Home/U.S. Circuit Court for the Northern District of Illnois/Mast, Foos & Co. v. Stover Mfg. Co.

Mast, Foos & Co. v. Stover Mfg. Co.

85 F. 782, 1897 U.S. App. LEXIS 3040
CourtU.S. Circuit Court for the Northern District of Illnois
DecidedJanuary 31, 1897
StatusPublished

This text of 85 F. 782 (Mast, Foos & Co. v. Stover Mfg. Co.) is published on Counsel Stack Legal Research, covering U.S. Circuit Court for the Northern District of Illnois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mast, Foos & Co. v. Stover Mfg. Co., 85 F. 782, 1897 U.S. App. LEXIS 3040 (circtndil 1897).

Opinion

GROSSCUP, District Judge.

Motion for injunction to restrain infringement of letters patent No. 433,531, relating to a new and useful improvement in windmills. The patent was before the United States circuit court of appeals for the Eighth circuit, where its validity was upheld, and a device almost precisely like that of the defendant in this case was held to be an infringement. Mast, Foos & Co. v. Dempster Mill Mfg. Co., 82 Fed. 327. The majority of the court held that the invention consists in the combination of an internal toothed spur gear with any suitable pinion, wind shaft, wrist pin, pitman, and pump rod of a windmill. Within the ruling in that case relating to the scope pf the patent, the device of the defendant in the case under consideration is clearly an infringement

The only question left is whether this court shall follow the judg[783]*783mont of (he circuit court of appeals both with respect to the validity of the patent and its scope. The rule laid down bv the circuit court of appeals for the Seventh circuit (Electric Mfg. Co. v. Edison Electric Light Co., 18 U. S. App. 641, 10 C. C. A. 106, and 61 Fed. 834) is as follows:

“That where the validity of a patent has been sustained by prior adjudication, upon final hearing, and after bona lido and strenuous contest, tlie matter of its validity upon a motion for a, preliminary injunction is no longer at large, all defenses, except that of infringement, being reserved to tlie final hearing, subject, however, to the single exception that, where a new defense is interposed, the evidence to support it must be so cogent and persuasive as to impress the court with the conviction that, if it had been presented and considered in the fonnor case, it would probably have availed to a contrary conclusion.”

Under (his rule, the preliminary injunction should unquestionably go, unless the new evidence is so cogent and persuasive as to impress the court with the conviction that, if it had been presented and considered in the former case, the decision there would have been oilier Ilian it was.

In the case before the court of appeals for the Eighth circuit it was dearly shown that windmills having the precise combination of the complainant’s patent, except that the driving gear was external instead of internal, had been long in prior use. 'The single advance said to have been made in the art by the Martin patent was the substitution of the internal for the external gear. In this lies the gist of his invention, if any invention there be. It was also shown in that cause that internal gear wheels had been long in previous use to drive analogous machines, such as machines for mowing, for sawing wood, and for other purposes. But the court held that the adaptation or transference from these other uses evinced sufficient inventiveness to make it patentable. There was in that case an attempt to prove a prior use of the internal gear in windmills, but such fact was not established to the satisfaction of the court. In the case before that court, therefore, Martin was shown to have been the first man to use an internal gear to drive windmills.

Without questioning the soundness of the court’s judgment upon the question of whether patentable invention was shown, I can on this motion only inquire whether, in all probability, that judgment would have been changed had credible new evidence-such as is before me — been before the court of appeals. That evidence goes on two ,points: (1) That the internal gear feature of the Martin patent was anticipated in previous patents; (2) that it was anticipated by prior use.

I have looked carefully through all previous patents brought specifically to my attention as not having been in tlie case in the Eighth circuit, and am convinced that the internal gear shown in each of them had no function relating to the driving of the shaft or the creation of reciprocal action. The function of tlie internal gear appliance, in nearly all these cases, was merely to keep the wheel in the wind. I do not feel that the presence of this information in the mind of the court of appeals would have changed its judgment respecting the validity of the patent.

The device principally relied upon to show prior use is that of the Perkins mill, manufactured at Mishawaka, Ind. It is not disputed [784]*784that this mill, in fact, antedates the Martin device; the inquiry simply is whether it, in the sense of the patent law, anticipates' the Martin device. The Martin device is described by the inventor as follows:

“The invention consists, essentially, of an improved back-gear organization, involving an external toothed pinion and an internal toothed spur gear, the pinion being mounted on the wheel shaft, and the gear having formed on or connected with the wrist pin to which the operating pitman is attached, whereby the speed of the main shaft as applied to the wrist pin and pitman is reduced, and whereby, also,- all the pounding and lost motion is prevented as the pitman connection passes over the center, and changes from a pushing to a pulling action. This object is accomplished by the fact that a plurality of the pinion teeth are always engaged with the internal spur gear, resulting in giving a perfectly uniform and smooth and noiseless reciprocating motion to the actuating rod, thereby prolonging the 'life of the machine by saving it from constant jarring, and preventing wear and tear.
“In the accompanying drawing, forming a part of this specification, and on which like reference letters indicate corresponding parts, the figure represents a side elevation of my improved organization, with some of the parts in sec tion,'showing the same applied to any approved type of windmill structure.
“The letter A designates a cast frame or structure carried by the upper part of the turntable of the windmill, of which B refers to one of the bearing blocks, and O to an arm to which is pivoted the pitman, D. This pitman is triangular, and of the type on the market in windmills manufactured by my assignees of this invention. To onp extremity of this pitman is attached a pitman bar, E, the other end of which bar is fitted upon a wrist pin, E, carried by the internal gear, 6. This gear may be of any approved type, so long as it is provided with internal teeth. In the present case it is constructed with a disk, H, having a hub, I, and a rim, J. It is mounted upon a stud or shaft, K, carried.by the bearing block, B.
“(No Model.)
S. W. Martin. “Windmill.
“No. 433,531.
Patented Aug. 5, 1890.

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Related

Electric Manuf'g Co. v. Edison Electric Light Co.
61 F. 834 (Seventh Circuit, 1894)
Mast, Foos & Co. v. Dempster Mill Manuf'g Co.
82 F. 327 (Eighth Circuit, 1897)

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Bluebook (online)
85 F. 782, 1897 U.S. App. LEXIS 3040, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mast-foos-co-v-stover-mfg-co-circtndil-1897.