Appeal from the District Court of the United States for Western District of Pennsylvania; Robert M. Gibson, Judge.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
BUFFINGTON, Circuit Judge.
Of all the major industrial arts, glass blowing has been the slowest to change from hand to machine methods. In the three hundred years following the bringing of the glass-blowing industry to the United States by the Jamestown colonists and their building of two factories to make beads for sale to the Indians, there has been little, if any, change in the blowing of glass containers of any kind. This is due to several causes. The high skill and delicate handling of molten glass requisite for a glass blower made his art one where human skill seemed indispensable and the possibility of reproducing this human skill by a machine seemed impossible. Second, molten glass, owing to its intense heat, its rapid change from fluidity to viscosity, made the art one where observation of the characteristics of glass in these rapid changes was very difficult. And, lastly, the skill of the glass blower and the strangle hold of the glass blowers' unions made organized labor an adamant wall to be overcome by experimenters in their efforts to construct machines. Whatever were the causes, the art for three hundred years showed no advance. An appreciation of these facts and others that might be suggested must now be had by this court to enable it to give due regard and due reward to those who have brought about a rapid and well-nigh miraculous change in the glass-blowing art.
The situation in this present case is in many particulars not unlike that of another glass-blowing case reported in Consolidated Window Glass Co. v. Window Glass Mach. Co. (C.C.A.) 261 F. 362, 368, 369. It involved the kindred step of changing from the lung blowing to the machine blowing of window glass. There, as here, the experiments extended over several years. They were carried on in barricaded buildings owing to the hostility of the labor unions. In that case the trial judge (see page 366 of 261 F.) detailed at length some of the difficult problems encountered in changing from lung blowing to machine blowing of window glass, and many such like problems here arose in changing from lung-blown to machine-blown bottles. He there said: "It is, perhaps, true that few, if any, of the arts presented so many perplexing problems as the drawing of glass cylinders * * * from a molten bath. These problems appeared at the very beginning of the operation, and rose up persistently all along the way. The inventor had to deal with elemental actions, forces, and properties of matter * * * heat applied to the glass, and cold applied to the molten liquid; the properties and physical constitution of the glass as it passed from the solid to the liquid condition, through the plastic condition up to the solid state again. * * * These problems were not only numerous and complex, but many of the difficulties were latent and were only located after repeated experiments and failures. When the difficulty had been definitely determined and located, the remedy had to be found."
The recited problems and many others existed in the present attempt to change from lung blowing to the machine blowing of bottles in the present case. It follows, therefore, a realization of the practical difficulties confronting an inventor in the present case, as we have said, is necessary to a just decision of the case and is in line with what this court pointed out in the foregoing case, when we said that it "points out the proper attitude of a court toward the patents which have bridged the great chasm between the hand-blown and machine-drawn window glass"; and here between lung blowing and machine blowing of narrow necked bottles. In that case millions of dollars were sunk in experiments covering several years, and as there stated: "The plants were closed and the operations carried on in the most carefully guarded way."
Taking up the ancient lung-blown method: Its usual course was for a workman to insert a "pontil" or steel rod into the opening or "glory hole" of a glass tank or furnace. Rapidly revolving this pontil, he gathered a mass of molten glass on its end, withdrew it from the furnace, and, while blowing, worked it over a mold by turning while it was in a viscous, nonfluid condition. By skillfully blowing and turning, he was able to allow a desired quantity of viscous glass, or "gob," to hang in suspension from the mass on the pontil. Contact of the air with this suspended mass made the glass still more viscous and caused a skum or skin over its outer surface. This "gob" or mass, influenced by the gravity of its own weight, or if left without turning of the pontil rod, descended with increasing velocity, leaving a "gob" tail which gradually grew thinner and more attenuated until the whole structure assumed what was called a "tadpole" shape. If such a tadpole shape was allowed by the blower to enter the mold, the tail would follow the main mass and fall in layers upon the gob, which latter, when blown into the form of the mold, would, for various reasons, be unequally distributed and thus make the article thicker at one side than elsewhere, and would also show objectionable waves in the blown article. To avoid these defects, which indeed could not always be overcome by even the most skillful blower, another skilled workman stood by with shears, and as soon as the pontil operater had depending or in suspension a gob of sufficient quantity and of a size approximately like the walls of the mold, the other workman sheared the mass loose while in suspension and it was dropped into the mold and was blown to final form.The "tadpole," with its attenuated tail, the lapping of that tail over the gob, and a gob of a size sheared in suspension and of a shape to confrom to the sides of the mold, are well known to those familiar with the practices of the lungblown art.
