Hamilton Beach Mfg. Co. v. P. A. Geier Co.

KOHLSAAT, Circuit Judge (after stating the facts as above). [1] An understanding of just what appellee claims as the invention in [435] suit may serve to simplify the task of unraveling the many apparent snarls in the theories of the parties hereto. It must be borne in mind that the claims in suit cover a combination patent embracing a number of elements, all of which, or their equivalents, are essential. Considering first claim 13, there is the hollow body, an electric motor supported therein, including the field structure and armature, a shifting brush holder composed of a rotatable spring support friction-ally engaged with the body of the device, an applicator, a vibratory support therefor connected up with the motor. Appellee’s counsel say in their supplemental brief: “Kirby found it necessary, for his particular purpose, to augment the normal frictional engagement by laterally acting spring pressure, and such augmented friction without doubt is the intent of his patent.” And again: “Kirby * * * was the first to equip and manufacture manually operable electric vibrators with the compact frictional or spring retained mounting for the adjustable brushes, whereby the speed of the propelling motor might instantly be varied by the user as conditions required.” Thus it appears that what the patentee claims is a self-contained hand vibrator, in which the brushes are so adjusted with reference to-the commutator and other parts as to cause the brushes to bear continuously, under constant pressure, in their adjusted positions until a change therefrom is desirable, against excessive vibrations and other disturbing influences. In this way the operator secures even advancement or backward movement of the brushes. This seems to result from the resilient material and arrangement of the brush holders and the frictional engagement at lips 19 of ends 17 against edges 20 of the elongated openings 21 through which the brush holder ends extend to be grasped by the operator for rotating the brush holder on its axis and in respect to the commutator and the field, whereby the speed of the motor is governed and a change in the vibration is obtained. The specification says, “The frictional engagement between the brush holder ends and stationary body section % firmly holds the brush holder in any position as set, and the ends are so disposed in respect to handle 22 of the device” that the operator may move the brush holder with his thumb and employ but one hand in manipulating the vibrator. The result attained and claimed as new was the even and easy manipulation of the brush holders back and forth across the commutator sections for speed regulation, as against methods in the prior art in which devices are shown for locking, sub modo, the movement of the brushes or retaining them in fixed positions, either arranged beforehand or operated by lever or otherwise into and out of what may be termed locked positions, requiring a step by step advancement or reversal. Thus, in the Slater patent, the adjustment of the brushes is regulated by rotating the brush holder arm, having a series of small cavities on its inner face, against a fixed spring pawl or detent in the frame, which detent is adapted to spring into and out of the cavities as required. Manifestly, the movement of the brushes would, in that case, be a kind of step by step, or articulated or jerky movement, if firm enough to hold against great vibratory action only when the detent [436] is in the cavities prepared for it. In any case it must lack the even, steady frictional movement of the patent in suit. Then, too, it is capable of acting in only a few — that is, some six — positions, while the Kirby frictional action is continuous throughout the whole range of brush movements. We are unable to say that there is any spring or frictional element in the actuation or movement of the Slater device. Evidently the Slater device has no vibratory connection with an applicator, nor does it appear that it ever went into any appreciable public use. The word “spring” as used in this device does not seem to imply resiliency, since the so-called spring pawl or detent is freed from the cavities through the interior wedging action of the manually operated brush holder arm. Appellant finds what it considers indications of speed adjustment in the ebonite ring of the Pengnet patent, which rotatably mounts the brushes of the motor in that device. This ring is provided with teeth which mesh with a cogwheel “so that the brushes may be adjusted by turning the cogwheel to rotate the ebonite ring H” thereby setting and holding the brushes in their effective positions. It is in no sense a speed regulator. The speed is regulated by a rheostat or a reducing gear. This ebonite ring, together with its connections, constituting the brush adjusting device is contained within the casing and evidently not intended to form a speed regulator. No applicator is shown. [2] The Kimble patent was granted September 26, 1911, upon an application filed May 15, 1905. While the patent was granted subsequently to that in suit, the application was prior. As we have often held,’ a patent speaks as an anticipation from the date of its issue and not from the date