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to the frame, when made of wood, or the substitution of any equivalent, or of an elevated table within and on the bottom of the recess or chamber as found in defendant's brush. But still he says the frame may be constructed in any known manner. This clearly indicates any form of construction for the brush-back or frame. In short, Morrison's idea of means for retaining the brush-head within the metal frame was, and, as expressed, is, to have a contracted aperture overhanging the edges of the brush-pad when formed within the chamber. For this “contracted aperture,” so far as it serves to hold the brush-head in place, the defendant has substituted "a raised center portion” in the chamber, as described in letters patent No. 791,510, dated June 6, 1905, application filed December 12, 1902, to Anson L. Sonn, the claim of which reads as follows:
"In a brush the combination of a composition, bristles secured to said composition, a brush-back provided with a raised center portion, a groove between said center portion and a ridge along the rim of the brush-back, said composition secured within said groove, substantially as described." In describing his purpose
says: "My invention is to provide a new and more effectual means for retaining the cement in the brush-back and at the same time make the completed brush lighter in weight than has heretofore been accomplished, so far as I am aware, in cement or composition brushes. The cement or composition is heavier than the wood, which is the material of which the brush-back is usually constructed. Therefore it is desirable to have as little composition as is consistent with good construction. I preferably arrange a brush-back, A (shown in Fig. 2), in which a portion, C, is cut out, leaving a central part B of substantially the same thickness as the brush-back, thus forming a groove, C, in the brushback, extending around the sides of the brush-back. Within the groove, C, and over the portion, B, the plastic cement or composition will extend and will retain in position the pad of cement or composition, K, containing the bristles when the same has become hardened."
The language "within the groove, C, and over the portion, B [the raised portion within the chamber], the plastic cement or composition will extend and will retain in position the pad of cement or.composition, K [the brush pad of complainant's patent] containing the bristles when the same has become hardened,” shows that Sonn had the idea that some means must be used to retain the brush-pad of composition, holding the bristles, within the chamber or recess which he describes as “a groove, C, in the brush-back.” In short, he expressly says that:
“My invention is to provide a new and more effectual means for retaining the cement in the brush-back, and at the same time make the completed brush lighter in weight than has heretofore been accomplished, so far as I am aware, in cement or composition brushes.”
To make the brush lighter when of wood he makes the chamber or recess smaller by leaving therein a raised central portion not excavated or cut out, an idea that would occur to any one skilled in the art, and which cannot rise to the dignity of invention. In a metal brush-back such construction would defeat the purpose to make the brush lighter, for metal is heavier than the composition, and therefore the leaving of this raised portion of metal in the chamber to lessen the amount of composition used would make the brush heavier.
Sonn refers to a wood frame only for he says: “The cement or composition is heavier than the wood, which is the material of which the brush-back is usually constructed.” To retain the completed and hardened brush-pad containing the bristles within the chamber of a metal frame requires mechanical skill. In the metal back or frame surely it would not adhere. In the wood back or frame it would adhere to an extent. In the complainant's frame of wood actually made and used the undercut is employed, and this makes the aperture into the chamber smaller than the area of the chamber itself, and the overhanging edges of the frame rest upon the edges of and retain the hardened composition or brush-head when unbroken. Sonn dispenses with this manner or form of construction, and substitutes the raised portion in the center of the chamber or recess, to which the plastic material adheres as it hardens, and hence the brush-head is retained by adhesion to it and to the sides and bottom of the chamber. Is this method of holding the brush-pad within the chamber or groove, which is the same thing, the equivalent of the complainant's method of accomplishing that purpose, assuming that complainant's method embraces or includes such a purpose? In describing his method Morrison makes no reference to means for holding or means for retaining the brush-head when hardened in the brush-frame. He refers to the drawings of the metal brush described and illustrated, but says nothing of a contracted opening or aperture into the chamber or recess, and from the specifications describing his method we can only infer he had such an aperture in mind from the use of the words “pushed through the face aperture.” From the necessity of pushing the lower projecting ends of the bristles through the face aperture down into the plastic material previously deposited in the chamber through the aperture, we may infer that a contracted aperture, one smaller than the upper surface of the chamber itself, is understood. But is this inference necessary? The claim itself suggests it, for it provides for a "contracted aperture.”
