LORAIN STEEL CO. v. PAIGE IRON WORKS et al., 171 F. 648

BAKER, Circuit Judge (after stating the facts as above). The Kress device relates to what is known as the tongue switch, a kind that is particularly adapted for use in street car tracks on paved streets.

By means of “a depending pintle at its heel end the tongue is swiveled to’the foundation structure.” If the tongue is of such a form that the flange of the front wheel of a car in passing from point to heel can strike or press against the side of the heel, back of the pintle, the point will probably be thrown so that the rear wheel will take a different course; but it was not Kress who first conceived the idea of so shaping the tongue that it could not be struck back of the fulcrum.

Patent No. 586,893, July 30, 1897, to Angerer, and the manufacturing practice of the appellees, were earlier disclosures of how to shape the tongue and seat it in the foundation structure so as to prevent “kicking.” If the whole switch structure were of metal unaffectible by wear, the Angerer form would continue indefinitely to be a preventive of kicking or accidental displacements; but the modern heavy street cars, particularly at switches and crossings, hammer and wear the original steel or cast structures out of shape, and a loose and wobbly switch structure is a source of danger.

So Kress proposed to cut out a part of the foundation and insert “a removable plate of unusually hard material” which should serve as the floor on which the switch-tongue should rest, and through which the depending pintle should extend, and which should also serve as the side walls about the heel of the tongue. Kress did not invent the hard material, nor the art in street railway construction of cutting away the usual material and inserting removable plates of hard material wherever there was unusual or excessive wear.

Hard-metal inserts had been applied quite generally to frogs and crossings, and also to switches. Patents Nos. 536,734 and 536,735, April 3, 1895, to Moxham; patent No. 555,773, March 3, 1896, to Howe & Angerer; patent No. 534,973, February 36, 1895, to Samuel; switch structures manufactured by the New York Switch & Crossing Company in 1898. Removable hard-metal plates had been used as the floor on which the switch-tongue should bear and in which the pintle should be seated; but no one prior to Kress had made the Angerer side walls about the heel of hard-metal.

Kress’s predecessors, however, had not only taught the art of making and setting particular removable plates, but they also had shown that, wherever an injurious change of shape was likely to occur by reason of wear, there was a place to be treated by the insert process, and that the hard-metal plate or block should be of the form of the metal displaced. In view of the prior art we are of opinion that the Kress patent is void for want of invention. Turning to the Krauss patent, we find that the bolt and spring are in front of the pintle. In appellees’ structure the holding-down spring is upon the pintle.

Considering the claims as read upon appellees’ structure, we hold them to be void for want of invention, in view of patent No. 364,267, June 7, 1887, to Lewis, for a pivoted crossing-rail held down by a bolt with a spring-washer, and of the very general use of spring-washers upon bolts to maintain a yielding contact. The decree is affirmed.