But, of course, the work of the glass blower was limited in product and, owing to lack of skill, inattention, or other causes affecting different blowers, bottles and other containers were oftentimes wavy in appearance and the glass on the walls of the containers was of unequal thickness, which was, of course, highly objectionable. But so the lung-blowing art continued. Mean-while there had come into it, first, the placing of molds on a revolving frame or table, and, second, the use of air in blowing, steps which are described in reported cases involving those features. But the most radical step in bottle blowing occurred about 1904, when the Owens process was invented and came into rapid use. Without entering into details, it suffices to say that in the Owens invention molten glass, at a very high temperature and of great fluidity, was drawn up by suction to Owens molds and there mechanically blown. It will be observed that in the hand method the gob dropped into the mold was of desired quantity and desired artificial shape. It will also be noted that in the old blowing process there was no continuity and no regularity of gob-forming, but each gob was formed individually as the individual blower blew and shaped it. But in the Owens device there was constant feeding of the highly heated fluid glass, there was a continuous, even, and uniform suction pull, a constant stream was fed to the molds, with the resultant stream of gobs, identical in all ways. When the machine was properly timed and adjusted, there was secured a product uniform in character and of a quantity limited only by the number of machines used. Owens' device was a great step. The basis of its success was a constant stream of glass so high in temperature as to maintain fluidity, as contrasted with that viscosity and lower temperature used in lung blowing. In his process fluidity was essential and viscosity was fatal.
As we have indicated, the labor organizations were vitally interested in the supplanting of hand blowing by mechanical blowers, and we naturally look to the proceedings of their several organizations to find what machine blowers were of practical working capacity and ones which they regarded as supplanting lung blowing. We can therefore, and do, rely on their opinion in that regard, for successful machine blowers largely spelled ending of the supremacy of lung blowing. In an article prepared by the president of one of these unions, he said: "Up to about 1892 practically all of the bottles manufactured in the United States were made by hand blowers and the introduction of machinery had not received serious consideration from the association. During the period extending from about 1892 until perhaps 1904, several bottle-making machines were tried, some of which were put into successful operation, supplanting a certian number of hand workmen. All of these machines, however, required the service of one or more skilled glass workers. They all required a gatherer to feed the glass to the machine and some of the machines were operated entirely by hand. Some required a transfer boy and take-out boy. Some of these machines were not automatic at all, in the present meaning of the word.The 'Johnny Bull,' for example, was a highly successful machine, and it displaced a certain number of workers, but the only automatic feature of the machine was that compressed air was used instead of lung power. All these mechanical operations were manually actuated."
It is thus clear that during that time no mechanical blower of any importance was invented, but about 1905 a startling machine appeared, which is thus described by the official referred to:
"In 1905 the bottle blowers were suddenly confronted with a new bottle-making machine, which had every appearance of supplanting substantially all of the then existing semi-automatic bottle machines and putting the Bottle Blowers Association almost out of existence. Notwithstanding the increased use of 'semi-automatic' machines, by far the greater part of all bottles made at this time were made entirely by hand. This machine was the Owens bottle machine, which drew the molten glass for the mould charge, from the tank directly into the blank mould, thereby doing away with hand gathering. The bottle was delivered from the machine completely finished and it was of a quality closely approaching, if not fully equaling, that produced by the hand blower. The introduction of this machine was rapid. In 1905 there was but one in operation, and in 1917 there were about 200 of these machines engaged in commercial production. It was apparent that if these machines continued to be adopted at that rate it would be a comparatively short time when they would be capable of turning out practically all the common bottles used in the country, and the practical elimination of skilled workmen. The production of these machines, even at an early date, was such as to cause serious alarm among the bottle blowers. * * *
"The more general use of Owens machines was prevented by their high investment cost and by the fact that licenses for their use were confined to a comparatively few concerns, but we find the bottle blowers in 1911 still facing what appeared to be a most critical situation, with respect to the Owens machine, and, strange as it may seem, they were looking to improved machines of types other than Owens, that is the Johnny Bull and O'Neill machines, for instance, to provide work for those who might be thrown out of employment by the Owens machine."
Owing to its extremely high cost -- one of these Owens machines cost $80,000 -- it was quite apparent that in the mass production which they effected and the inability of smaller factories to equip themselves with such expensive machinery, two things would follow: First, the Owens machines would monopolize the bottle industry; and, second, the small factories would be driven out of existence because they could neither install Owens machines, due to cost and refusal to license, nor compete with Owens in the cost of production. In that respect the address of the official whom we have already quoted further said: "The more general use of Owens machines was prevented by their high investment cost and by the fact that licenses for their use were confined to a comparatively few concerns, but we find the bottle blowers in 1911 still facing what appeared to be a most critical situation, with respect to the Owens machine."
