Appeal from the District Court of the United States for the Eastern District of Pennsylvania; William H. Kirkpatrick, Judge.
Before BUFFINGTON and DAVIS, Circuit Judges, and JOHNSON, District Judge.
BUFFINGTON, Circuit Judge.
This case concerns the instantaneous transfer of the speed power of a swiftly revolving shaft to an at-rest machine, without abrasion or wrecking of such at-rest machine. This instananeous transmission and reception of power may best be appreciated if some future invention - as no doubt will eventually be done - should make it possible, by the application of brakes, to instantaneously stop an automobile traveling at the rate of say seventy miles an hour. Of course, the two problems involve different facts, forces, and agencies, but in the instantaneous absorption of shock forces the two situations are mechanically analogous. It will therefore be seen that in this patent case we face a major mechanical problem.
In practice a large row of sewing machines got their power from the swift rotating shaft by means of an exposed belt connection controlled by the operator. Such operators, the proofs R 106 show, if the women were not alert, "would have their fingers caught in the transmission, their hair torn or their dresses torn." As lint from sewing was present, this made the conditions unsanitary. Such method, which is styled the indirect drive, consisted of the main revolving shaft extending along a row of sewing machines. The latter were each provided with a counter shaft with a clutch device which was belted to the driving shaft and also to each sewing machine by a second belt. In addition to its danger incidents, the device was hampered by another incident, namely, the slow stopping of its sewing. This objection is thus correctly summarized in the patentee's brief: "A sewing machine runs fast, for example, at the rate of three or four inches per second. Many parts of clothing are small and in the case of them and in other cases, it is essential to stop the machine quickly at the end of the work or to turn it. If this is not done the machine will make a chain of looped threads which is apt to break the thread in the shuttle of the machine which requires stopping and re-threading the shuttle with loss of time of the operator and with defective work, which may have to be ripped out and done over."
That these grave dangers were recognized in the art is evidenced in the statement of Herbert Corrall in his American patent No. 1,147,377, granted July 20, 1915, to his assignee, the defendant, Singer Sewing Machine Company, a corporation of New Jersey, for a sewing machine driving device:
"This invention relates particularly to an improvement in under drivers for use with power benches carrying a number of sewing machines driven from a rotating shaft beneath, and it has for its object to equip a bench with all the moving parts, such as shafts, pulleys and belts fully inclosed so that the operators are guarded from danger of accident, while also insuring that on stopping any one of the sewing machines the belt and driving pulley for that machine will also be stopped. * * *
"A guard or shield secured to the under side of the bench protects the operator from the pulley when rotating, and a tubular nonrotating sleeve extends over each length of the shaft between such guard or shield and the adjacent under driver."
In that connection we note that the avowed, and indeed sole stated, purpose of Corrall was to protect the operator from danger by shielding the operating parts.
The Corrall device, although the patent was applied for and was owned by the Singer Company, the defendant, and though that company had ample resources, was never placed on the American market. In the eighteen years succeeding its application, the Singer Company never used it, but continued to use the old indirect method and means. In that regard we have not overlooked the fact that the Corrall device went into extensive use in England, where it was manufactured by an affiliated British Company of which Corrall, the inventor, was a director. There is no testimony that the machine as there made was capable of instantaneous stoppage, and there is convincing testimony that when one sewing machine got out of order, the main shaft and all the sewing machines operating from that main shaft had to be stopped. Thus the witness Jones, who was a manufacturer of machine parts and for fifteen years familiar with the Corrall machines since he was called on to repair, testified: "At certain times its failed to engage or disengage when the operator by means of the treadle intended that it should do so, and the only way to correct that when it happened was to stop the line shaft to make proper repairs and adjustments. This line shaft drove machines other than the one where the failure might occur, so that the whole number of machines driven by the line shaft would be stopped while a particular one was corrected. In the event that the clutch failed to disengage, the sewing machine would continue to run even though the operator desired to stop it. This would so affect the sewing that the operator was working on that she would have to run the material off of the needle and very often the case was that they jammed the bobbin case and loaded it up with stitch cotton."
As to the noninstantaneous stoppage of the machine, his testimony was: "When the Corrall apparatus was working properly, the time required to stop the sewing machine, in distance of stitches or revolutions, would be anything from a quarter of an inch to three-quarters of an inch - depending on the length of the stitching. It would be correct then to say that, with the Corrall mechanism, the machine did not stop instantaneously; and this failure to stop instantaneously continued the sewing beyond the point at which the operator desired to stop it."
