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May 5, 1938


The opinion of the court was delivered by: BYERS

BYERS, District Judge.

In this cause the parties are reversed, in effect, to those in 23 F.Supp. 214, in that the defendant there is the plaintiff here, and the plaintiff there, being the manufacturer of the accused structure in this case, has assumed and conducted the defense, and will be referred to, for convenience, as the defendant.

The patents involved are: Leibing No. 2,026,947, applied for May 31, 1932, granted January 7, 1936; Leibing No. 2,068,298, applied for March 18, 1935, granted January 19, 1937; Leibing et al. No. 2,081,825, applied for August 2, 1934, granted May 25, 1937.

 The issues are validity, prior use, and infringement.

 It will be convenient to discuss them in that order.

 The first patent has to do with "method and apparatus for governing flow lines" and involves the relation between the throttle valve and governing valve with reference to the impact upon the latter of the stream or column of fuel as it leaves the carburetor and gains access to the governor valve after passing through the gateway provided by the throttle valve.

 Claim 23 is in issue:

 "23. In combination with means responsive to the rate of fluid flow in a conduit for governing said fluid flow through said conduit, a butterfly valve adjacent said governing means for controlling the fuel flow toward the latter, said butterfly valve being designed to direct a portion of the fluid flow to said governing means, when the butterfly valve opening is relatively small so as to insure responsiveness of the governing means at substantially all rates of flow."

 The closing movement of the governor valve, according to the drawings, is counter-clockwise, while that of the offset throttle (butterfly) valve is clockwise.The conformation of the former is similar to that considered in the earlier cause, and is not a matter in issue here. Figure 1 of the drawing discloses what appears to be still another butterfly valve, on center, in the opened position, and having its upper side immediately adjacent to if not in contact with the larger vane of the governor valve when the latter is fully opened, but that is not a feature of the invention. It is called a degassing device and, for reasons stated by the patentee, it will not be herein discussed.

 It will be recalled that the throttle valve is manually operated since it is moved by the accelerator.

 As has been stated in the other case, when it moves toward closing, it tends to minimize the difference in pressures below and above the governor valve, which retards the closing effort of the latter.

 Apparently this patentee had in mind that such closing movement of the throttle valve could be conceived of as diverting the fuel flow, so that, if the closing movements of the two valves could be contrived in opposite directions, the flow from the edge or tip of the throttle valve nearest of the governor valve could be manipulated so that its impact against the larger division of the latter would assist the closing movement of that valve. It is not asserted that in this way the throttle steal piston discussed in the earlier case, 23 F.Supp. 214, can be dispensed with, but the patent seems to be restricted to so disposing the two valves that the above diversion can be brought about.

 The patentable invention, if any, is quite elusive.

 There had to be a relation between these two valves, so there was no discovery involved in that. The off-center construction of butterfly valves was old.

 Novelty was not claimed for the governing valve structure of Leibing, so that could not have been a part of the inventive concept.

 Since the partial closing of the throttle valve was inevitable through the operation of the accelerator, and since its effect was taught by Hufford No. 1,537,944 (application filed August 22, 1923), it is difficult to discern wherein Leibing was imparting new information in describing the objects of his invention. For instance, he says (page 1, line 28) "Another object * * * is to associate a flow governing valve with the flow regulating (throttle) valve of a combustion engine so that the action of the former is in great part dependent upon the position of the latter." Again: "* * * to devise a method of governing flow in response to both velocities and pressure differentials, and to provide a governor suitable for carrying out the method."

 Perhaps it may be said that Leibing was asserting that, under the partially closed position of the throttle valve, the governor valve was subjected to two impulses:

 (a) A tendency to open due to the differences in pressures below and above it; and

 (b) A tendency to close as the result of impact upon its larger section by the flow of fuel said to be diverted thereto, by the angular relation established by the partly closed position of the throttle valve.

 In order that the latter might function, the valves had to rotate in opposite directions. This is explained (line 3, page 3). It is said later (page 4, line 42) that it is intended to use the same type of valve for the throttle valve, as the governor valve, but this is not shown in the drawings or in the actual devices offered in evidence. The one claim in suit makes no clear mention of the opposing movements in rotation of the two valves, but it is possible ...

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