The testimony of Cunningham, who was an experienced officer in a glass company, but not interested in this suit, was that: "The so-called independent manufacturers of bottles were suffering great privations due to the competition with the automatic Owens machine. The independents were struggling for an existence, and using semi-automatic processes, which put them in an unfavorable competitive position as to prices."
While the Owens machine thus confronted the labor organizations, a new danger arose which threatened to eliminate the glass blower even from small factories. This situation is thus described by the official quoted:
"While they were still in a position of great uncertainty and suspense in regard to the Owens machine they were confronted with another improvement in glass-working machinery, which seemed, at first, to carry a threat equally as dangerous as the Owens machine. The first record which we find of this is in 1911, when their attention was directed to what was called a 'pouring or flowing device', of which there were five then in use in the Pittsburgh district. The first commercial use of this device was about 1908. This flow device, however, was used in making pressed, and pressed and blown ware only and it could not compete with the Owens machine in making narrow neck bottles.
It may be assumed that the general construction of these devices is shown in United States Patent to Homer Brooke, No. 723983, dated March 31, 1903. The general principle was to cause a stream of molten glass to flow from the tank into the mold until a sufficient quantity had accumulated, at which time the stream of glass was severed and temporarily supported while another mold was being brought into position. The glass accumulated in the mold in exactly the same way that molasses might be poured from a pitcher into a tumbler.
This pouring device appeared to the bottle blowers to be an iron man which could be put to work delivering glass automatically to the semi-automatic machines then in use, to the elimination of all hand gatherers, but this proved to be a false alarm."
It is interesting to note that in that connection the trade, these labor organizations of practical workmen, recognized the fact that both the Owens and the Brooke devices were of the same character in that the molds were fed by a constant stream of glass flowing (and therefore of high heat and fluidity) and not fed by selected pre-formed quantities of glass of low heat and consequent viscosity. In that respect the article already quoted, while recognizing the individual ways in which Owens' and Brooke's mechanical blowers worked, made it clear that both worked on the same general principle of feeding from a tank by a continuous stream of glass which was fluid and therefore of high temperature. In that regard it is said: "The basic distinction between these two classes was that the Owens machine sucked its mold charge directly into the blank mold, whereas the Brooke flowing device poured a stream of glass into the mold, and this mold might be one of the semi-automatic machines formerly in use."
From the evidence of the witness Cunningham it appears that during 1916, 1917, and 1918 the present defendants, for the manufacture of tumblers, "were using a flowing method known as the Brooke flowing feed, which was a continuous stream of glass flowing into the mold interrupted at intervals as the mold was charged." He also states that the stream flowed into the mold folding in laminations, formed blisters, and was not attractive. And such, as we note later, was the finding of the court below, namely, that Brooke's was a failure.
From the above it is clear that up to this time, while the Owens device threatened to monopolize the art by driving the small factories out of existence and as a result deprive of work the glass blowers, who still continued to work in such small factories, yet no step had been taken to supplant the glass blowers, who still worked in such small surviving factories, by installing therein a mechanical device which would mechanically imitate and be an accurate mechanical substitute for the blowing operation of a glass workman -- blower or gatherer -- namely, form a gob of glass which was suspended from a pontil while being conformed by lung blowing to a desired shape mold and also supplant his skilled fellow worker whose duty it was to timely shear such conformed gob, while held in suspension by the pontil. Or, to state the same thing in another way, no machine had been produced which mechanically did the individual work of the skillful glass gatherer and the equally skilled shearer in the same way, in the same sequence, at the same times, and mechanically reproduced the same functional operations theretofore manually done by the blower by simultaneously turning and blowing and of the shearer by severing the gob at the exact instant that the blower got it to shape.
Now an analysis of the work of a blower with a pontil and the shearing rod is this: As a mass of glass descended from the pontil rod, the manipulation of the rod was such that the mass or gob, instead of being allowed to descend with increased speed, was, by the skill of the blower, held in suspension while fluid glass was lung-fed or stuffed into it and the skin of the gob was thereby distended uniformly until the artificial gob thus produced approximated the desired mold shape, at which instant the flowing stream from the pontil was severed by the shearer, and the gob in its artificial form passed into the mold.
We pause for a moment to say that the skill of a glass blower, dealing as it did with instant dispatch, in simultaneously turning the gob and at the same time using just sufficient volume of lung power to blow the forming and suspended gob to desired shape, with equal and distributed skin thickness, and the co-operation of the shearer who sheared the suspended gob at that exact instant which made the gob a successful one, all these human, variable steps, coupled with the rapid changes of molten glass as affected by air, metal, and internal and external heat, united to stamp the glass blower as an artisan of the highest skill, the supplanting of whose skill by an insensate machine of constant uniformity of action seemed impossible. Owens did it by departing wholly from the glass blower as his ...