the transmission gearing, comprising a control shaft which must be pushed or pulled and rotated in two distinct movements at right angles to each other, in order to selectively operate the transmission gearing. The end of the control shaft which operates the cross shaft is provided with a compound toothed wheel comprising a number of parallel disks which are spaced a suitable distance apart axially, and through which are passed a number of cylindical pins that form an annular series of circular teeth between the disks.
Barford's control shaft with the compound toothed wheel mounted axially thereon is positioned at right angles to the cross shaft, and its compound toothed wheel meshes with a second compound toothed wheel comprising a number of paralleled toothed gears spaced apart and mounted axially on the cross shaft. When the operating lever is manipulated to rock the control shaft, the pins of the compound toothed wheel coact with the sides of the toothed gears of the compound toothed wheel mounted on the cross shaft, to slidably shift the cross shaft to effect seclection of the desired gears. When the operating lever is manipulated to slidably shift the control shaft, the compound toothed wheel mounted thereon engages the teeth of the gears of the compound toothed wheel mounted on the cross shaft, thereby causing the rotation of the cross shaft to effect the gear shift.When this movement takes effect, the two compound wheels act in the nature of a rack and gear in the same manner as does defendant's device.
23. The British Barford patent is clearly understandable by those skilled in the art, and discloses an operative structure.
24. Defendant's structure does not infringe claims 2 and 3 of the patent in suit.
Conclusions of Law.
1. Claims 2 and 3 of the patent in suit are valid.
2. Claims 2 and 3 of the patent in suit are not infringed by defendant's structure.
3. The bill should be dismissed at the cost of the plaintiff.
Defendant admitted in his argument, orally and in writing, that claims 2 and 3 of the patent in suit are valid. The issue for the court's decision is whether defendant's structure infringes said claims.
The application for the patent in suit and the application for the Thomas patent were pending in the Patent Office at the same time. The presumption, therefore, is that the device provided for in the Thomas patent does not infringe the device provided for in the patent in suit. In Boyd v. Janesville Hay-Tool Company, 158 U.S. 260, 15 S. Ct. 837, 39 L. Ed. 973, it is stated:
"As both applications were pending in the patent office at the same time, and as the respective letters were granted, it is obvious that it must have been the judgment of the officials that there was no occasion for an interference, and that there were features which distinguished one invention from the other. In American Nicholson Pavement Co. v. Elizabeth, 4 Fish.Pat.Cas. 189, Fed.Cas. No. 312, Mr. Justice Strong said: 'The grant of the letters patent was virtually a decision of the patent office that there is a substantial difference between the inventions. It raises the presumption that, according to the claims of the later patentees, this invention is not an infringement of the earlier patent.' It would also seem to be evident that, as the purpose of the inventions was the same, and as the principal parts of the respective machines described were substantially similar, it was also the judgment of the office that the distinguishing features were to be found in some of the smaller, and perhaps less important, devices described and claimed. Burns v. Meyer, 100 U.S. 671 [25 L. Ed. 738]."
The patent in suit was granted November 7, 1933. It has not gone into commercial use nor has it had commercial success. The automobile industry is alert to procure improvements. The construction of the claims involved should receive a more restricted interpretation as compared with claims of a device of established commercial value.
Defendant's structure follows closely the American Foster patent and the British Barford patent, both of which are prior in time to the patent in suit and the Thomas patent. The structures and methods of operation of the devices described in the Foster and the British patents are described in findings of fact Nos. 21 and 22.
The structure and method of operation of the gear shifting mechanism of the patent in suit is stated in findings of fact Nos. 5 and 6, and of defendant in findings of fact Nos. 10 and 11. The patent is suit provides for a progressive system of changing gears. The Thomas patent provides for a selective system of changing gears. Claims 2 and 3 of the patent in suit provide for a single compound cam so constructed that it is simply rotated to transmit a reciprocating and rocking movement to the cross shaft. The Thomas structure requires that two distinct movements must be transmitted to the gear shifting mechanism in order to cause the cross shaft to slidably shift and rock.
We conclude that by reason of the presumption that the Thomas patent does not infringe the patent in suit, the lack of commercial use of the patent in suit, that the Thomas structure closely follows the earlier Foster and the British Barford patents, the difference in the system of changing gears between the patent in suit and the Thomas patent, and the difference in structure and the mode of operation of the devices rovided for in said patents, that defendant's structure does not infringe claims 2 and 3 of the patent in suit.
Let a decree be prepared and submitted in accordance with the foregoing findings of fact, conclusions of law, and this opinion.
© 1992-2004 VersusLaw Inc.