Gerrard v. Cary (9 F.2d 949, 1924)

CAMPBELL, District Judge.

This is a suit- in equity for the alleged infringement of patent No. 1,466,334, issued by the United States Patent Office to Alee J. Gerrard and Parvin Wright, two of the plaintiffs herein, and also for alleged acts of unfair competition on the part of the defendants.

The plaintiffs amended at the trial by bringing in as a plaintiff Gerrard Wire Tying Machines Company, Inc., a New York corporation, to meet the objection of the defendants that the alleged unfair competition of the defendant, if any, was with that company, and not-with the other plaintiffs.

The defendants tender the.issues of invalidity and noninfringement, and deny unfair competition.

The action is based on claims 1, 2, 3, 5, and 6 of the patent in suit, which read as follows:

“1. In a wire straightening and swaging machine, the combination of means to straighten a wire; means to receive predetermined lengths of said wire; a power shaft; a cam loose on said shaft; means to connect said cam with said shaft when a predetermined length of wire has entered said receiving means; a lever actuated by said cam; one member of a pair of swaging dies carried by said lever; a stationary anvil carrying another member of said pair of dies co-operating with said first-named die member; and a cutting-die member rigid with and spaced from one of said swaging die members, substantially as described.

“2. In a wire straightening and swaging machine, the combination of means for feeding and straightening a predetermined length of wire; a continuously rotating power shaft; a pedestal having a faee through which said wire is fed; a lever pivoted between its ends to said face; an anvil provided with one member of a pair of swaging dies rigid with said face, disposed in the path of movement of one of the ends of said lever, and adjacent the path of travel of said wire; another member of< said pair of swaging dies carried by said lever end; and a cutting die member moving over the said pedestal face and rigid ■with one of said swaging die members, substantially as described. •

• • “3. In a wire straightening and swaging machine, the combination of a pedestal having á vertically disposed face through which a wire may bo fed; a wire straightening means carried by said pedestal; a wire feeding means carried by said pedestal; a power shaft and connections carried by said pedestal for operating said wire straightening and wire feeding means; means associated with said pedestal for receiving predetermined lengths of wire after it has been straightened; a lever pivoted on said face of said pedestal having a free end moving in the are of a circle and carrying cutting and swaging- die members spaced from each other; and an anvil located in the path of travel of said swaging die member adjacent the feed wire and carrying- a eomplemental swaging die member adapted to coact with said first-named swaging die member, substantially as described.”

“5. In a wire straightening and swaging machine, the combination, of means to straighten the wire; means to receive predetermined lengths of said wire; a power shaft; actuating means loose on said shaft; means to connect said actuating means with said shaft when a predetermined length of wire has entered said receiving means; means controlled by said actuating means; one member of a pair of swaging dies carried by said last-named means; a stationary anvil carrying another member of said pair of dies co-operating with said first-named die member; and a cutting die member rigid with and spaced from one of said swaging die members.

“6. In a wire straightening and swaging machine the combination of means, to straighten the wire; means to receive predetermined lengths of said wire; a power shaft; actuating- means loose on said shaft; means to connect said actuating means with said shaft when a predetermined length of wire has entered said receiving means; die operating means controlled by said actuating means; a swaging die operated by said last-named means; a stationary anvil co-operating with said die operating means; and a cutting member rigid with and spaced from said swaging die and actuated by said die operating means, substantially as described.”

The defendants offered in evidence the following patents issued by tbe United States Patent Office to show the prior state of the .art:

No. 231,255, issued to J. M. E. Baaekes, dated August 17, 1880, for nail-pointing die, discloses dies for simultaneously severing and pointing nails.

No. 326,240, issued to A. Prestat, dated September 15, 1885, for machine for making shoe nails, discloses dies for Rattening the sides of the nail, and a separate and independent cutter or cutters for severing the completed nail from the blank.

No. 326,644, issued to H. Hammond, dated September 22, 1885, for shearing die, discloses dies for swaging and cutting an ax blade.

No. 343,253, issued to D. M. Redmond, dated June 8, 1886, for machine for making umbrella ribs, discloses swaging and cutting-dies.

No. 354,603, issued to H. K. Jones, dated December 21, 1886, for metal screw machine, discloses combined cutting and swaging dies; the wire being fed in through ordinary straightening devices.

No. 354,828, issued to II. T. Crepeau, dated December 21, 1886, for wire nail machine, discloses dies, which, by a combined swaging and cutting action, cut the wire and swage a point.

No. 375,209, issued to C. C. Small, dated December 20, 1887, for nail making and distributing machine, discloses two rolls, each of which has a point swaging- or forming die, feed rolls for feeding the wire thereto, and a cutter to sever the pointed nail from the wire.

No-. 393,519, issued to C. D. Rogers, dated November 27, 1888, for die for pointing and cutting off nails, etc., discloses dies which, in severing the blank from the wire, form a cone-shaped point having a compressed surface.

No. 480,032, issued to I. G. Platt, dated August 2, 1892, for method of forming button bars, discloses the use of dies for swaging and cutting.

