Brunswick-Balke-Collender Co. v. Klumpp

Second Circuit

Brunswick-Balke-Collender Co. v. Klumpp

131 F. 255, 65 C.C.A. 447, 1904 U.S. App. LEXIS 4292

CourtCourt of Appeals for the Second Circuit

DecidedMay 17, 1904

DocketNo. 184

StatusPublished

Cited by1 cases

This text of 131 F. 255 (Brunswick-Balke-Collender Co. v. Klumpp) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Brunswick-Balke-Collender Co. v. Klumpp, 131 F. 255, 65 C.C.A. 447, 1904 U.S. App. LEXIS 4292 (2d Cir. 1904).

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Opinion

EACOMBE, Circuit Judge.

The suit was brought upon letters patent No. 599,447, granted February 22, 1898, to complainant, as assignee of Emil Reisky, for “improvement in bowling apparatus.” It was heard upon pleadings and proofs, and the bill dismissed for lack of patentable invention. Appeal was taken to this court, and decree was reversed. Our opinion is reported in 111 Fed. 904, 50 C. C. A. 61. It sufficiently sets forth the specifications and the claim in controversy. We concurred with the judge who heard the cause in the conclusion that the “improvement” was one which should have been obvious to an ordinary skilled mechanic, but were constrained by the testimony to hold that there was patentable invention. That testimony is set forth in the opinion. It showed that the desirability •of retarding the ball as it neared the home terminal of the returnway had been appreciated for many years; that many different devices to secure that result had been suggested, but that apparently no one ■of those who sought to secure the result had adopted the seemingly •obvious one of making the ball reach the home terminal on an up grade. Had any such method been disclosed in the earlier art, the ■original decision would have been affirmed. It now appears that, apprehending proof of such a structure antedating the patent, the patentee has filed a disclaimer which recites that in the prior art there were ball returnways with “an upgrade near the player’s end, merging into the terminal,” and disclaims such part of the claim “as would include a returnway by which the homing of the ball was not accelerated.” The bill presents the disclaimer as well as the patent, and, with the concession that in the prior art the returning ball had been retarded by an up grade, the case may properly be disposed of on demurrer; and, for the reasons set forth in our former opinion, we have reached the conclusion that the patent discloses no patentable invention, except possibly as to minor details of construction which are subject of other claims, not here in controversy.

The decree is affirmed, with costs.

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EACOMBE, Circuit Judge.

The suit was brought upon letters patent No. 599,447, granted February 22, 1898, to complainant, as assignee of Emil Reisky, for “improvement in bowling apparatus.” It was heard upon pleadings and proofs, and the bill dismissed for lack of patentable invention. Appeal was taken to this court, and decree was reversed. Our opinion is reported in 111 Fed. 904, 50 C. C. A. 61. It sufficiently sets forth the specifications and the claim in controversy. We concurred with the judge who heard the cause in the conclusion that the “improvement” was one which should have been obvious to an ordinary skilled mechanic, but were constrained by the testimony to hold that there was patentable invention. That testimony is set forth in the opinion. It showed that the desirability •of retarding the ball as it neared the home terminal of the returnway had been appreciated for many years; that many different devices to secure that result had been suggested, but that apparently no one ■of those who sought to secure the result had adopted the seemingly •obvious one of making the ball reach the home terminal on an up grade. Had any such method been disclosed in the earlier art, the ■original decision would have been affirmed. It now appears that, apprehending proof of such a structure antedating the patent, the patentee has filed a disclaimer which recites that in the prior art there were ball returnways with “an upgrade near the player’s end, merging into the terminal,” and disclaims such part of the claim “as would include a returnway by which the homing of the ball was not accelerated.” The bill presents the disclaimer as well as the patent, and, with the concession that in the prior art the returning ball had been retarded by an up grade, the case may properly be disposed of on demurrer; and, for the reasons set forth in our former opinion, we have reached the conclusion that the patent discloses no patentable invention, except possibly as to minor details of construction which are subject of other claims, not here in controversy.

The decree is affirmed, with costs.

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131 F. 255, 65 C.C.A. 447, 1904 U.S. App. LEXIS 4292, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brunswick-balke-collender-co-v-klumpp-ca2-1904.

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