FARMERS' HANDY WAGON CO. v. BEAVER SILO & BOX MFG. CO., 236 F. 731

KOHLSAAT, Circuit Judge (after stating the facts as above). The only serious question presented is that of the validity of the patent. If valid, appellee’s device clearly infringes. It was so found by the District Court. The use of the Z-bar or the T-bar instead of the L-bar, and the location of the sealing pressure between the margins of the door and the inner faces of the marginal staves, do not serve to materially differentiate the two. The patent in suit, in the absence of prior patents or uses anticipating the same, is of a character to meet the requirement of the statute as to invention.

It is in an art which appeals most strongly to farming communities, where such assistance as it provides is in demand. The difficulty in procuring, skilled labor and proper construction help makes the factory nucleus of a silo— one that will serve as a guide in building the necessary structure for a silo — -a veiy serviceable device. This is clearly evidenced by the fact that great numbers of them have been and still are being sold. The demand for a strong and inexpensive structure has been and doubtless will continue to be very great. The device of the patent has gained great favor.

The difficulty had been in constructing a rigid and true doorway for the vertical opening — one that would offset the weakening effect of such an opening. It will be borne in mind that a silo should be, as near as possible, both air and water-tight. Appellant uses in its door-frames a pair of angle-irons — one on either side of the opening. These are so arranged as to fit closely into the silo walls and at the same time afford a close, practically immovable, seat for the ends of the door sections, without so closely binding the latter as to make them difficult to remove.

These bars are joined by cross-bars which are riveted thereto near their ends, which ends are prolonged so as to be fastened to the first stave, thus binding the two together on either side and also uniting the right and left adjacent staves. The other staves are readily put in place, and the whole bound with hoops. While the patent claims a silo, the special feature seems to be the rigid factory-made and portable door-frame.

The metal has the advantage over a wood frame in being rigid and not affected by the moisture of the contents of the silo or from the outside. “The angle bars,” says appellant’s counsel, “prevent this [distortion and binding] by furnishing a continuous reinforcement, in contact with the end staves from top to bottom and are capable, in connection with the cross braces B, of receiving and resisting the crushing effect of the staves, which is thus distributed along the length of the angle bars.” The extension and fastening of the ends of the cross-bars to the end staves, it is claimed, afford a cantilever effect which relieves the angle-bar rivets.

This feature of the construction is attested by appellant’s salesmen to be a decided improvement upon the art as it theretofore existed. The Crosby and Haag patents were co-pending with McClure in the Patent Office. On both of them patents were issued prior to McClure upon applications also filed prior to that of McClure. The appellant contends that these two patents were not in the prior art with regard to the McClure patent, because the several patents granted thereon were subsequent to the date of filing his (McClure’

s) application. Among the defenses filed were Nos. 3 and 4, set out in

section 4920 of the Revised Statutes (Comp. St. 1913, § 9466). They read as follows, viz.: “3. That, it [the patent] has been patented or disclosed in some printed publication prior to his [the patentee’s] supposed invention or discovery thereof, or more than two years prior to his application for a patent therefor. “4.

That he [the patentee] was not the original and first inventor or discoverer of any material and substantial part of the thing patented — citing Crosby and Haag, with others, as having previously known of said invention and every material part thereof, and also as having filed applications and received patents thereon.” While under defense 3 aforesaid, in order to be considered in the prior art, the patent cited should have been granted prior to the filing of the application of McClure, yet where the fourth defense is set up, the question as to who was the first inventor is squarely raised, and that matter must be determined on its merits.

Barnes Sprinkler Co. v. Walworth Mfg. Co., 60 Fed. 605, 9 C. C. A. 154; Sundh Electric Co. v. Rapid Transit Co., 198 Fed. 94, 117 C. C. A. 280. While McClure might have carried his date of invention back to the Crosby and Haag application filing dates, if such were possible, he did not do so. Therefore, Crosby and Haag, having filed their applications prior to McClure’s date, must be deemed to have made their several inventions prior to the time when McClure made his. They are thus in the prior art as to McClure for whatever they disclose.

This should, we hold, be limited to such matters as are included in their several claims, unaided by their specifications or by extrinsic evidence except where necessary to elucidate and make the same clear.

The first claim of Haag reads as follows, viz.: “A silo composed of a series of like staves and having an unobstructed door-opening at one side, the side posts of which are the adjacent staves, a plurality of straight braces extending across the door-opening and having their ends curved to conform to the curvature of the body and bolted thereto, angular lugs secured to the inner faces of said braces and engaging the edges of the staves adjacent the door-opening, hoops having portions extending across the braces and lying thereon, a plurality of door-sections of a width greater than the width of the door-opening and having chamfered end portions adapted to lie directly against the inner faces of the staves adjacent the door-opening, hooks secured to each of said door-sections and adapted to overlie the brace adjacent thereto, and means for clamping the door-sections in the door-opening.” This substantially describes the invention.

The device has no side frame E or other iron

section bars. Its metal cross-bars or braces are secured to the staves adjacent to the opening respectively by bolts. Practically all of its bolts or securing devices are anchored in wood and therefore subject to be loosened. The device has no metal seat forks doors. The idea of a rigid door-frame construction is not the object or central idea in the silo construction, and its door-frame is not independent. It does not, in our judgment, anticipate. McClure.

