Palmer v. McDermaid 54 F. 509

PALMER et al. v. McDERMAID.

(Circuit Court of Appeals, Seventh Circuit.

February 11, 1893.)

No. 59.

Pathnts bob Intesttohs — Novelty—OrirRxs.

Letters patent No. 378,Ml, issued February 21, 1888, and Nos. 418,355 and 518,356, issued December 31, 1889, to Samuel D. Palmer, for devices for seeming the lid of end over end revolving barrel chums, consisting of the combina ton, with a chum having bails, of a removable head, and a cam to engage the free portion of the hails, and means for operating the cam, are void for want of novelty, having been anticipated by letters patent issued July 5, 1881, to William Dobson.

Appeal from the Circuit Court of the United States for the Kbrth-efcn District of Illinois.

In Equity. Suit by Henry H. Palmer, George E. King, and Samuel D. Palmer against John McDermaid to restrain the alleged infringement of certain patents. Defendant obtained a decree.

Complainants appeal.

The following opinion was delivered in the circuit court, May 2, 1892, by Judge BLODGETT:

“In this case defendant is charged with the infringement of patent No. 378,144, granted February 21, 1888, to Samuel D. Palmer, for a ‘chum,’ and. patents Nos. 418,355 and 518,356, granted December 3.1, 1889, to Samuel D. Palmer, for a ‘chum.’ All these patents reta te to devices for securing the lid oí end over end revolving barrel churns. Patent No. 378,144 shows a ring head, preferably of metal, inserted in the croae or open end of the chum, and extending inwardly, say a couple of indios, more or less, — enough to form a seat for the lid. On this ring head are four uprising ears, to which two bails are pivoted in such a wa.y that these bails may be used to handle the chum, aud are also adapted to be used as levers to press upon the lid, and hold it closely upon its seating on the ring head, so as to close the churn; these • bails acting as levers, and when turned inwardly, towards the center of the lid, are fastened so as to hold the lid firmly in place. Infringement is charged of the first claim of this patent, which is: ‘(1) The combination, with a churn having hails pivoted thereto, of a removable head, and a cam secured to the said head to engage the free portions of the bails, substantially as set forth.’ Patent No. 418,355 is, in its general characteristics, as the preceding one, except that it shows the ears attached to the body of the chum, outside of the ring head, and a device for locking the bails in place after they have been turned over the lid to act as levers to hold it closed; and infringement is charged of the second claim of this patent, which is: ‘(2) The combination of a churn body having a pair of bails pivoted thereto, a ring head, a removable head, a cam secured to the removable head to engage the free por*510tion of the bails, and means for operating the cam, substantially as set forth.’ Patent No. 418,350 shows a chum in which the staves of the open end are cut off square, or at right angles with lengthwise axis of the chum; a removable lid, mainly of wood, encircled with the metallic ring surrounding its periphery and a portion of its top; a portion of the outer periphery of the under side of the lid cut away, and filled with cork packing; ears fastened to the body of the chum, with the lower parts of such ears so twisted as to conform to the body of the churn, and the upper part so twisted as to bring the holes of the bail in line with the bail, or in a chord across the periphery of the lid; bails adapted to act as levers to hold the lid in the closed position; a bolt passing up through the center of the lid, on which a cam turns to lock the bails, when it is desired to do so, for the purpose of holding the lid firmly in place. Infringement is charged of the third, fourth, fifth, sixth, • seventh, eighth, and ninth claims of this patent, which are: ‘(3) The combination of a removable head, a chum body, two pairs of ears secured to the churn body, and provided with bail holes, arranged at an oblique angle to the base portion of the ears, and a pair of bails pivoted to the upper portion of the ears, and engaging the removable head, substantially as set forth. (4) The combination of a removable head, a churn body, two pah's of ears secured to the churn body, the upper portion of the ears formed at an angle to the base portion, and a pair of bails pivoted to said upper portion, and engaging the removable head, thereby holding it in position, substantially as set forth. (5) The combination of a removable head, a chum body, two pairs of ears secured to the churn body, the upper portion of the ears formed at an angle to the base portion, a pair of bails pivoted to the said upper portion, and engaging the removable head, and a fastening for the bails, substantially as set forth. (6) The combination of a removable head, a fastening on the removable head, a chum body, two pairs of ears, each ear-being secured to the churn body by a fastening passing radially through the chum body and ear, the upper portion of the ears formed at an angle to the base portion, and a pair of bails pivoted to said upper portion, and engaging the fastening, thereby holding the removable head in position, substantially as set forth. (7) The combination of a chum body, a pair of bails pivoted thereto, a removable head, and a cam secured to the removable head to engage the free portion of the bails, substantially as set. forth. (8) The combination of a churn body, two pairs of ears secured thereto, a pair of bails pivoted to the oars, a removable head, a cam located on a removable head to engage the free portion of the bails, and means for operating the cam, substantially as set forth. (9) The combination of a chum body, a pair of bails pivoted thereto, a removable head, a cam located on the removable head to engage the free portion of the bails, said cam being provided with a lever projection or projections to form means for operating the cam, substantially as set forth.’

“The defenses of noninfringement and want of patentable novelty were both ' relied upon, but I care only to consider the latter.

“The patent of July 5, 1881, to William Dobson, which is in evidence, shows all the features of the complainants’ patent 378,144. We there see the ring head with the four ears, the two bails swinging in these ears, and so arranged as to act as levers to hold the lid in place when the chum is closed, and a rotating cam in the center of the lid to engage with these bails to press or hold the lid firmly in place. Patent No. 41S,355 does not differ from the Dobson device in any essential particular, except that the ears are to be fastened to the body of the chum, instead of the ring head, and minute directions are given for making a cam fastener to hold the bails in place when they act as levers to fasten down the lid. And I say, unhesitatingly, that these features do not rise to the dignity of invention, but involve the simplest order of mechanical skill. If, for any reason, it was deemed desirable to put the ears on the body of the chum, instead of the ring head, any mechanic could have done so.

“The same may be said of patent No. 418,356, which is but a reproduction of the Dobson patent and of complainants’ patent 418,355, so far as ears, bails, and cams are concerned; and there was surely no inventive ability required to cut the open end of the churn off square, and fit the lid upon it, *511using the Dobson bails to hold It in place, and the cork packing to make a tight joint. The cam of this patent is but a reproduction of the Dobson cam, so far as X can see from the drawings, except that the cam face may be a little more inclined, — a little more ‘cammy,’ if X may coin a word to describe the difference. But the question of too much cam, or whether any cam is necessary, depends largely upon the shape given the bails. If tbe arcb of the bail is high, it is obvious that when it is placed in an inclined position, as it must be to lock the lid closely, the bail itself will furnish cam enough, so that a straight button might only be required to press home the lid. If the bail arch is low, then some cam shape should be given the button to secure the requisite amount of pressure to the lid.

“With all due respect to the patent office, I must say that it seems to me all these patents in suit, as well as others in this record, were very improvidently issued. They may cover improvements in this class of chums, but all improvements do not involve or imply invention. These patents are void for want of novelty, and the suit is dimissed for want of equity.”

Banning <& Banning & Payson, for appellants.

L. L. Morrison, for appellee.

Before GRESHAM and WOODS, Circuit Judges,-and BUNN, District Judge.