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May 3, 1933


The opinion of the court was delivered by: CAMPBELL

CAMPBELL, District Judge.

This is a suit in equity for the alleged infringement of patent No. 1,321,150, issued to Howard C. Root, assignor to the Prest-o-Lite Company, Inc., for controlling valve for vacuum-operated power means, granted November 11, 1919, on an application filed May 9, 1917.

The defendant has by answer interposed the defenses of invalidity and noninfringement.

 The plaintiff has title by mesne assignments to the patent in suit, and notice was given to the defendant.

 The plaintiff is a corporation organized and existing under the laws of the state of New York, with its factory and principal place of business at South Bend, Ind., and engaged in the manufacture and sale throughout the United States of vacuum brakes for automotive road vehicles, under the Root patent in suit.

 The defendant is a corporation organized and existing under the laws of the state of New York, with its principal place of business at No. 3104 Northern boulevard, Long Island City, within this judicial district, in which district the alleged acts of infringement were committed.

 The defendant is a distributor of the alleged infringing vacuum brake apparatus, which apparatus, sold by the defendant, is known as the Besler vacuum brake, and is manufactured by Engineering Productions, Inc., of Emeryville, Cal., and distributed for the entire United States by Lathan Company, Incorporated, of San Francisco, Cal.

 The patent in suit was adjudicated in this court in the action brought by the plaintiff on both the Dickson patent, No. 1,076,198, and the patent in suit, in Bragg-Kliesrath Corporation v. Farrell (D.C.) 32 F.2d 266, and affirmed by the Circuit Court of Appeals of this circuit, 36 F.2d 845.

 In the case last cited, the District Court held the patent in suit valid but not infringed. This was affirmed on appeal by a majority of the Circuit Court of Appeals; Circuit Judge Learned Hand, in a dissenting opinion, holding claim 2 of the patent in suit also infringed.

 The patent in suit has had great commercial success.

 The plaintiff's predecessors Fisher and Allison first operated under the Dickson patent, supra, which called for an "additional and somewhat delicate movement" releasing the "foot button or hand throttle lever" in order to hold the brakes "after being slightly applied."

 The patent in suit is an improvement to overcome that shortcoming of Dickson.

 Circuit Judge Mack, on said appeal, at page 847 of 36 F.2d, after describing the operation of the Dickson patent No. 1,076,198, said:

 "In the Dickson device the brakes could not be held, after having been slightly applied, unless the three-way valve was returned a short distance toward the open position, thus cutting off both the suction and the air from the brake cylinder, and thereby holding the piston in the position to which it had been moved. This required that the foot button or hand throttle lever be slightly released by the operator every time he desired to hold the brake. Root's patent eliminated this additional and somewhat delicate movement by providing a valve which was automatically closed by a movement of the piston and which held the vacuum until the suction was again introduced or air admitted to the brake cylinder. This result was achieved by using a follow-up element, 21, which was actuated by the piston itself, through a lever 22, so that when the suction was introduced and the piston moved, it automatically moved the follow-up slide to cover the suction aperture and hold the brake.Any additional movement of the foot button or hand lever (which are not shown by Root but which are adaptable to his device) would repeat this operation until the maximum braking effect had been obtained."

 The instant suit is based on claims 1, 2, 3, and 4 of the patent in suit, which read as follows:

 "1. A valve mechanism for fluid medium operated power applying means having a manually controlled valve member operable to control the communication between the source of power and the said means, and between the same and the atmosphere and a supplementary automatic cut-off valve member associated with the first valve member and operable immediately of the power applying and return actuations of the manually controlled valve, to cut off the communication between said source and power means.

 "2. In a vacuum operated power applying means, in combination with a cylinder and a power applying piston movable therein, means of communication between said cylinder on one side of the piston and a source of suction, valve means for controlling the suction communication to establish a vacuum on said side of the cylinder, means controlled by said valve for establishing communication between the cylinder and the atmosphere and means automatically operable by the piston for cutting off communication from the suction line to the cylinder.

 "3. In a vacuum operated power applying means, in combination with a cylinder and a power piston movable therein, means for operating a vacuum on one side of said piston, valve means for controlling the creation of said vacuum and automatic cut-off valve means operable mechanically by the operating movement of the piston and between the cylinder and the vacuum creating means to proportionately interrupt the communication.

