J. F. Rowley Co. v. Columbus Pharmacal Co.

220 F. 127, 136 C.C.A. 81, 1915 U.S. App. LEXIS 2450
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 5, 1915
DocketNo. 2512
StatusPublished
Cited by7 cases

This text of 220 F. 127 (J. F. Rowley Co. v. Columbus Pharmacal Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
J. F. Rowley Co. v. Columbus Pharmacal Co., 220 F. 127, 136 C.C.A. 81, 1915 U.S. App. LEXIS 2450 (6th Cir. 1915).

Opinion

DENISON, Circuit Judge.

In this infringement suit, based on patent No. 644,464, issued February 27, 1900, to Rowley, for an “artificial limb suspender,” the court below, assuming the validity of the patent, thought the claims must be so limited that there would be no infringement, and dismissed the bill. The plaintiff below, the owner of the patent, appeals.

While the ultimate disposition of the case must depend upon the construction of the claim in respect to an express limitation found therein, this in turn depends in part upon the advance which Rowley made over existing knowledge; and the inquiry may weli be approached along the road adopted in Davis Co. v. New Departure Co. (C. C. A. 6, October 16, 1914) 217 Fed. 775, - C. C. A. -. This is [129]*129to inquire: First, what was Rowley’s real advanced step or new concept? Second, is defendant’s structure within the limits of such advance? And, third, if so, do the terms of the claim, when fairly read, require such an interpretation as to sanction defendant’s appropriation of Rowley’s idea?

[1] The controversy has to do with artificial legs for amputations above the knee, and comprising a thigh section, in the upper open socket end of which the leg stump is inserted, and, pivoted to the thigh section at its lower end, what is called in the patent the leg section (but which we hereafter call the shin), comprising the foot and the leg below the knee. To approximate natural conditions, two things must be accomplished: The thigh must be held to the wearer’s leg stump and body so as-to permit free motion at the waist and at the hip joint; and also there must be some means of controlling the action of the shin in addition to its mere gravity-caused oscillation. To hold the thigh in position, it was natural to carry over the shoulder a strap fastened to the front and rear of the thigh at its top, and as the front and rear straps would slacken and tighten with the motions of walking or sitting, and as the resulting chafing or rubbing over the shoulder would be troublesome, it would seem that this supporting strap might be, at the bottom, a continuous loop attached to the top of the thigh on one side and sliding through its point of attachment, so that the strap would remain always tight. This thought was elaborated by making the lower part of the strap in the form of a cord which would slide easily through guides or loops at the point of attachment, by providing two of such sliding attachments for the cord forward and back of the side center of the top of the thigh, and by doubling this arrangement on the other side of the thigh, so that there were either two separate loops and straps passing over the shoulder, or so that the strap depending from the shoulder was bifurcated; one section slidingly attached to the outside, and the other to the inside of the thigh near its top. All this had been done by Collins, in 1884 (patent No. 295,675), and by Winkley in 1887 (patent No. 371,239), as well as by others. These devices were carrying straps, and carrying straps only, and in each embodiment the carrying strap was not connected to the shin, save by that indirect connection which was inherent in the knee joint, and whereby, when the thigh was lifted and moved, the shin would swing by the force of gravity, sometimes aided by interposed flexor and extensor spring connections.

To accomplish the other necessary object, viz., control of the shin, various elastic and spring connections between thigh and shin had been provided, and a cord or strap attached directly to the shin and running upward over the thigh was not new. We cannot find that the idea of operating the shin through such cord by the voluntary movement of the upper part of the body had ever been clearly disclosed. Reich-enbach, by patent No. 41,238 of 1864, had such a cord attached to a belt, and the belt was connected to a strap over the shoulder; but this seems to be a mere carrying device, and Reichenbach depended on the motion of the thigh to affect the shin. In the construction illustrated, it is possible that lifting the shoulder would have a tendency [130]*130through this cord to swing the shin forward, but that is doubtful; and the idea never occurred to Reichenbach, so far as his specification indicates. Regran, by patent No. 52,057, of 1866, provided a cord attached to the front of the shin carried upward over the thigh and attached to a “breast plate,” which in turn was held in position by a bandage passing under one and over the other shoulder. This cord and breast plate were entirely disconnected and separate from the carrying suspender. Regran’s construction was more likely to permit some control of the shin through a shoulder movement than was Reichenbach’s; but this idea had not occurred to Regran, unless he refers to that function when he says that his cord and his breast plate and shoulder bandage press the leg and hold it firm, “and they also greatly assist in the movements of the leg by the movements of the body of the wearer.” Monroe, by patent No. 58,351, shows a flexible strap connected to the shin at front and sides, and passing up the front of the thigh; but he says that these straps are to sustain the weight of the limb, and that they are “firmly secured” to the thigh, so thát obviously there cannot be any shin effect from a shoulder movement. Frees, No. 401,426, comes closer than any one else; but the motion of what corresponds to the lower loop of his strap was automatic, rather than voluntary, and if this motion - operated the shin by the connection shown, that function was only vaguely disclosed, and was not known to Frees. He calls the connection a spring. We are inclined to think that this function of shin control through the raising of the shoulder cannot be found in any earlier device, except by uniting thereto the ideas first disclosed by Rowley; but, however that may be, certain it is that no one of these shin operating cords had ever been attached to or made unitary with the carrying strap passing over the shoulder.

In 1899, Rowley had been engaged for many years in the manufacture of artificial legs, and was actually familiar with all the devices on the market, and with the old patents which have been mentioned. It occurred to him that he could unite into one device the old carrying strap and an operating strap for the shin. He did this by cutting off the shin strap of Regran or Monroe just above the knee and throwing away all of it above that point, and at that point slidingly connecting it to the loop of the carrying strap, which itself was slidingly connected to the thigh. See his Figs. 1 and 2, below. Obviously, this amounted to taking the lower free end of .the loop of the carrying suspender, between its front and rear points of sliding attachment to the thigh, extending or carrying this loop downward, and by sliding connection attaching it to the front of the shin at a point far enough below the knee so that a pull would be operative to straighten the knee. In the form which he showed in his drawing, the sliding connection between the carrying suspender and the thigh consisted of leather loops or guides through which the cord which formed the lower loop part of the suspender would easily slide, and the sliding connection between the carrying suspender and the shin consisted of a pulley at the upper end of the shin strap, through which pulley the carrying cord also passed intermediate of its front and rear attach[131]*131ments to the thigh section.1

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Cite This Page — Counsel Stack

Bluebook (online)
220 F. 127, 136 C.C.A. 81, 1915 U.S. App. LEXIS 2450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/j-f-rowley-co-v-columbus-pharmacal-co-ca6-1915.