevent the springs bending or rubbing the edges of the boxes forming the rockers should be a somewhat greater distance apart than the sum of the two diameters of the two springs. The springs are arranged with their longitudinal axes vertical and their ends rigidly attached to the seat and base parts of the chair, so as to hold the rockers in their proper relative position; and by their resisting the rocking motion in one action or direction and assisting it in the other an easy, comfortable, and agreeable motion is produced, closely resembling that of an old-fashioned rocking chair, and wholly different from the abrupt jerk of a pivoted tilting chair, and the swaying motion produced in a seat oscillating on long plate springs. The two springs, arranged as described, constitute the connection between the seat and base parts of the chair for holding the rockers and their lower support in alignment and proper relative position."
The whole intent and purpose of this invention, as set forth in the specifications and drawings accompanying both the patent in suit and those of the original application, show that, though the chair tilted on rockers, these rockers were connected with the bottom of the chair and with the lower base in such a way that from the outside view, at least, the chair presented the appearance of an ordinary tilting chair turning on a pivot. And that was at that time evidently the purpose of the inventor, because he described the location of the two springs as being at "off-center points," and at opposite sides of the “chair center,” describing the distance from each other to be such as would necessarily locate them within the space usually allowed for springs in a rocking chair constructed on a pivotal principle. This arrangement of the springs and of the rocker so located as to produce a comfortable movement backward and forward, and to prevent any lateral motion, obviated the noise and uncertain movements of the single spiral spring or of the other appliances that had been previously used. I refer particularly to the use of rubber bands or ligaments, the long, slender, coil springs, and the flat, steel springs. The patent office, after this long hearing upon the application for a divisional patent, allowed the claims and specifications as set forth in the patent in suit. During such proceedings the inventors made several amendments to their specifications and claims. In one of these earlier amendments the device was claimed to apply to "oscillating or tilting and revolving chairs." In another amendment it was made to apply to an "oscillating chair,” and in 1884 an amendment claimed it to apply to a “tilting or rocking chair.” In October, 1884, by the appeal then decided, the words used were “the combination in a tilting or rocking chair," and "no reference was afterwards cited "requiring any qualification or limitation in this respect.” In April, 1886, an amendment was finally made broadening the language, leaving out the descriptive words, and using the word "chair," claimed explicitly to be "generic and broad enough to cover either a tilting or rocking chair." The object thus sought to be accomplished during all these proceedings was to apply this device to platform rocking chairs. There can be no mistake as to the purpose of the inventors, or that their notification to the patent office in the several arguments and amendments submitted was sufficiently explicit to advise the examiner of the purpose they had in view. For example, in the argument submitted October 1, 1885, the solicitor for the peti
"The present claims, as well as the claims of the original application, are understood and intended as covering this form of attachment when used in platform rocking chairs, strictly and technically, as well as when used in ordinary tilting chairs; and the claims of the main application were so used by the former examiner, as well as the examiners in chief.”
The examiner thereupon insisted that the previous statements made by the applicant that the stops, the relation of the size of the springs to the size of the box, the spider, and the fact that the rocker boxes were made of metal, were omitted from the latest substitute specification, and suggested that these features should be included. In reply to this, however, the applicants expressly refused to do so, and said:
“The intentional and deliberate omission of these words from the claims will, of course, prevent any construction limiting the use of the invention to a chair having the rockers secured to the seat part by a spider. Instead of this, these claims are still intended and understood as covering a chair in which the rockers are secured in any ordinary way,-as, for instance, in platform rockers; and in substance the same is true in reference to the insertion relating to the width or distance apart of the rockers, this being merely intended to show that the rockers must be wider apart than the springs, so as to be on the outside thereof."