Standard Cartridge Co. v. Peters Cartridge Co.

77 F. 630, 23 C.C.A. 367, 1896 U.S. App. LEXIS 2278
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 8, 1896
DocketNo. 398
StatusPublished
Cited by28 cases

This text of 77 F. 630 (Standard Cartridge Co. v. Peters Cartridge 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
Standard Cartridge Co. v. Peters Cartridge Co., 77 F. 630, 23 C.C.A. 367, 1896 U.S. App. LEXIS 2278 (6th Cir. 1896).

Opinion

LURTON, Circuit Judge:

Having made the foregoing statement of facts, the opinion of the court was delivered by

Though the issue is one of priority of invention between Charles S. Hisey and George Ligowsky, its solution under this proceeding does not depend upon the mere preponderance of evidence. That department of government charged with the duty of originally hearing and determining questions of priority arising under conflicting applications of inventors has, upon evidence and full consideration, determined the controversy between those parties against the contention of the present complainants, and awarded a patent to the assignee of George Ligowsky. But for the provision made by congress, and found in section 4915 of the Revised Statutes, the conclusion of the executive department of government, that Hisey was not entitled to a patent upon improvements which he claims to have invented in cartridge loading machines, would be fatal to his claim. The statute referred to is the sole foundation for the jurisdiction now invoked. In considering the weight to be attached to the action of the patent office in a like case, where there had been an interference issue between rival claimants of the same invention, the supreme court said:

“It is an application to the court to set aside the action of one of the executive departments of the government. The one charged with the administration of the patent system had finished its investigations, and made its determination, with respect to the question of priority of invention. That determination gave to the defendant the exclusive rights of a patentee. A new proceeding is instituted in the courts, — a proceeding to set aside the conclusions reached by the administrative department, and to give to the plaintiff the rights there awarded-[633]*633to the defendant. It is something' in the nature of a suit to set aside a Judgment, and, as such, is not to be sustained hy a mere preponderance of evidence. * * * Upon principle and authority, therefore, it must he laid down as a rule that, where the question decided in the patent office is one between contesting parties as to priority of invention, the decision there made must be accepted as controlling upon that question of fact in any subsequent suit between the same parties, unless the contrary is established by testimony which in character and amount carries thorough conviction.” Morgan v. Daniels, 153 U. S. 124, 125, 14 Sup. Ct. 773.

Tested by this rule, have the complainants made such a case as to justify ibis court in canceling the patent issued to Ligowski’s assignee, and requiring one to be issued to Hisey instead?

Machines for automatically loading cartridge shells with powder, wads, and shot had been long known in the art before either Hisey or Ligowsky claim to have made the improvements now in controversy. Many patents for such cartridge loading machines have been'filed in this record, to illustrate the history of the art before the attention of either was attracted to such machines. In most of these patents, cartridge shells were loaded with powder, shot, and wads automatically, and then ejected from the machine. In most, if not all, of them, to which attention has been particularly called, the carrier conveying the empty shell to the different loading tools traversed a circular path. The location of the loading tools necessarily conformed to the structure of the shell carrier, and were therefore arranged in a cluster. The circular arrangement of the loading tools, and the circular character of the table or disk carrying the empty shells to the loading tools in proper succession, characterized all of the machines of the old art, and are therefore known as “round table machines.” The radical point of departure from this old round table type of machine, covered by the conflicting claims put in issue hy the interference proceeding, lies in the substitution of an endless belt, band, or carrier, suitably actuated, and provided with shell cases secured thereto, and projecting therefrom, for the old round table disk carrier of the old type of machine. The change from a rigid disk carrier, traversing a circular path, to an endless belt carrier, moving in a straight line, made necessary a readjustment of the location of the loading tools, and their arrangement in a straight line above the belt shell carrier, as well as the adaptation of a device for delivering the shells properly located in the path of the carrier. This substitution of an endless belt shell carrier, properly actuated, for the old round table carrier, and the necessary relocation and proper adaptation of the loading tools and other devices already known to the art to the new form of carrier, constituted the real substance of the improvements on the old machines described in the interference issues.

The case for Hisey, as the first and sole inventor of these improvements on the old type of machine, is substantially this:

First. That, during the summer and fall of 1887, he had been engaged in overhauling and truing up two round table machines for the Peters Cartridge' Company,, and in constructing two other [634]*634machines, of the round table type, for the same company. He claimed that he made many improvements in the mechanism of these machines, which claim, as we shall hereafter see, became subsequently the subject of another interference contest between himself and G-. M. Peters, of the Peters Cartridge Company, the issues in that contest being finally decided against him. He says that the knowledge thus acquired of the clumsiness and slowness of these old round table machines led him to thinking, and that in the month of April, 1888, the idea of an endless chain carrier occurred to him, being suggested by “observing a bicycle go by that had an endless chain to transmit the power.” He says he followed the thought up by experiment with a chain “on a prismatic disk, * * * to view its motion.” He then says: “After determining in my own mind that I could make it work, I made a drawing showing the connections as they occurred to me, having its tools on a table above the chain, and in line with the chain, and showing a device for intermittently moving the chain.”

'Second. The drawing mentioned is produced and filed, and bears date May 10, 1888. It is signed by Hisey, as inventor, and by George Ligowsky and Martha Ligowsky, as witnesses. The word “Inventor,” above the signature of Hisey, was written by George Ligowsky, and the word “Witness,” above the signatures of George

[635]*635Ligowsky and Martha Ligowsky, is also in the nandwriting of George ligowsky. As to the authenticity of this original Hisey drawing, there is no dispute.

Third. That in August, 1889, complete detailed working drawings were made, and an organized machine shortly thereafter constructed.

Fourth. That September 8, 1889, an application was filed in the patent office for a patent upon these improvements, applied to a cartridge loading machine for loading bullet cartridges; - and on June ¿1, 1889, he filed a second application for the same novel features applied to a machine for loading cartridges with shot.

Fifth. That photographs of the organized machine constructed in the summer and fall of 1888, at Berlin, Germany, by Hisey, or under his plans and direction, were sent from Berlin, in January, 1889, by one Armin Tenner, for whom the machine was built, to George Ligowsky, at Cincinnati.

Sixth.

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Bluebook (online)
77 F. 630, 23 C.C.A. 367, 1896 U.S. App. LEXIS 2278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/standard-cartridge-co-v-peters-cartridge-co-ca6-1896.