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Everest v. Duke.

December 14, 1943

EVEREST ET AL.
v.
DUKE.



Appeal from the District Court of the United States for the Northern District of Illinois, Eastern Division; Michael L. Igoe, Judge.

Author: Sparks

Before SPARKS and MAJOR, Circuit Judges, and LINDLEY, District Judge.

SPARKS, Circuit Judge.

Appellees charged appellant with infringement of claims 1, 2, 5, 6, 7, 8 and 9 of United States Patent No. 2,095,411, and claim 11 of United States Patent No. 2,181,420. Both patents were issued to appellees on the respective dates of October 12, 1937, and November 28, 1939, on applications filed respectively on February 11, 1936, and on October 8, 1937. The defenses were invalidity and non-infringement. The court made special findings of facts and stated its conclusions of law thereon, holding all claims in issue valid and infringed by appellant. It rendered a decree accordingly and issued injunctive relief in aid of the decree. From that decree this appeal is prosecuted.

The first patent relates to a folding wheel chair. Claim 1 is the broadest,*fn1 and if valid, appellant concedes infringement of it. However, he contends that it is unpatentable over the following prior art patents: McHugh, No. 652,737; Hockney, No. 909,411; Scorey, No. 1,300,033; Williams, No. 1,895,115; Hayes, No. 1,898,834; and Ericson, No. 1,905,830.

Patentees' problem was to construct a chair wherein the side frames could warp or rack relatively to each other to accommodate themselves to an uneven or irregular surface. Its primary purpose was to secure such flexibility of the chair that it would not teeter or rock on diagonally opposite corners, and that traction of both drive wheels could always be obtained. The disclosure accomplished the purpose, although all elements of the combination were old in the art.

In the patented device there are two rigid side frames connected by a single X-brace, the members of which brace are connected at or near their centers by a longitudinal hinge pin or bolt. The diagonal members of this brace carry sleeves at their lower ends which are rotatable on the lower horizontal bars or rods of the side frames. They are also slightly slidable thereon longitudinally by reason of the fact that the sleeve at the lower end of each diagonal brace is slightly shorter than the lower horizontal bar or rod of the side frame. At the upper ends of the X-brace sleeves are secured, which constitute seat bars, in the ends of which sleeves short end bars are rotatable. These end bars are notched for sliding engagement with vertical bars of the side frames. Such construction enables the chair to collapse into a relatively small space, and the fact that the sleeves on the lower ends of the X-brace are shorter than the lower horizontal bars of the side frames permits one side frame to warp or rack relatively to the other in a longitudinal direction, that is, in substantially the vertical plane of the side frames. Thus, although one side frame might be stationary, the other side frame can shift slightly relatively to it, as may be required on traversing an uneven surface.

Appellant urges that claim 1 defines nothing that would permit the tubular sleeves to slide longitudinally on their rods. Of course, they would thus slide, unless prevented by some limiting means, and the claim does not recite any limiting means. However, both the specification and the drawings disclose such limitation sufficient to maintain the desired flexibility.

It is clear that none of the prior art patents relied upon disclose the combination described in claim 1, and most certainly none of them disclose the same objectives as those of appellees. The prior patentees sought and disclosed stability and rigidity without flexibility. The appellees sought and disclosed all of those characteristics, and they accomplished that result with the use of but one set of diagonal braces. All of the cited prior art, except Hockney, used a plurality of such braces, and the latter used no diagonal braces. None of the cited art used a sleeve hinge or a sliding hinge of any nature. McHugh, Williams, Hayes, and Ericson disclose only stationary chairs, and Hockney discloses only three wheels.

Appellant further contends that claim 1 refers to any kind of a folding chair, with or without wheels, and hence it is anticipated by the cited prior art. It is true that claim 1 merely describes a folding chair, but for reasons heretofore stated, that fact does not render the cited prior art any more pertinent. However, this patent was issued by the Patent Office on a "Folding Propulsion Wheel Chair." We understand that all claims should be construed in the light of the specification and the drawings. They conclusively prove that the patent was properly named by the Patent Office, and we are convinced that claim 1 should be construed as referring only to a folding propulsion wheel chair.

Appellant contends that appellees' use of a tubular hinge sleeve did not amount to invention. It is quite true that such hinge was old in the art, and appellees do not claim to be its inventor. Their claim is that they are the inventors of a collapsible wheel chair in which a hinge sleeve is used on the ends of a single X-brace which is located near the center of the chair, whereby one side frame of the chair can warp or rack relatively to the other side frame on traversing uneven ground. This we think constituted a new use of the old elements which the prior art did not disclose.

Again, appellant contends that no invention is involved in reducing a plurality of X-braces to one. Of course, as a general rule, there is no invention in the mere omission of a part or parts of a prior combination together with their functions, if no new and useful result is thereby obtained. Here, however, flexibility was thereby obtained which was not disclosed by the prior art, and that such result was definitely useful is not denied. We think claim 1 is valid and infringed.

Claims 2, 5, 8 and 9 of the first patent are treated together by the parties. Claim 2 describes the folding chair described in claim 1. In addition, it recites the presence of the wheels and the means that confines each sleeve on the rod whereby each sleeve independently of the other may have a slight sliding movement longitudinally. Claim 5, after reciting the side frames and the wheels connected thereto at the front and back, specifies a rod forming part of a connection between the front and rear legs, and a sleeve rotatively and slidably movable upon said rod. Claim 8, in addition, specifies the presence of a single hinge pin at the center of the X-brace which forms a center twist of one frame relative to the other. Claim 9 specifies the limited longitudinal sliding movement between the spacing devices, or X-brace, and the side frames, which permits of the warping or racking required for flexibility.

As to the validity of these claims, appellant urges that all the appellees have done is to carry forward an old idea, and that it is common to have some slidable movement of tubular hinge sleeves, and he asks us to take judicial knowledge of that fact. This we may do for the purpose of argument, but it does not do away with the novelty of the result as to flexibility which appellees disclosed in their combination of old elements. We find nothing in the ...


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