of filing the application. Both the Kimble patent and the alleged Kimble prior motor show no means for stationing the brushes against rotation other than manual action. The means for altering the speed of the armature consists of a sleeve, rotatable upon a hollow shaft and carrying the brushes which bear upon the commutator. The Adams-Randall vibrator is not self-contained. Its speed regulating provision is exterior of the case. It consists of varying sets of batteries or resistances which may be cut into and out of circuit. Manifestly it does not anticipate the device of the patent in suit, nor does the Wantz device so anticipate. Louis E. Samms, who is an agent for this latter device, says Wantz never has employed brush shifting apparatus for small motors, and that the brushes were equipped at the factory and made normally inaccessible.by the surrounding casing. [3] We have examined the other patents, prior uses and devices cited, and find none of them to anticipate the device of claim 13 when construed as above stated. Nor do we deem said claim, as construed by us, rendered invalid by reason of the character of the remaining and here unasserted claims of the patent. It covers features not included in any of the other claims. Moreover, we are not disposed to insist on a strict application of the principle invoked, except in cases where there is unquestionable evidence of duplication of claims. Such is not the case here. The same is true of claim 9. It omits the hollow body and the location therein of the motor, and differs from claim 13 in a number of respects, and is, in our judgment, sufficiently distinct from the [437] remaining claims to escape the condemnation imposed by appellant. It states the concept of claim 13 in a different and modified way. It calls for vibratory connection with the motor and the speed regulating arrangement comprising the brush holder having frictional supporting parts, and rotatably supported in respect to the field of the motor to vary the speed of the motor. Construed as above, we hold the claims in suit to be valid. The claims contemplate rather elements to effect a definite result than of a specific mechanical form, and should in our judgment be so construed. Appellant’s vibrator has appropriated the concept of Kirby as a unitary machine. “The constructions of defendant’s [appellant’s] vibrators and the vibrator of the Kirby patent in suit are mechanical equivalents for holding the brushes in selected positions of adjustment for the purposes desired,” said appellant’s expert in an unguarded moment. Notwithstanding the witness’ modification of this admission thereafter, the proposition seems to be true. Appellant’s two corrugated springs constitute the equivalent of opposing walls of the elongated openings 21 of appellee’s device, while the rotatable supporting disc is forced thereby against the recessed casing to frictionally engage the casing throughout all positions of adjustment of the brushes. This affords the frictional engagement intended by claim 9. The corrugations of appellant’s device serve little or no other purpose than to increase the friction so as to hold the brushes in any position. The inner frictional bearings of both devices against the interior of the frames, adjacent to the motor shaft, are identical, and the stationary mounting of the springs of both attain the same result. Appellant plainly has the spring-pressed frictional engagement of the brush holder with the casing. These springs with the casing comprise frictional supporting parts as covered by claim 9, and when associated with the insulating disc comprise a rotatable spring support frictionally engaged with the body as covered by claim 13. Both of the claims may be read upon appellant’s vibrator. We regard the rotation of the springs as the equivalent of the stationary mounting thereof in the devices under consideration. Appellant’s corrugated springs must be sufficiently resilient to hold the brush holder and its friction disc within its recess in the frame. By bearing upon the brushes, the frictional force of these springs, augmented by whatever of detaining action is produced by the corrugations, affords such frictional engagement on the disc side of the brush holder as will hold the brushes in any position of adj ustment. [4] There is no invention in the mere reversal of parts when the result produced is the same. Adam v. Folger, 120 Fed. 260, 56 C. C. A. 540. Appellee’s brushes are mounted upon a rotatable bowed spring which bears against the body or frame laterally for frictionally retaining the brushes in position. Appellant uses two nonrotatable springs which serve to conduct current to the brushes, while at the same time they supply frictional engagement between the annular, rotatable brush holder and the casing of the alleged infringing vibrator. The concept of the latter succeeded and was evidently suggested by the patent in suit. The Kirby vibrator provides a hand supported device with self-contained brush adjustment — self-contained speed controlling means, which, as [438] above stated, were new with Kirby. This, appellant has appropriated. Its utility the appropriation of the device by appellant serves to concede. The decree of the District Court is affirmed.