The opinion of the court was delivered by: MCVICAR
This is a suit for infringement of a patent wherein the plaintiff seeks an injunction and an accounting. The answer raises the usual defenses of invalidity and noninfringement. The court, after hearing and consideration, makes the following findings of fact and conclusions of law:
1. Plaintiff, David Hoppenstand, is a citizen of the United States, residing at Glenshaw, Pa. Defendant, Mack-International Motor Truck Corporation, is a New York corporation having an office and place of business at Pittsburgh, in the Western District of Pennsylvania.
2. Plaintiff is the owner of the patent in suit, No. 1,933,908, which relates to gear shifting mechanism. The application for the patent was made March 7, 1932. The patent was granted November 7, 1933.
3. The patent in suit states in relation to the object of the invention that:
"It is the principal object of the invention to provide a manually operated control means for automatically shifting the speed changing gears of the transmission mechanism and which may readily be applied to vehicles already in use, without necessitating any material change or alteration in their existing construction and which in the building of new vehicles may be installed as a part of the steering column assembly.
"More specifically stated, the present invention resides in the provision of novel gear shifting mechanism that may be associated with the standard, or common types of speed changing transmission systems, now universally used in automobiles, and which may be operated by the rotative movement of a crank arm or lever adjacent to the steering wheel to effect the proper shifting of gears for any one of the desired speeds. There being, for convenience, a dial associated with the control arm on which are marked the various positions to which the control arm should be adjusted to effect the shifting of gears for any of the speeds possible.
"Another object of this invention resides in the special design and use of a compound cam associated with the controlling means of the gear shifting rods."
4. Plaintiff relies on claims 2 and 3 of the patent in suit, which read:
"2. The combination with a change speed transmission mechanism including a pair of gear shifting rods that are longitudinally movable in opposite directions from neutral position, of a control means therefor comprising a longitudinally movable and rotatable shaft, a lever arm fixed thereon and selectively engageable, by longitudinal adjustment of the shaft, with one or the other of said rods, a cam, a follower fixed to the shaft and operatively engaging the cam, a manually adjustable means for rotating the cam to effect longitudinal shifting of the cross shaft and a rotative movement thereof for effecting movement of a gear shifting rod."
"3. The combination with a change speed transmission mechanism including a pair of gear shifting rods that are longitudinally movable in opposite directions from neutral position, of a control means therefor comprising a cross shaft mounted for longitudinal shifting and rotatable in opposite directions from neutral position, a lever arm fixed to the shaft and selectively engageable, by longitudinal adjustment of the shaft, with one or the other of said rods, a compound cam, a yoke fixed to the shaft and embracing the cam, a manual control for rotating the cam thereby to effect longitudinal adjustment of the cross shaft and its rotative movement for selectively operating either of the gear shifting rods."
5. The Hoppenstand device, as shown in Fig. 1 and its associated Figs. 2, 3, 4, 4a, and 5, is the device upon which claims 2 and 3 of the patent in suit are based. 6. Figs. 1, 2, 3, 4, 4a, and 5 of the patent in suit disclose a conventional form of change speed gear mechanism of the selective type. This gear shifting mechanism has the usual shifting rods, either one of which may be engaged by a lever arm attached to a longitudinally slidable and rotatable cross shaft disposed at right angles to the shifting rods. The opposite end of the cross shaft is provided with a yoke fixed thereto and having depending cam follower fingers thereon which engage the slot of a rotatable compound cam. The specific compound cam mechanism comprises a cam slot disposed around the periphery of the cam in a "zig-zag" path. The cam slot is also varied in depth. By reason of the particular construction of this slot, by simple rotary movement of this compound cam, the cam followers, by following the "zig-zag" path of the cam, rock the cross shaft, and, by coacting with the bottom of the cam slot, slidably shift the cross shaft. When the cross shaft is slidably shifted, it causes the lever arm to select either of the shiftable rods, and, when the cross shaft is rocked, it moves the selected rod longitudinally to mesh the selected gears.
This compound cam is rotated by the operator by means of a rotatable lever arm mounted on the steering wheel and which is operatively ...