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spring performed the same function as the integral spring of the Berkey patent, and, to quote from the opinion of the court below, "only differs in that the tongue is mechanically attached, while the tongue in the Berkey device is formed out of one side of the socket." But is the mere making in one piece a structure which had theretofore been made of two or more pieces mechanically attached invention? Or, to put it in another form, is it a patentable invention to substitute for a riveted spring in a caster socket a spring made integral with the socket? A spring, either made integral with the supporting member or mechanically attached, for holding a pintle in place, was not new, and this the patentee concedes on the face of his specifications when he says, "I am aware that a spring is not broadly new for holding a pintle in place." The only ground, then, upon which it can be urged that Berkey has made a patentable improvement over the socket and spring of Kane & Brown, to say nothing of a long line of caster devices not so clearly approximating Berkey, is that Berkey has provided a spring made integral with one-half of a socket, in place of a spring riveted to the socket. In doing this he has not taken the idea of an integral spring from what counsel call the "furniture caster art," but has found such integral spring in common use in other arts as a wellknown method of seizing and holding some other part of a structure in place. A large number of patents have been filed by appellant for devices in which a spring tongue or spring finger is shown attached integrally to the supporting member in distinction to being riveted thereto. Some of these are in somewhat analogous arts, as in watch sockets, pen and pencil sockets, candle sockets, etc. We need not specially consider these, for in the printed brief of the very frank counsel for the appellee it is admitted "that a spring tongue or a spring finger formed of the same piece of metal as the body of the article, and adapted to seize and hold some other article placed in contact therewith, was a common thing in sheet metal structure." But it is said that in the "furniture caster art" such a spring made integral with the caster socket is not shown, and that it may be invention to transfer a device from one art to another. For this, C. & A. Potts & Co. v. Creager, 155 U. S. 597, 15 Sup. Ct. 194, 39 L. Ed. 275, is cited. But the transfer has plainly been made from arts where the spring was integral with a socket, and where its purpose and function was precisely that to which it is applied in Berkey's device. No change in form has been made to adopt the device to a new application. No difficulties of adaption have had to be cleared away. Such a change from even a nonanalogous art cannot be regarded as involving invention. The case in this aspect is governed by Stearns & Co. v. Russell, 29 C. C. A. 121, 85 Fed. 218, where Judge Taft, for this court, gave thorough consideration to the limits of the doctrine of C. & A. Potts & Co. v. Creager. There a device taken from button-making and printingpress machinery, for lifting and holding small articles by exhausting the air in hollow points, and applied in the pill-making art to hold pills while dipping them in a bath for the purpose of coating them

in gelatine, was held not to involve invention. Said the court, in that case:

"Here the old use was lifting and holding paper and small articles, and the new was lifting and holding pills. We are of opinion that, notwithstanding the utility and success of the new application of the device to pilldipping, the circumstances that no change or form was necessary to the new application, and that the functions or purposes new and old were not wholly different and distinct, but were substantially the same, make this a different case from Potts v. Creager and lead to a different result."

To the same effect is the decision of this court in L. Schreiber & Sons Co. v. Grimm, 19 C. C. A. 67, 70, 72 Fed. 671, 674, where a ball and socket joint was applied in a device for furnishing an adjustable seat for caster support. It was urged to be invention to carry the device from other arts to one in which it had not been used. Speaking for the court, Judge Severens said:

"The ball and socket joint was a common construction, and was in universal use in mechanics wherever the requirements indicated its utility. In this instance the requirement was for a joint between the saddle and its seat, which would permit the saddle to rock laterally and longitudinally so as to permit the surface of the saddle to adjust itself to the surface of the casks. The ordinary hinge susceptible of only one of these movements I would not answer the purpose. It would seem that it would be obvious to a mechanic fairly skilled in his business to meet the requirement by interposing the ball and socket device. Again, no new appliances are here provided which affect the operation of the joint. That is perfect for all the functions that are required of it, and there is no new result substantially distinct in its nature. It is simply the case of an employment for a new use, and nothing more, and falls within the general doctrine of those cases in which it has been so many times held that the mere extension of a wellknown device into another field of usefulness, where the transfer does not involve the faculty of inventive genius, will not support a patent. Tucker v. Spalding, 13 Wall. 453, 20 L. Ed. 515; Brown v. Piper, 91 U. S. 37, 23 L. Ed. 200; Ansonia Brass & Copper Co. v. Electric Supply Co., 144 U. S. 11, 12 Sup. Ct. 601, 36 L. Ed. 327; Manufacturing Co. v. Cary, 147 U. S. 623, 13 Sup. Ct. 472, 37 L. Ed. 307,-where many of the previous cases are collected.”

But it is said that the mere making in one piece a device theretofore made in two or more, which were soldered or otherwise mechanically attached, may involve invention. There are cases in which, under very special circumstances, such an improvement may show patentable invention. The case of Krementz v. S. Cottle Co., 148 U. S. 556, 13 Sup. Ct. 719, 37 L. Ed. 558, is relied upon as giving countenance to this claim. The device involved there was a collar button made out of one piece of sheet metal. Such buttons had been theretofore made out of two or more pieces soldered together. The improvements involved an improvement in form, strength, and lightness, and, being generally made of gold, an important cheapening in the cost. The case was a very close one, and finally turned upon its universal adoption. The case of Howard v. Stove Works, 150 U. S. 164, 14 Sup. Ct. 68, 37 L. Ed. 1039, involved a patent upon a stove grate, where the alleged invention consisted in casting in one piece an article which had formerly been cast in two pieces and put together by nuts and bolts. This was

held not to involve invention. In Manufacturing Co. v. Holtzer, 15 C. C. A. 63, 67 Fed. 907, the circuit court of appeals for the First circuit held that the right to improve on prior devices by making solid castings in lieu of attached parts is so common and universal in the arts as to cast a heavy burden upon any one claiming patentability for such an improvement to show special reasons in support of his claim. The mere fact that an article made in one piece instead of in two mechanically attached is more durable, and the cost of construction cheapened, is not in itself enough to constitute invention. That result the court in the last case cited said was "the ordinary consequence of dispensing with joints by casting solid, well known in all the arts."