That its advent brought no contribution in practical advance to the art may be presumed from the fact that it has always remained negligible in the commerce of the art. The District Court held the patent in suit invalid, as being anticipated by the Crosby patent. This device employs for the sides of its door-frames continuous sections of metal, Z-shaped in cross sections. One flange of this Z

section is fastened or secured to the adjacent stave by a series of bolts passing through the flange and stave. The opposite flange forms the side portion of the door-frame. The rib or web connecting the two, spans the smooth, beveled edge of dhe adjacent stave. The Z sections are connected by steel cross-pieces which do not engage the adjacent staves. By the adjustment of the metal parts a seat is provided for the board sections which compose the door itself, as in McClure. The L, and Z shaped metal sections may be deemed equivalents for the present purposes.

Crosby claims stability, durability, simplicity, and air and water tightness, together with facility in discharging the contents and resistance to great pressure. The use of metal hoops for holding the staves together is a necessity with Crosby as in all silo tanks, and especially in the case of circular silos.

Claim 2 of Crosby reads as follows: “A silo having a door-section comprising two metal standards having oppositely-extending- flanges and an intermediate rib, metal cross-pieces comprising cross-flanges secured to the oppositely-extending flanges and having central flanges rabbeted at their ends to fit over said oppositely-extending flanges and against the intermediate ribs thereof at intervals to form door-casings, and doors formed of staves connected by a bar and bound with felt, said doors being fitted behind the front flanges of the standards and having buttons pivoted thereto and provided with end. portions arranged to swing to positions in front of the crosspieces.” This claim fairly expresses what the patent covers.

As above noted, McClure, Haag, and Crosby were pending in the Patent Office at the same time. The fact that no interference was declared, and that each of them was granted a patent for what he claimed, argues strongly for the validity of each as against the others. The presumption of patentable novelty arising from the grant becomes in such case very strong. American Caramel Co. v. Glen Rock Stamping Co. (D. C.) 201 Fed. 363. Neither Haag nor Crosby were called as witnesses.

That fact also contributes to the force of the presumption that the results produced by McClure’s construction were new, or that they were obtained in a novel or improved manner. While both Haag’s and Crosby’s inventions are prior to McClure’s, it is evident that, to overcome the presumptions above set out, the court must be able to find very clearly from the evidence that the subject-matter of Crosby is practically identical with that of McClure’s claims. Crosby’s cross-pieces serve only to unite the side door-frames or Z-bars.

They fail to strengthen the union between the first or adjacent stave and the Z standards. All that holds the standard and stave together is the series of bolts which connect the stave with the outward flange of the Z-bar.

These bolts of necessity have only a slight hold in the stave, not being supported by more than an inch or so of wood, which they serve to weaken, and which must, as a rule, be unable to resist the great strain caused by heavy winds and swelling staves, whereas McClure has provided, as aforesaid, for the extension of the cross-bar ends to embrace and form strong and rigid connection with the first or adjacent stave, thus more than doubling the strength effected by Crosby’s union between the standard and the stave. This cross-section is, of course, in addition to the hoops which encircle the silo.

Where independence, rigidity, and strength are essential, everything which contributes to those ends is most desirable. In the patent in suit, the angle-iron side-frame sections are covered by the wooden staves adjacent to them and therefore protected from the action of the acid of the silo, which, it is claimed, is destructive. On the other hand, one flange at least of appellee’s Z-bar is wholly exposed thereto, thereby subjecting the other two flanges also to the destructive process.

In the desirable features of silo construction, such as strength, rigidity, and simplicity, the device of the patent had so far appealed to the trade that it had not only supplanted the alleged anticipating silos, but had for a number of years held the market to an unusual degree, sounding defiance to all comers. Appellee, having overlooked the silos of the prior art and openly appropriated that of the patent, must, by reason of its tribute implied in its almost literal annexation of the device, come somewhat limpingly to the contest against its validity. It certainly concedes its utility.

All the said facts of the case considered, together with the further fact that appellee at once ceased infringing when notified of suit, we are satisfied that nothing in the prior art as shown, or prior knowledge, would justify us in holding that the patent in suit is void for want of patentable novelty. Nor is there proper ground for holding that it discloses an aggregation. All the elements combine to constitute a valid combination, well within the statute.

With regard to the charge of unfair competition, the record is replete with the most bold and open appropriation of appellant’s trade literature by appeljee. Whole clauses are taken, practically adopting appellant’s literature in its statements, prospectuses, and catalogues. It is in evidence that appellee’s device and advertising seriously undermined appellant’s trade, which, when appellee’s infringement, on notice of suit, was discontinued, at once revived. Appellee even applied to its product the trade-name “All steel door-frame,” which was used by appellant, utterly ignoring appellant’s rights.

The bill seeks to restrain infringement of the patent and also to .restrain unfair competition. These are properly joined, independent of the question of citizenship. Adam v. Folger, 120 Fed. 260, 56 C. C. A. 540; Ludwigs Mfg. Co. v. Payson Mfg. Co., 206 Fed. 64, 124 C. C. A. 194. Appellant is entitled to have its patent sustained, infringement thereof and unfair competition found and restrained, and an accounting taken. The decree of the District Court is reversed, with direction to grant the relief prayed for.