No. 648,094, issued to R. W. Barker, dated April 24, 1900, for machine for making lingoes, discloses a machine for swaging- and cutting wire, and the patentee says (pago 1, lines 10-30):

“The object of my invention is to provide an improved machine to facilitate the manufacture of lingoes, to do the work now requiring several persons and machines, and to economize in time, labor, and space in said manufacture. The method in vogue is to run the wire through a machine to straighten it and cut ,it into lengths sufficient to make two lingoes. Another person puts these lengths in a press to flatten them in the center. They are then passed to another machine and are cut in two at the flattened portion by a die, so as to round the ends of the lingoes. Finally they go to a punching machine, and a hole is there punched through the flattened ends.

“My machine has a feed mechanism attached and performs all the operations necessary to make the completed lingo. It feeds the wire, cuts off to length, flattens the head, punches the hole, and cuts the end round and smooth.”

Lingoes are straight wire lengths, swaged at one end, and perforated or slotted, to be connected with the warp threads of a loom to weight and tension them. This patent represents a machine built in 1899 and still in use, of which photographs were offered in evidence. This patent discloses combined cutting and swaging dies, the swaging dies being in advance of the cutting dies, but does not show a straightener, although it clearly contemplates the use of a straightener, and in the photographs the straightener is shown in the form of a hollow tube, which is different in form from the straightener' disclosed in the Nilson, Hoefer, and other patents. The combined cutting and swaging die is mounted upon a plunger instead of upon a lever arm, but the plunger is the full equivalent for the lever arm. In this machine the wire is swaged at the end cut, and not spaced from the end, but this is simply a matter of positioning the cutting and swaging dies.

N o. 655,720, issued to J. Lanz, dated August 14, 1900, for method of preparing and handling forgings, discloses simultaneous cutting and swaging dies.

No. 670,168, issued to J. Zimmerman & R. Wirth, dated March 19,1901, for machine for manufacturing can-opening keys, discloses a straightener, punches to perforate the wire in the portion to form the loop, and punches to perforate the wire to form the key slot and the cutting-off punch.

. No. 701,375, issued to A. H. Nilson and M. Olson, dated June 3, 1902, for wire straightening and cutting machine, discloses a straightener, feed rolls, cutting die carried by a plunger operated by an eccentric on a shaft. Beyond the cutter, the wire is held in guides, and its forward end engages a stop which acts as a tripper, and is connected with a wire to devices whereby the shaft is rotated to operate the plunger. In this machine the cutter die is carried by a plunger. This machine has been sold commercially, and the defendants several years ago changed the die, on one of these machines, so that it swaged as well as cut the wire, and have operated such machines commercially since that time.

No. 729,864, issued to F. W., A. G., and E. A. Hoefer, dated June 2, 1903, for wire gaging and cutting machine, discloses a machine which receives the wire from a coil, straightens it, feeds it, and automatically cuts it into predetermined lengths. This machine is operated in much the same way as the machine disclosed in the Nilson patent, but in the Hoefer machine the cutter die is carried by a lever arm. The machine made under this patent was the one used by the plaintiffs,'and its elements and mode of operation will be referred to later in more detail.

All of these prior art patents had expired before the application for the patent in suit was filed.

The plaintiffs referred to patent No. 1,-453,456, issued by the United States Patent Office to Gerrard and Wright, the patentees of the patent in suit, dated May 1, 1923, for wire deforming and severing machine, as illustrative of a machine which they developed prior to the machine of the patent in suit, and the defendants offered it in evidence. It was dated nearly four months prior to the patent in suit, to which it is prior art. Harvey Hubbell, Inc., v. General Electric Co. (C. C. A.) 267 F. 564. The object of the invention is described in said patent as follows:

“This invention relates to wire straightening and deforming machines, and has for its object to provide a mechanism of this nature which will be simple in construction, comparatively inexpensive to manufacture, and more efficient in use than those which have been heretofore proposed.”

This patent discloses a straightening feed roll, two sets of swaging dies, and cutting dies located between the two sets of swaging dies. The cutting and swaging dies are carried by levers operated by cams on the drive shaft.

The swaging dies are spaced from the cutting dies which are between the swaging dies, and, in operation, the flattened portion on the wire will be spaced accordingly from the ends. One set of swaging dies will flatten one length of wire adjacent to its rear end, the other set of swaging dies will flatten the next length of wire adjacent its forward end, and the cutting dies will cut the wire between the two flattened sections.

The wire which had a flattened section adjacent its forward end being fed forward to the predetermined length, it will then be flattened adjacent its rear end, and you will then have wire lengths with flattened portions corresponding spaces from each end. If one of the swaging dies was removed, the predetermined length of wire would be flattened adjacent to only one end.

From á consideration of the prior art, it appears that swaging and cutting dies for operating on wire, either with or without straightening, were well known to the art, as was the carrying of the cutter die by a plunger or lever arm.

The plaintiffs did not build an entirely new machine, but purchased a machine for straightening and cutting wire, made, advertised, and sold by Frank L. Wells Company, of Kenosha, Wis., under the said Hoefer patent, No. 729,864; the operation of the machine being described in the patent as follows (page 3, lines 3