Figures 5, 6 and 7, includes those in which the friction shoes
associated with the bolster are directly pressed against the
friction means or plates on the side frame columns by springs
independent of the load carrying coils, thereby producing
practically constant pressure.
Claim 10 of the patent in suit clearly relates only to Class
One devices. This is confirmed by the fact that Claim 10
originated in the Shafer application which in its entirety was
limited to Class One devices. Class Two devices were eliminated
from the Goodwin patent by the applicant, upon the suggestion of
the examiner of patents, during the pendency of the application.
The Goodwin file wrapper (Defendant's Exhibit 34) is
uncontroverted evidence of this fact. At the time, no mention was
made either by the examiner or the applicant as to the removal of
Figures 5, 6 and 7 from the application. However, that appears to
have been an oversight since these figures clearly relate to the
material then withdrawn by the applicant, i.e., Class Two
It therefore seems clear that Claim 10 of the patent in suit
applies solely to Class One devices as illustrated in Figures 1,
2, 3, 4, and 8 of the patent. Defendant's accused devices each
contain inside independent springs, activating the shoes against
the sides to generate friction, and thus clearly do not infringe
Claim 10 in suit. Claim 10 falls within Class One where the
friction generated is directly proportional to the load.
Defendant's accused devices would come within the category of
Class Two, where the friction is at least in part generated by
independent springs working against the shoes and sides of the
devices. Since Claim 10 cannot be construed to include devices of
the Class Two type, clearly the defendant's accused devices do
not infringe the claim in suit. In other words, in order to
establish infringement there must be identity of means, operation
and result. Here, there is no identity of means and operation
and, consequently, plaintiff's attempt to show infringement must
Having arrived at this conclusion, it is unnecessary to pass
upon the validity of Claim 10 of the patent in suit. I might
observe in passing, however, that Claim 10 seems to be clearly
anticipated in the prior art, particularly by Ritter No. 972,921.
The stated object of the Ritter invention was "to temper and
control the excessive oscillation of the bolster springs by the
frictional action of the bolster guide members upon the side
frames". Ritter also states that "the central wedge element may
be inverted and either integral with or independent of the
bolster, in which event the bolster springs will bear upon the
bolster guide members". The inverted form of Ritter's invention
closely resembles the structure shown in the Goodwin patent No.
2,053,989. In particular, it should be pointed out that the
bolster guide members of the Ritter structure function as the
friction shoes defined by Claim 10 of the patent in suit.
Plaintiff, contends, with considerable persuasion, that Ritter
teaches an inoperable device, pointing out that there is no
instance of the Ritter patent ever having been used. Certainly it
never appeared in the truck of any railroad car. It would seem,
however, that Goodwin has merely perfected a practical
application of what Ritter teaches, and thus his patent
represents an improvement in the art by a mechanic skilled in the
art, but does not constitute invention. This might also be said
of the defendant's two patents which they have secured on their
accused devices herein. Since, however, I find that there is no
infringement, it is unnecessary to make conclusive findings on
Further, I find that there is no merit to the defendant's
alleged defense of laches. There is ample evidence that plaintiff
was in frequent communication with defendant concerning the
asserted infringement from 1944 — the year defendant made public
its devices — until the present action was commenced in 1949. It
seems clear that, during this entire period, plaintiff was
honestly endeavoring to effect an amicable settlement of the
avoid litigation. Certainly, such activity is not incompatible
with proper diligence to protect one's patent interests.
Judgment in favor of defendant. Plaintiff's costs.
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