Brooke Flow Feed Patent Decision

BROOKE FLOW FEED PATENT DECISION FROM HIGHER COURT

Jurist in Connecticut Circuit Body Finds For Defendant in Action Where Infringement Was Charged — Concurs With Ruling of Lower Tribunal.

TECHNICALITIES ARE GONE INTO.

Action of Knives Cutting Molten Glass Are Dscussed [sic] Discussed in the Opinion.

The Circuit Court of Appeals of the Second Circuit of Connecticut has affirmed the decision of Judge Thomas, of the Connecticut District Court, in the action of the Homer Brooke Glass Co., and the Owens Bottle Machine Co., vs. the Hartford-Fairmont Company. Judge Thomas had decided that the Brooke flow feed patent, on which the action was based, was not infringed by the defendant company's feeder. Upon appeal from that decision by the plaintiffs, the Circuit Court of Appeals has affirmed the findings of the lower court. The salient features of the decision, written by Judge Hough, follow:

The Court's Opinion.

Appeal from final decree in equity entered in the District Court for the District of Connecticut.

Action is upon claim 3, 4 and 5 of Patent 723,983, issued March 31, 1903, to Homer Brooke and duly conveyed to the first named plaintiff.

Charles Neeve and Frederick P. Fish for appellants.

Thomas Ewing and John P. Bartlett for appellee.

Hough, C. J.

The Schram case (supra) holds the claims in suit valid for a mechanical device, and denies that what Brooke patented is in truth a method. We agree with this, and plaintiffs must therefore prove that the alleged infringing machine not only produces the same results as does the device of Brooke, but that its operation when in use is substantially the same. (Davis vs. Perry, 120 F. R. at 945.)

Action of the Knives.

Brooke by knives severs at predetermined intervals his continuously flowing stream of molten glass and so produces "gobs;" there is absolutely no preformation until the knife cuts. In defendant's machine, knives cut the "sausage strings," but "gobs" are pre-formed by the calculating movement of the paddle before the knife cuts. It is true that what defendant's machine discharges by surges suffers solution of continuity only by and through the knife, and the same is true of Brooke's stream; but by all the evidence, the two streams look no more alike than a stream of sausages looks like a stream of sausage meat. The contest of fact in this case may be said to rage only over the size or thickness of the string that connects the sausages. It seems plain that this contest is immaterial, if there is really no more than a string connection, between masses visibly formed, and formed for use, before severance — and we agree with the court below that such is the case.

Applying these rules, we are of opinion that defendant's apparatus does not present a flowing stream of molten material, whether we consider that phrase standing alone, or ask whether it is the stream conceived by Brooke, or suggested by his patent.

Court is Criticized.

Much criticism of the lower court has been made, in that it declared that words to mean a steady discharge; yet by definition a "steady motion" means in respect of a fluid that the velocity at each point remains "constant in magnitude and direction." We think that word was well applied.

But if the meaning of the phrase be referred, not directly from the claims to lexicographers, but to the disclosure as illuminated by the evidence, it is clear that what Mr. Brooke desired to get away from, and did most ingeniously avoid, was the formation of "gobs" before their severance from the general molten mass. He did that by chopping up whatever fluid came by gravity out of the orifice in the container. Out of such orifice he could only get, and only wished to get, a run of material as from a spigot. Such a stream he had in mind and he had no other; nor would any other suit what he wanted to do. The relation between defendant's and plaintiff's supplies of material is that both are continuous and both are of glass; and that is not enough.

The decree below is affirmed with costs.