The Brooke Flowing Device Patent Sustained After 20 Years of Litigation

[Trade Journal]

Publication: National Glass Budget

Pittsburgh, PA, United States
vol. 33, no. 41, p. 4, col. 1


THE BROOKE FLOWING DEVICE


(Crockery and Glass Journal, Feb. 7 issue.)

After twenty years of litigation Homer Brooke has received a decision by the United States Circuit Court of Appeals for the Seventh District (Illinois) sustaining his patent on an apparatus for cutting and distributing molten materials, the same being of particular value to manufacturers of fruit jars, bottles and other glass objects.

The apparatus is designed to replace the "gatherer" and also to save a large percentage of waste in gathering. Divested of technicalities, the method provides for a continuous mass of metal flowing into molds. When these are filled, the knives cut the glass automatically. As soon as this is done an empty mold is brought into position, and the process goes in indefinitely.

Suit was brought against the Schram Mfg. Co. for infringement. Part of their defence [sic] defense was that the Steiner patent for a glass manufacturing apparatus was capable of producing the same results as Brooke's patent. A lower court decided in favor of Brooke, and the Schram company appealed.

From a long opinion of Circuit Judges Baker, Alschuler and Evans we quote the following, which contains the essence of the decision:

"Whether Brooke at the time he made his discovery was not also entitled to a process patent we need not consider, for it is not before us. Nor are we required to devote time to the question of the patentability of Brooke's discovery, for in appellant's brief we find the following language: 'This use of the knife blades for the dual purpose of severing the stream and husbanding it while the molds are changed was new with Brooke, or at least Brooke increased the husbanding to a very material extent that is, from the slight husbanding of Picard, Schulze-Berge to a substantial amount great enough to absorb all glass flowing during the relatively long period of mold shift.'

"Such a concession (justified by the record) clearly and justly credits to Brooke the discovery of an apparatus that would take care of 'an unsupported freely-flowing stream of molten material,' which is the essence of the value of this discovery.

"Appellant further urges that the application for a patent was abandoned in the patent office, and this contention is based on plaintiff's failure to prosecute his application within the period fixed in the statute. This contention must be rejected in view of the decision in Western Glass Co., v. Schmerz Glass Co., 185 Fed. 791.

"Appellant cites Steward vs. American Lava Co., 215 U. S. 162, to the contrary, but the cases are distinguishable and are not in conflict. Section 4892 R. S., sec. 9436 Comp. Stat. 1916, under consideration in Steward v. American Lava Co. supra, requires an amended application for the patent to be verified and makes no exception and grants to the commissioner no discretion. The Commissioner of Patents in the present case was not outside of his jurisdiction when he acted on appellee's application filed more than two years prior thereto, for sec. 4894 R. S., sec 9438 Comp. Stat. 1916, expressly reserves to the commissioner the right to issue patents after such period.

"Claims 3, 4 and 5 are especially attacked because no basis for them is disclosed in the specifications or drawings. It would serve no useful purpose to reproduce here the drawings or to quote at length from the specifications. We have carefully read the specifications and examined the drawings with the criticism in mind, and find ample support for the claims in both the drawings and specifications.

"Appellant's device so clearly infringes appellee's patent that no discussion of this phase of the case will be indulged in.

"The decree is affirmed."

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Keywords:Homer Brooke : D. M. Steward Manufacturing Company : American Lava Company : Lava Insulator
Researcher notes: 
Supplemental information: 
Researcher:Bob Stahr
Date completed:February 25, 2008 by: David Wiecek;