He testified there were some fourteen thousand Corrall machines in use in England, but that "all of the troubles encountered in connection with the Corrall transmitter were in the screw mechanism (the cam) and the braking, due to not stopping at the correct time it should." We find no testimony in the record controverting the above statement that the machine did not stop at the correct time it should. Later on we comment on this basic feature of instantaneous stopping and how and by whom this all-important objection was overcome. The witness testified that he knew of two factories - naming them - where the Corrall device was thrown out and the companies went back to the old indirect drive method. Lewis, a dealer in secondhand machines, testified he found them no success whatever: that there is no market for secondhand Corrall machines; that they required "a big staff of mainteance men." He testified that except in what are called "co-operative factories," which have numbers of mechanics at call, the Corrall tables have gone out of use for ten years. He referred to another large concern "that used to use Corrall tables, but they threw them on the scrap heap and went back to the indirect drive, using probably about four thousand sewing machines all told." He testified further: "The other concern that scrapped that table was World Wear, Birmingham, whose transmitters were replaced by those of Wilcox and Gibbs, Wheeler and Wilson, and Jones, and various other makes of two-speed transmitters. In the cut showing a typical scene in the plant, there is shown a scrap heap in a considerable amount, probably over a hundred beneches. Lewis said that they looked like old iron; that they weren't new or relatively new, but that they could have been replaced, he supposed, with little parts, to have them fitted up all right - but they were of no use. The firm didn't like that type of machinery and that is the reason why it was on the scrap heap because it wasn't practical."
From the above - and we find no testimony to the contrary - we are constrained to hold that the Corrall machine did not satisfy the British market; that it did not effect instantaneous stoppage, and inferentially that for these reasons the Singer Company, the patentee defendant, though amply able, did not attempt to put it on the American market; and that it had no effect on the art, and the Singer Company itself, as we have seen, for eighteen years after its grant, continued to follow the indirect system device.
Continuing the status of the art, it appears that Lewis Frankel had one of the largest men's clothing factories in the country and was using therein "the old belt style tables, belt-driven Singer tales," such as had been in use for twenty to twenty-five years.
We now turn to the proofs showing the attmepts to improve the art. They show that Frankel started in 1912 a ten years expensive, futile and unsuccessful effort to do so. His superintendent, Axilrod, told him of the Jones direct drive, an English direct drive. He placed six of them in his factory and in a week they collapsed. He then directed Axilrod to go ahead, irrespective of cost, and devise a direct drive device. This Axilrod did, with the result he obtained patent No. 1,188,385 on June 27, 1916. As showing the desire of the art to improve and its failure to do so, the proof is: "Frankel formed a company around 1916 and called it the Safety Machine Company, and at that time it was heralded all over the country as a progressive step, particularly by the insurance companies, and particularly the liability insurance companies - they were very much interested in the project because they felt it would reduce a lot of accidents - and in 1917, in January, Frankel received a certificate of approval from the State of Pennsylvania, which was the first certificate of approval for safeguards for sewing machine devices. Of these Axilrod tables, probably thirty or forty thousand were sold principally in the East, but they did not work satisfactorily."
The General Electric Company took up the problem of the lubrication of the Axilrod device, but "they gave the job up as a bad job, after spending considerable money." Referring to the Axilrod device, the testimony of Frankel was:
"Q. Then the tables that preceded yours, as asked before, the Axilrod table and the Corrall table, as far as you know, from the testimony and your own knowledge of the Axilrod table and the Corrall table, did not stand up and do its work for an apprecible length of time, is that right? A. To my knowledge, it did not.
"Q. Just to get some idea of the thing, when you had completed your machine, during the time you were completing it, you had dealt with a great many Axilrod tables? A. Yes.
"Q. Can you give any idea how many of them were returned and that you had to dispose of?A. I do not know actually in numbers, I know we took two hundred out here and two hundred out there, but if that gives you any idea, I did scrap three railroad cars full of clutches at one time.
"Q. That gives me an idea of quite a number of them. So that actually these three carloads were dispensed with by you? A. Yes, by me personally."
Frankel in 1919 hired one Voigt and set him to work and the evidence as to what he did and the commercial success of his efforts is thus shown in the proofs: "Frankel hired him in 1919 and gave him carte blanche orders - money no object - to perfect this transmitter, which Voigt did in 1921 or 1922. Plaintiffs spent upwards of three hundred thousand dollars before they ever saw a cent back. Axilrod tables were replaced by these new Voigt tables. Upwards of one hundred and fifty thousand Voigt transmitters were sold to the present date. A partial list of Frankel's customers shows upwards of a thousand names of the leading manufacturers in all industries using sewing machines. Each transmitter costs about fifty dollars with the motors and accessories."
In pursuance thereof, patent No. 1,431,198, issued to Louis Frankel, assignee of Voigt, was granted for a transmission apparatus.
As we have seen, the patent to Corrall was classified as a "Sewing machine driving device," while that of Voigt was called a "Transmission apparatus." But in the Voigt patent the Patent Office did not cite it against Voigt. Without at this point describing the means Voigt used in combination, we inquire what progress and improvement in the art did Voigt make as shown by the proofs. In that regard he testified, and there is no proof to the contrary, as follows:
"Q. * * * At about what rate does the fabric travel through an ordinary machine of the kind with which this patented device is intended for use? About how many yards a minute does it sew? A. Well, I would say that the average speed of a sewing machine is about three thousand stitches per minute.
"Q. In yards how much is that per minute? A. I would say at the rate of eighteen stitches per inch. This would amount to travel of approximately six yards per minute, assuming that the ...