COVEL MFG. CO. v. RICH et al., 142 F. 468

BAKER, Circuit Judge, after stating the facts, delivered the opinion of the court. 1. The device of patent No. 654,843 is an improved saw support for use in sharpening band-saws that have teeth on both edges. In claim 3 a vertical channel is secured to the sharpening machine under the grinding wheel. Within the channel is a slide that can be moved up and' down. Attached to the slide, horizontally and in line with the saw as it is moved forward tooth by tooth under the grinding wheel, are two bars, the lower one rigid and the upper pivoted.

On the upper side of the lower bar are stops that limit the tilting of the upper bar which supports and guides the saw. In claim 4 the stops are adjustable. The band-saw with teeth only on one edge can be brought to the proper position under the grinding wheel without the use of a tilting support, because the back of the saw presents a smooth and lével edge that can pass along on a fixed horizontal support without difficulty.

But the double band-saw is liable to have its teeth worn down unevenly, and so, while the teeth on one edge are being sharpened, the newly sharpened teeth on the lower edge, if not of equal length from the center of the saw, would more likely catch or be injured on a rigid support than on a tilting one, because the tilting support affords a better bearing for a greater number of teeth. In 1900 Schofield could not have obtained a patent on a support for a single-toothed band-saw, consisting of a base or standard, a slide or stem movable up and down therein, and a seat on top of the stem.

When the double-toothed band-saw came into use, did it require the exercise of the inventive faculty to pivot the seat on the stem ? In the saw filers’ room were three machines, one for gumming, one for swaging, and one for sharpening, saws. They were handled by the same men, and each machine played a

part in renewing saws for further use. As a part of, or in connection with, each machine a support or bearing was necessary to hold the saw in proper relation to the gumming, swaging, or sharpening instruments. In Watson’s and also in Kinney’s swaging machine the tilting support was found. To move this support over to the sharpening machine, without change of structure (looking to the law of the structure, and not to mere size, location, or alteration of parts within obvious or known equivalents), was only extending its use.

It was not even a new use, taking the structure for what it is, namely, a support or bearing for the saw while its teeth are being operated upon, and not regarding the particular operation. The adjustable stops to limit the tilting. The patent does not disclose how these are to be used. If they are to be screwed up to stop all tilting while the machine is in operation, a rigid support would result and the advantages of a tilting support be lost. If that is the object, the means of the patent are as obvious as a block under a wagon-wheeel or rocking-chair.

If unevennesses of the saw’s lower edge are to be accommodated by the tilting, then the stops must be kept out of the way. If so, the utility of the stops would consist in their preventing the support from tilting so far that the filer would be inconvenienced or the saw possibly injured while the filer was putting the saw on the support, or (on another theory of appellant’s), if the machine were in operation and an ■earthquake or other unexpected jar should occur, in preventing the teeth of the saw from being dragged against or across the too greatly up-lilted support.

If the object is to prevent tilting beyond a predetermined point, the means of the patent are as obvious as the stop that limits the swing of a door. But however the stops are to be used, and whether ■obvious or not, they and every element of claims 3 and 4 were found before Schofield’s time in Kinney’s support in connection with his swaging machine. As no adaptation beyond known equivalents was made or ■needed, and as the transfer was from the very same art, the claims must be held void. Potts v. Creager, 155 U. S. 597, 15 Sup. Ct. 194, 39 L. Ed. 275; Mast, Foos & Co. v. Stover Mfg. Co., 177 U. S. 485, 20 Sup.

Ct. 708, 44 L. Ed. 856; Stearns v. Russell, 85 Fed. 229, 29 C. C. A. 121; Chisholm v. Johnson, 115 Fed. 625, 53 C. C. A. 123. 2. The device of patent No. 654,845 is an independent tilting support to be used in upholding the band-saw at the proper level before it enters, and after it leaves, the sharpening machine. It is needless to regard the question of double-patenting presented by the appellees. No invention was required to unfasten the tilting support from the sharpening machine and stand it on an independent base.

The alleged novelty in claim 5 of this patent is of course defeated by the references that have been considered in connection with patent No. 654,843? The appellant claims that great advantages result from the co-operation of the devices of the two patents. But that can help neither, for each must be judged on its own merits. 3. Regarding claim 5 of patent No. 654,844, the feed mechanism was old. .Schofield’s improvement consisted in his replaceable bearing-blocks for the feed-finger.

But, to quote from one of the experts, “whether the parts are put together in one way or the other, whether they are made in one piece with a view to simplicity of manufacture, or in several pieces with a view to ease of repair, is a mere machinist’s option.” 4. The claims of patent No. 669,251, which are in suit are for means of reversing the motion of the grinding wheel. In view of the skilled mechanic’s knowledge of gears, pulleys, belts, and levers, no invention was involved in adapting Hoffman’s geared mechanism to the pulley, belt, and lever device of the patent. The decree is affirmed.