The complainant in his brief says:
"It is evident from the language used that there was no intention on the part of the inventor or his attorneys to limit the application of the method any further than was necessary to produce a useful brush; that is, a brush in which the hardened composition, when molded about the bristle tufts within the chamber of the brush-back, would remain there while in use; that is, the aperture of the chambered brush-back must not be so extensive that the bristle pad formed in practicing the method within the brush chamber would fall out without some support other than the walls of the chamber."
Is not this, in effect, a concession that in practicing the method of complainant's patent some means other than the walls of the chamber itself are necessary to retain the brush-pad when formed within the chamber therein. The brief also says:
"It is possible that the adhesion of the composition to the walls of the chamber would be sufficient to retain the composition within the chamber, even if the chamber walls were beveled so as to flare outwardly in a very slight degree, in which case they would perform all the functions of inwardly beveled or undercut walls."
But there is no suggestion of this in the claim or specifications. On the other hand, both suggest a contracted aperture or opening into
the chamber, one smaller than the interior surface thereof, making it impossible for the brush-pad to fall out when hardened.
The complainant argues with some force that the words “having a contracted aperture” serve to distinguish, in terms, the chambered brush-back from the back section of the die, which had been previously employed in the manufacture of composition back brushes. I do not find anything in the claims or specifications that justifies any inference that the words "contracted aperture” were used therein to distinguish the aperture of the chambered brush-back of the patent from the apertures of the dies formerly used in this art. Such dies are not mentioned in the Morrison patent.
But it is contended that the contracted aperture is unnecessary to the invention; that it is an immaterial element, if it may be called that; that the invention of the patent is fundamental or a pioneer; and that defendant cannot, without infringing, appropriate the true invention of the Morrison patent in suit by rejecting or failing to use in his method of construction this contracted aperture or a chambered brush-back or brush-frame which does not have an aperture of lesser area than the surface area of the chamber proper. Complainant contends that practically the elevated portion left in the chamber, and with its sides forming the grooves, is the equivalent of the contracted aperture, giving it the construction claimed by defendants, inasmuch as it serves simply to hold or retain the completed brush-pad within the chamber or grooves.
In Walker on Patents (4th Ed.) $ 120, p. 103, it is said: "In cases where the description relates to a process, the claim should cover all the necessary occurrences in that process, and cover no more. If it covers less, it will be void for want of utility; and if it covers more, it can be evaded by persons who omit any one which is unnecessary when using the others."
This is a process or method for making a brush. The steps are: (1) The depositing of a mass of heated plastic composition within à chambered brush-frame having a contracted aperture; (2) forcing one end of a group of exposed bristle tufts through this aperture and into the composition; (3) at the same time giving form to the face of such composition by mold-pressure; and (4) supporting such bristles in the desired position, projecting out through the face aperture until the composition cools and hardens. Steps 1 and 2 of this process or method are successive, while 3 and 4 take place or are done at the same time as 2, except they continue in operation for a greater length of time. The forcing of the bristles into the composition is done in a moment, while the pressure must continue until the composition hardens. The whole process of making the brush is precisely the same whether the aperture into the chamber be broad and flaring, outwardly-beveled, or contracted as compared with the surface area of the chamber; that is, inwardly-beveled or undercut. The patentee is making a brush, and he not only describes the steps of the operation, but the means or things to be used, acted on, or combined in performing it. Heated plastic composition, not described or limited as to kind, or quality, or ingredients, is
used and deposited. Where? In a chambered brush-frame. This frame is described and limited to one having a “contracted aperture.” Also tufts of bristles not described or limited in kind or quality or length. Any bristles formed into tufts will answer the claim of the patent. The means for forcing the bristle tufts through the aperture and into the composition and for applying the mold pressure are neither described nor limited. Any suitable means or mold may be used. Suppose the patent had in the claim itself named a particular kind and quality of composition containing certain specified ingredients, would it infringe to use a compostion of another kind and quality with other ingredients, not equivalents ? Or suppose in the claim itself, not the specifications, the patentee had described a particular and peculiar form of mold for giving form to the face of the composition, would it infringe to use some other and different form of mold, giving another and different shape or contour to the face of the brush? The completed brush is composed of a brush-frame of wood or metal or other material, bristles and composition to hold the bristles and tufts of bristles. Certain things, in the method described, are to be done with these substances in a certain order. Necessarily certain tools or appliances will be used in doing these things. The mold pressure may be applied by any suitable instrumentality. This is a mere tool, used in performing the operation, and is of secondary importance.
