Appeal from the District Court of the United States for the Eastern District of Illinois; Walter C. Lindley, Judge.
Before ALSCHULER, EVANS, and SPARKS, Circuit Judges.
ALSCHULER, Circuit Judge.
Appellant seeks reversal of a judgment dismissing, for want of equity, its bill charging appellees with infringement of United States patent to Crawford (assigned to appellant), No. 1,352,184, September 7, 1920, for improvement in radiator shields.
The invention has to do with means for regulating the flow of the air through automobile radiators for the purpose of cooling the water which circulates therein in order to keep the engine cool. As is well stated in appellees' brief: "The inventive concept of Crawford, therefore, was to take the old radiator consisting of core covered by a separate covering shell of sheet metal, admittedly old, extend the shell in front forward farther than it had been done previously, and mount in this forward extension of the shell in front of the radiator core, the shutter, which in closed position closed the front open panel of the shell and in open position exposed the air and water tubes of the radiator core to the air which might pass backwardly through the panel and the open shutters."
Claims 1, 4, and 8 are involved. Claim 4, appearing in the margin,*fn1 is sufficiently typical. All are combination claims whereof each of the elements is old in the art.
It is claimed that this invention brought together for the first time the extension beyond the face of the radiator proper of the shell or shield which surrounds it, and the shutters, mounted upon and within such extension, adapted to be opened or closed for regulating the extent of the opening for the air intake.
The court found that Crawford's claim 1 is without patentable novelty in view of prior United States patent to Wright, No. 1,152,585; and that his claims 4 and 8 are void of invention and without patentable novelty in view of said patent to Wright, patent to Furber, No. 1,114,246, and patent to Brock, No. 774,556.
Appellees' main reliance is upon the Wright patent, application for which was filed December 14, 1912. This device shows an extension of the radiator shield or shell beyond the radiator face, and at the front of the extension a series of fixed flat metal bars in the form of a grid, with open spaces between the bars, and with a corresponding sliding member for covering and uncovering the spaces. The contention is that before Crawford there were in this art shutters for regulating the air intake, and that it did not involve invention to substitute shutters for grids.
The Furber patent shows a structure not contained within the shield or shell itself, but adapted to be bolted to and carried on the core of the radiator.It showed shutters for regulating the intake, contained within this added structure.
The Brock patent, November 8, 1904, shows devices for cooling or heating the water in the radiators. It mentions pivoted slats as one means of opening and closing the walls of the casing; but it appears that the arrangement is not part of the shield or shell itself, if, indeed, such a shield is there shown; but it is bolted onto the radiator and not to an extension of the shield or shell, as in Furber.
Appellant contends that if in Wright shutters were substituted for grids, it would still fall short of showing the Crawford combination. If it be assumed that with such substitution Wright and Crawford would be substantially identical, it would be at least doubtful whether invention over Wright would be involved in the Crawford device; and were it not for the evidentiary influence of transactions between the parties, to which reference will hereinafter be made, we might be inclined to resolve the doubt in accordance with fact finding No. 10.
Fact finding No. 12 is to the effect that the Crawford patent is void of patentable novelty in view of the patents to Carter, Kelzer, Tibbetts, and Fekete. As to this appellees' brief admits that if the twelfth finding of fact is on the basis that the four patents last named anticipate Crawford, and show invention earlier than the invention date to which Crawford is entitled, the finding is in conflict with the seventh finding, which fixes Crawford's invention date not later than December 16, 1915, which is prior to the filing date of each of these four patents.
Appellees admit they are bound by this seventh finding as to Crawford's invention date, and this obviates the need of discussing these patents as ...