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March 12, 1941


The opinion of the court was delivered by: KIRKPATRICK

This is a suit for infringement of letters patent No. 1,724,697 to Dobrick.

For a number of reasons, when connections in copper tubing are to be made, the most satisfactory results can be obtained by flaring the ends of the tubes. This is the principal use of the patented device, which is called a flaring tool. It is intended to be carried in a repairman's kit. As a result of the increase in the use of copper tubing in home refrigerating apparatus, water piping, gas stove assemblies, and in the automotive and airplane fields, flaring tools have become ordinary service equipment.

 Claims 1, 2, 5, 9, and 10 of the patent are in suit. Infringement is denied, but there is very little question that the claims are infringed by the defendant's device, and I so find.

 The claims generally are for a combination of a pair of clamping bars between which the tube to be flared is held tightly through one of a number of different sized holes, and a yoke loosely mounted upon the clamping bars so that it can be moved to a position immediately over the tube. The yoke has a threaded, descending member which by reason of its pointed end seats itself accurately in the end of the tube, and at its opposite side inwardly projecting flanges which clutch the clamping bars. As the flaring member is screwed down into the end of the tube, the whole assembly is pulled together and the flanges of the yoke, holding the clamping bars fast, form a base against which the thrust of the flaring member on the tube is exerted.

 The defendant has raised certain issues of priority of invention, prior public use, laches and abandonment. All of these issues I have decided in the plaintiff's favor and will discuss them at the end of this opinion.

 The remaining issue is the validity of the patent, the question being invention over the prior art. My conclusion is that the patent is valid.

 The major elements of the combination claimed are the yoke and the clamping bars. It must be conceded that there is nothing new, or at least nothing showing any inventive improvement, about the clamping bars of the patent. Clamping bars with graduated holes for grasping various sizes of pipe appear in half a dozen earlier patents, for example, Harburg, 1,451,727. Any advance which the clamping bars of the patent may disclose over these is nothing more than ordinary mechanical improvement. The loose yoke, movable in any direction, and resisting the thrust of its flaring member by the inturned flanges does not appear in any prior device.

 The defendant argues that the combination is open to the objection that what it discloses is nothing more than an improvement of one part of an old combination, giving no right to claim the whole. Lincoln Engineering Co. v. Stewart-Warner Corp., 303 U.S. 545, 58, S. Ct. 662, 82 L. Ed. 1008. This rule, however, does not apply in cases where, by reason of a change in one element, a new mode of co-operation between the two is achieved. In the present patent the changes in the yoke cause it to coact with the bars in a new mode.

 With a yoke free to move in any direction about the clamping bars, the conical end of the flaring tool naturally falls into the exact center of the end of the pipe without the necessity of mechanical adjustment and thus "centers itself." This is unquestionably a matter of real importance. If the point of the flaring tool is not accurately seated in the middle of the tube when the force is exerted, you will get a lopsided flare; and a connection made with a tube which is not accurately and uniformly flared is bound to be leaky and unsatisfactory. This strikes me as a new functional relationship between the elements of the combination. I cannot find a single structure of the prior art in which it appears. Of course, the devices of the prior art do provide for accurate flaring, but in an entirely different way. Thus the Rudolph device, which was the one generally sold by the plaintiff before it adopted the tool of the patent, was a rigid assemblage with the member corresponding to the yoke made integral with the member corresponding to the clamping bars. It was in a sense a precision tool, and had to be very accurately machined to make perfect flares. To provide for various sizes of tubing, quite a number of small semicircular pieces or dies were supplied, which were inserted into the rigid frame below the flaring tool to hold the tube.

 Changing from one size to another involved rather careful manipulation if the tube was to be accurately set for flaring.

 There are prior art devices in which the yoke is movable, but not in all directions. For example, in Hartsock, No. 1,571,267, the flaring tool swings on a pivot through an arc and the clamping bars are constructed so that the holes for the tubes will come precisely in its arc. Here again most of the positioning of the flaring tool is accomplished by the rigid construction. The same is largely true of the Conley and Walters patents.

 What at first glance appears to be the closest of the prior art patents having a movable yoke is the Hatton patent, No. 1,101,434. But an examination of this structure, both as described in the patent drawings and an exemplified by the model produced at the trial, shows that, while the yoke is intended to be detachable, there is not the slightest indication that when the power screw is in operation and the flaring tool descending, it is to have any loose play which will assist in centering the flaring tool. The yoke must first be slid along the clamping bars (it cannot be moved laterally) to a position in which the flaring tool will be exactly centered over the head of the tube. It then must be rigidly held in place by screws, otherwise it will slip and the device will pull apart under pressure. The whole operation is fundamentally different from that of the Dobrick patent. In addition, though not of controlling importance, it may be noted that the Hatton patent was a shop tool intended to be affixed to a table.

 The construction disclosed by the Dobrick patent gave the art for the first time a portable tool of simple construction and few parts, not requiring any particular skill to operate, and competent to produce an absolute accurate flare without the necessity of precision construction. It presents a combination, the elements of which function cooperatively in a new manner. This new manner of operation produces a definitely useful result, as plainly demonstrated by the manner in ...

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