importance. Cochrane v. Deener, 94 U. S. 780, 24 L. Ed. 139. It is there held:
"A process may be patentable, irrespective of the particular form of the instrumentalities used. If one of the steps of a process be that a certain substance is to be reduced to a powder, it may not be at all material what instrument or machinery is used to effect that object, whether a hammer, a pestle and mortar, or a mill. Either may be pointed out; but, if the patent is not confined to that particular tool or machine, the use of the other would be an infringement, the general process being the same. A process is a mode of treatment of certain materials to produce a given result. It is not an act or series of acts, performed upon the subject-matter, to be transformed and reduced to a different state or thing. If new and useful, it is just as patentable as a piece of machinery. In the language of the patent law, it is an art. The machinery pointed out as suitable to perform the process may or may not be new or patentable, while the process itself may be altogether new, and produce an entirely new result. The process requires that certain things should be done with certain substances, and in a certain order ; but the tools to be used in doing this may be of secondary consequence."
But the frame and composition and bristles are the substances to be used in putting the method into operation, and if these substances to be used in the process are specifically named and limited to a certain kind and quality, having certain specified ingredients, in the claim itself, there being more than one kind, it would not infringe to use the kind not named, as that kind from which the specified quality and ingredients are absent would not be included in the patented process.
Cochrane y. Deener, supra. So here the method claimed consists in doing certain things with certain specific substances, and as a chambered brush-frame having a contracted aperture is one of those substances, this particular kind of a brushframe is a material element of the method, and is made such by the express and specific language of the patentee. And this is further
emphasized by the claim itself, which requires, as a part of the process to be gone through with, one of the things to be done with these substances, that the “group of exposed bristle tufts” are to be forced through the aperture described. We would hardly speak of forcing anything through an aperture into a recess or chamber of the same precise dimensions and surface area as the aperture itself, unless there was some resistance to be overcome, such as air or water within the chamber to be pressed out, which is not the case here. Of course, there might be the friction upon the sides of the aperture in case the thing to be forced through were of the same size or dimensions of the aperture, but such is not the case here, as the tufts of bristles when in the bristle plate and ready to be put through the aperture and inserted in the plastic composition are held within a smaller area than that of the surface of the chamber. Hence the patentee must have known that there was no necessity for “forcing one end of a group of exposed bristle tufts through the aperture” unless such aperture was either less in area or of the same size as the group of bristles.
I think the complainant's patent a fundamental one, and entitled to a broad construction, and that the complainant is entitled to have applied the doctrine of equivalents. Morrison made a great and an important and useful advance on the prior art. He simplified, hastened, and cheapened the process or method of making brushes, especially in so far as it relates to forming and putting the completed brush-pad in the brush-frame, and this is the most essential and important part of the process. He combined several steps before done separately into one, and defendants have appropriated that method, unless it be in the use of a frame having a contracted aperture. But still the claim of the Morrison patent has this self-imposed limitation, and hence, unless the raised central portion of the chamber of defendants' brush is the equivalent of the “contracted aperture” of complainant's patent, giving these words their proper construction, there is no infringement. It serves the same purpose, but not in the same precise way. It serves, in a wooden-handled or woodenframed brush, another purpose also, for it lessens the weight of the brush-makes it lighter. But if defendant used complainant's method and all its elements, he cannot escape infringement because his method of making brushes serves another purpose also, or because the substituted equivalent is better and improves the process. Nor can he in such case escape infringement by adding another element, which does not destroy the identity of the two processes. Cochrane v. Deener, 94 U. S. 780-786–787, 24 L. Ed. 139. At page 787 of 94 U. S. and at page 141 of 24 L. Ed., it is said:
"The defendants admit that the process has produced a revolution in the manufacture of flour, but they attribute that revolution to their improvements. It may be, as they say, that it is greatly due to these. But it cannot be seriously denied that Cochrane's invention lies at the bottom of these improvements, is involved in them, and was itself capable of beneficial use, and was put to such use. It had all the elements and circumstances necessary for sustaining the patent, and cannot be appropriated by the defendants, even though supplemented by and enveloped in very important and material improvements of their own.”