Appeal from the District Court of the United States for the District of Delaware; Hugh M. Morris, Judge.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
BUFFINGTON, Circuit Judge.
In the court below suit was brought by Massie, assignee of patent No. 1,588,948, granted June 15, 1926, to E. A. Downey for a "connector for ventilating racks and trays," charging infringement. After hearing, that court entered a decree holding, inter alia, that the patent was "good and valid in law as to all the claims thereof." Thereupon the defendant took this appeal assigning for error, inter alia, that the Court erred in so decreeing that the patent was "good and valid in law as to all the claims thereof." Inasmuch as this assignment is basic and as we have reached the conclusion the court was in error in decreeing the patent valid, we confine ourselves to that question alone, as error in that regard necessitates dismissal of the bill without reference to the other questions involved.
The proofs in the case show that the defendant was a manufacturer of refrigeration fruit cars. Such cars were equipped with fruit carrying racks which were slatted so as to permit ventilation. They were also provided with heavy hinges which allowed the racks to be folded over. This facilitated removal for cleaning. There was no proof that there had been any dissatisfaction with these hinged racks or any general call of the art for improvement therein. The hinges commonly used on the double racks extended above the rack, when flattened out, and thus made an uneven floor on which to rest fruit packages. The appellant express company desired a hinge that would not project above the rack floor and quite generally let its desire be known to men about the plant. Downey conceived the hinge in question, which is a two-way hinge hidden beneath the floor of the rack. Downey, the alleged inventor, was a carpenter in defendant's shops, who described his work as "Carpenter jobs -- any special jobs that come into the shop they generally turn over to me; Yes, putting in handles and any necessary work that employees make outside and they will come in to me and I will help them out."
"Q. Have you any contract with the company other than simply hired by the day or week? A. No, sir.
"Q. Have you been employed in putting in floor racks? A. No, sir.
"Q. Your work is indoor work? A. Yes, sir.
"Q. Floor racks are put on the cars outdoors? A. Yes, sir."
Taking the stand as a witness, he was asked to "state the circumstances under which you made this invention and about when?" The entire testimony as to such origin was as follows:
"A. Mr. Herold came in the shop a few minutes before four with some pieces of iron and held them up and said, 'How for a floor rack hinge?' Mr. McEwan said they needed a hinge that was wanted under the floor surface. I called Mr. Herold and Mr. McEwan over to the bench and on a drawing board I made a pencil sketch of a loop and explained to Mr. McEwan and Mr. Herold how it could be done.
"Q. Examine Plaintiff's Exhibit B for identification and say whether you recognize that as the sketch you have referred to? A. Yes, sir.
"Q. Was that sketch made on a block of that size? A. No, sir; it was a larger piece and I cut this small piece off."
Herold was not called as a witness, and, though McEwan, who was a foreman employed by the defendant, denied the testimony of Downey that he was the originator of the hinge and claimed he himself was the originator, we will not consider McEwan's testimony and confine ourselves to Downey's account of the origin of the device. It will thus be seen that by his own account, just as soon as it was suggested "they needed a hinge that was wanted under the floor surface," he, as a carpenter, without any experimental work, showed how it could be done and then and ...