 "4. In a vacuum operated power applying means, in combination with a cylinder having communication with a source of suction adapted to establish a vacuum in said cylinder, a power applying piston movable in said cylinder valve means controlling communication between said source and cylinder and between the latter and the atmosphere, means for manually operating said valve means, cut-off valve means having operative mechanical connection with the piston and controlling communication between said source and the cylinder, and means for operating said cut-off valve, means to decrease or interrupt said communication between the power applying and return actuations of the said controlling valve."

 The patent in suit shows a main valve 12, and a supplementary valve 19, 22, operated by a piston which follows up the movement of valve 12 and cuts off the suction.

 [See Illustration in Original]

 If the valve 12 is moved somewhat further, it reapplies the suction, causes the piston to move still further, and the follow-up valve moves just sufficiently to cut off the suction again. The movement of one is proportionate to that of the other.

 Although it seems to me that defendant does not contend that the patent in suit, as construed by this court and the Circuit Court of Appeals, is invalid, it introduced the alleged prior art patents with a view to limit the construction of the claims of the patent in suit so as not to cover defendant's structure, I will now consider the prior art at some length.

 Patent No. 88,431, to Atkins. -- This patent has for its stated purpose, with others, operating the rudder to steer a ship, handling heavy guns and other ponderous masses, controlling the link motion of steam engines, operating iron planing machines, and controlling throttle valves of steam engines. It is to be operated by pressure. The piston is stationary, held to the frame of the machine, the cylinder moves, and there is a piston valve at the top.

 From the drawings it appears that the width of the laps in the piston valve is exactly the same as the width of the port; thus there is no overlap. The device is on unstable equilibrium, the slightest movement one way or the other would admit air or steam, or whatever was operating it. If moved one way, that would change the opening of the ports to the other side, and so on.

 Unless there is some lap, a device of this kind becomes unstable and would be unsatisfactory for use for the purposes of the patent in suit.

 Disregarding that for the moment, a movement of the hand lever L in one direction or the other opens the port on one side to the pressure, and the port on the other end of the cylinder to exhaust, and vice versa, so that the cylinder moves up and carries the valve chamber along with it, and closes those ports again. If the cylinder itself is moved, due to any cause, when the ports are closed, such, for instance, as if it was connected in the brake system of an automobile, then of course it would reconnect one side or the other to the atmosphere, assuming we were working it some way with vacuum, or, if it was with pressure, it would exhaust the pressure side to the air and the braking would be lost again. That is the way it is intended to work. The possibility of using it with water is mentioned, and with water it would be possible to bring it up to a state of equilibrium and hold it there, but that would not be possible with an expansive fluid.

 The device therefore is not suitable for use as a source of power to apply brakes in an automobile.

 Patent No. 203,224, to Wadsworth. -- This patent was considered in the prior litigation and needs no extended consideration here, as there is no provision made to prevent loss of pressure due to the motion of the piston rod, and it seems to me that the mechanism would not be suitable for automobile use, if it could in any way be adapted for the purpose of applying brakes.

 Patent No. 231,258, to Batcheler. -- This is a vacuum and air pressure system all combined for operating the brakes of a railroad car. I have some doubt as to the patent operating as described, but, even if it would, it seems to me to have no bearing on the patent in suit. There s no follow-up, and the vacuum or the air as may be used to move the cylinder is regulated by the engineer, by an ordinary engineer's valve. This is not in accord with the disclosure of the patent in suit.

 Patent No. 530,994, to Howe and Clark. -- This is a device for operating clutches and other devices, and shows the usual type of these steam power cylinders, which are manually controlled, and is unsatisfactory for automobile brake use.

 This patent was also considered in the prior litigation.

 Patent No. 578,602, to Goodwin. -- This patent shows a vacuum brake for a railroad car. The car is provided with a vacuum pump, operated by an eccentric mounted on the car wheel shaft, which pump can be connected by a three or four way valve to a pair of tanks, so that the air can be exhausted from them to give a vacuum reservoir, or, by the same valve, it can be connected directly to a vacuum cylinder, which is of the diaphragm type in the case of the cylinder applying the brakes, and of the ordinary cylindrical cylinder and piston type in the case of a cylinder which is also attached to the car, for dropping and raising a fender to pick up people who happened to be on the track. There is no connection between the application of the brakes and the closing and opening of any valve which controls the flow of air out of or into the cylinder, that is manually controlled by the motorman from his end of the car. The patent proposes to have a somewhat graduated application of the brakes by bleeding in a certain amount of air through this valve into the system when the valve is connected with the vacuum tanks, and thereby reduce the vacuum. This would be an ...

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