The opinion of the court was delivered by: GALSTON
This is a patent infringement suit involving the validity and the infringement of patent No. 1,482,151 granted January 29, 1924, to H. Rosenberg for a metallic fastener.
The device of the patent is a screw type of fastener for securing metal plates together with such an interlocking of the engaged parts as to resist removal of the screw.
The screw is a cylindrical body having multiple, high-pitched threads, with a head at its upper end. The threads extend angularly only a comparatively slight distance about the body of the pin or screw. The cylindrical part extends beyond the threads in the form of a smooth portion designated in the specification as a guide or pilot. The pilot is of slightly greater diameter than the diameter of the screw measured at the valleys which appear between the threads, thus forming a shoulder at its upper end.
The threads are of hardened material so that they may cut their way, without damage to themselves, into or through the plates through which the screw is passed. For convenience of manufacture, the pin may be of case-hardened iron or steel.
In operation, the pin is placed in position with the pilot extending into a bore formed in one of the plates. The head of the pin is then struck by a hammer or other suitable implement. In the course of this driving action, the metal into which the pin is driven is somewhat severed by the cutting threads and caused to flow at the opposite sides of the threads into the valleys between them and to a position overhanging the shouldered portion of the pilot. This effects a lock. The inventor notes in his specification that as the pin is driven it is somewhat rotated, and consequently acts as a screw as well as a rivet.
Claims 5, 6, 8, and 9 are in issue. It will be sufficient to discuss claims 5 and 9. They read:
"5. A fastener for metal work comprising a pin-like body having hardened threads of sufficiently high pitch to permit the driving of the body into an opening in metal of a transverse area less than a circle described about and touching the exposed edges of the threads, and sufficiently low to effect rotary movement of the body incident to the action of the threads engaging the metal when the body is being driven into such opening, there being a sufficient number of threads to cause each of the threads to occupy substantially as much space as the space between any two consecutive threads for causing a clogging action between the threads by the metal engaged thereby when the pin is subjected to a withdrawing stress after being driven into such opening."
"9. A fastener for metal work comprising a pin having a substantially cylindrical body and hardened threads extending along the pin and of sufficiently high pitch to allow the pin to be driven into an opening in metal of substantially the same diameter as the body, a portion of the body extending beyond one terminus of the threads for forming a pilot."
Hardening a metal screw was, of course, not new when Rosenberg filed his application for the patent in suit on September 24, 1921. Indeed, in an application which he filed for another patent on November 11, 1913, as appears from the opinion in Rosenberg et al. v. Carr Fastener Company (C.C.A.) 51 F.2d 1014, he specified that the screws should be "made of steel and properly tempered." From the same case it appears that on April 6, 1917, he filed another application providing for "hardened" threads. Consequently, the hardening feature must be disregarded as any evidence of invention.
Indeed, the prior art, other than Rosenberg's own use, discloses a hardened screw, as, for example, United States patent to Whitney, No. 107,143, issued September 6, 1870.
So, too, the defendant previous to September 24, 1921, manufactured drive screws, Defendant's Exhibit I, made from basic rivet wire, and, while not case-hardened, they were hardened by rolling. Also they were provided with multiple threads, four or five to each screw. These screws were normally driven into the material, and would turn as they were thus driven. It may be noted, too, that this early specimen of defendant's manufacture in respect to the relation between the width of the thread at its base and the width of the space between the two threads is essentially the same as that shown in the devices of the defendant alleged to be infringed.
We come then to the question, whether changing the pitch of the thread, which is apparently the only feature which distinguishes Rosenberg's present invention (as at least defined in claims 5, 6, and 8) from his prior patents, constitutes invention.
A multiple pitch in a screw is not new. United States patent No. 2,417 issued to W. T. Steiger on January 8, 1842. This patent shows multiple threads, and though, of course, the Patent Office drawings are not working drawings, and though the patent says nothing concerning the degree of the pitch, apparently the models offered by the defendant are fair representations of the Steiger device, and they are of a sufficiently high pitch to function as drive screws, providing the material into which the screws are driven is softer than the screws. It follows that, if ...