The conclusion from all the cases must be that the mere making in one piece of a device formerly made in two parts mechanically attached is not invention. The exception to the general rule must depend upon special facts indicating the presence of the inventive faculty in a degree greater than the mere mechanical knowledge. exhibited by so simple an improvement. Much stress has been laid upon the alleged large use and sale of this improved socket. The evidence upon this point is not very forceful in respect to this particular invention. The sales were chiefly of a structure which included track plate and socket, or these in combination with a caster, the track plate and caster being the subject of other patents; and it is not made plain that any more of the alleged success of the sale of the track plate socket was due to the socket than to the track plate. However this may be, we do not think the question of patentability doubtful, and it is only when the patentability of a device is doubtful that the general use of the patented article may turn the scale. McClain v. Ortmayer, 141 U. S. 419, 12 Sup. Ct. 76, 35 L. Ed. 800; Duer v. Lock Co., 149 U. S. 216, 13 Sup. Ct. 850, 37 L. Ed. 707.

We find it unnecessary to consider the limitations upon this patent or the question of infringement. We are satisfied that the patent, for the reasons stated, is invalid, and the decree upholding it must be reversed.

2. The Berkey & Fox patent also relates to furniture casters. The inventor had several objects in view, but, so far as material to this suit, the object was "to provide an improved track plate for the anti-friction wheels, which plate serves also as a furniture protector," and "to secure the track plate to the furniture without the use of screws or nails." The only question here involved relates to the alleged infringement of this "track plate" of the patent. This track plate and its uses are thus described by the inventor as follows:

"The track plate, T, may be cast in the form shown or cut from sheet metal and then formed up. In the latter case it would not have the shoulder shown at n in the Fig. 1. The teeth on the outer and upper edge attach the plate to the wood, prevent the latter from splitting, and also insist in holding the plate and socket together in position on the furniture. The socket, e. c. has a flange, F, on its lower end, which, when the socket is driven into position, combines with the teeth to hold the track plate firmly against the wood. This track plate is especially valuable when used on furniture re51 C.C.A.-8

quiring a caster block, as a portion of the teeth engage the frame of the furniture and the remainder engage the block, holding it securely in place. When used with the common caster, without the anti-friction wheels, the track plate is still of service in assisting to hold the socket more firmly in the wood, and in preventing the latter from splitting. On account of the peculiarly curved form of the track plate, as shown, it serves as a shoe, permitting the easy sliding of the furniture when the caster is temporarily removed, preventing the flange, F, from catching on the floor, and avoiding the necessity of chamfering the edges of the bottom of the leg."

We insert, for the better understanding, Figs. 1, 2, and 4 from the drawing:

[graphic][subsumed][merged small][merged small][merged small]

Fig. I is a vertical sectional view of the caster when inserted, taken on the line X-Y of Fig. 2. Fig. 2 is a front view of the caster, track plate, and socket attached together and removed from. the furniture. The track plate in question is shown at T in both figures, and no point in either figure is here involved which is shown below T. Fig. 4 is a perspective view of one part of the socket showing the flange, F, referred to in the claims involved here. There are six claims in the patent. Those here involved are 3, 4, 5, and 6, which are as follows:

"(3) In a furniture caster, the combination of a socket having a flange and a track plate with its central portion sufficiently depressed to receive the entire flange above the lowest surface of the plate when in position, substantially as and for the purpose described. (4) In a furniture caster, a track plate having the outer portion of its lower surface of the annular convex form, and the central portion of the depressed form, shown and described. (5) In a furniture caster, the combinati n of a track plate and a socket having a flange adapted to engage the said plate and hold the same onto the furniture, substantially as described. (6) In a furniture caster, the combination of the track plate, T, provided with teeth, t, t, and the socket, c, c', provided with flange, F, the flange adapted to hold the plate securely against the wood, and the teeth to prevent the wood from splitting, and to hold both more firmly, substantially as described."

Many earlier patents for caster track plates and sockets have been. put in evidence as anticipations. They undoubtedly operate to limit the claims of the Berkey & Fox device to a track plate of the peculiar curved form of the one described and shown. Thus limited,. none of the earlier devices present either that form or the advantages pointed out by the patentees as a result of the form. The principle function of the track plate in question aside from its function as a track for the wheels of a caster, anti-friction or not, which the inventor pointed out and claims as due to the "peculiar curved. form of the track plate, as shown," is the fact that "it serves as a shoe," permitting the easy sliding of the furniture when the caster is temporarily removed, thus preventing injury to the floor, and also avoiding the necessity for chamfering the edges of the bottom of the leg. Another advantage claimed is that it is valuable when used on a caster block, "as a portion of the teeth engage the frame of the furniture and the remainder engage the block, holding it securely in place." Though narrow, we think the patent sustainable. The question of infringement presents peculiar difficulties. The defendants below made their track plate in two parts instead of one; in other words, they have cut the track plate of the patent in two equal halves. But when in use the two constitute the track plate of the patent "having the outer portion of its lower surface of the annular convex form, and the central portion of the depressed form shown and described" in the drawings and specifications of the patent. If these halves were intended to perform separately some new function, or, when united, were adapted to some useful purpose not attainable by the track plate when made integral, the change might avoid infringement. But this is not the case. Again, the track plate and socket of the infringing device, instead of being separate structures, are made in one piece, and the dividing line between what would otherwise be the flange of the socket must be

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