Opinion in Infringement Suit Regarding Homer Brooke Flowing Device

OPINION IN INFRINGEMENT SUIT AN INTERESTING ONE.

Findings of Court in Action Against Hartford-Fairmont Co. Are That Defendant Did Not Use Patents of Plaintiffs in Bottle Machines.

MOLTEN GLASS FLOW DISCUSSED.

Inventions Are Radically Different, States Judge Thomas, in Ending Paper.

The opinion of Judge Thomas, of the Federal District Court in Connecticut, in the suit of the Homer Brooke Glass Co. and the Owens Bottle Machine Co. against the Hartford-Fairmont Co., reviews the case thoroughly. The action was one in infringement, in which an injunction and an accounting was asked. The court decided in favor of the defendant and dismissed the bill. The court's decision, in part, says:

The invention, as stated in the specification, relates to "devices for cutting or separating molten material, and especially is designed for cutting a stream of flowing molten glass into unformed molten masses of predetermined quantity and distributing the same into suitable receptacles. Infringement is the only question to be here discussed and decided. The decision here to be given will be contained in the answers to two questions. First — Does the defendant treat a flowing stream of molten glass, and, second, does the defendant's cutting device cut, support and discharge, or cut and discharge the cut-off portion of the molten masses? These questions will be considered in their order.

Handling Molten Glass.

The stream of flowing molten material and the stream of flowing molten glass are frequently referred to in the specification. The mechanism embraces an automatic device for cutting a flowing stream of molten glass, means for discharging the same, and means for shifting the molds to receive the severed glass, and reference in the specification is made a number of times to the cutting knives acting upon the flowing stream. It appears that the difficulty in the manufacture of glass wares and the efficient and economical handling of molten glass has been a problem which the manufacturers have endeavored to solve, and no doubt this problem has presented many engineering difficulties. The molten glass is viscuous [sic] viscous, sticky and difficult to handle mechanically. Brooke solved the problem by treating or handling successfully the continuously flowing stream of molten glass.

The defendant claims that it also has solved the problem only in an entirely different way and upon an entirely different engineering theory. It claims that its machine in no way treats or handles a continuously flowing stream, or a flowing stream or stream of molten glass. It claims that its problem of engineering proceeds along entirely different lines, and ideas, apart and entirely distinct from the principle involved in the Brooke machine. It claims that its machine more nearly approaches the hand punty method in that a separate gather is obtained somewhat similar to the gob or gather obtained under the old hand punty method and thus a better result is obtained in the finished product. The defendant claims that it does not treat a flowing stream, but rather a gather or gob, a distinct entity with each cycle of operation of its machine and that its engineers entirely abandoned the Brooke idea, and developed an entirely new principle.

Machine Radically Different

The evidence is conclusive that the Brooke machine and the defendant's machine are radically different in theory and in operation, and they certainly are in no way similar in appearance or operation.

But in the defendant's machine there is no hole in the bottom of the furnace to allow a stream to flow by gravity. The molten glass is held within the furnace and cannot escape until mechanically propelled over the lip of the dam by means of a paddle, because the crest of the spout is above the normal level of the molten glass in the tank. The evidence is conclusive, and it is not disputed, that the level of the molten glass in the furnace is always below the level of the dam so that no glass can flow over the dam, and none passes over the dam except as the paddle, in performing its function in the cycle of one complete operation, pushes a predetermined quantity over the dam, and this, as I view it, a separate gob or gather — is not a flowing stream, and in no way an operation similar to that employed by Brooke. The engineering is along different lines. It avoids the theory adopted by Brooke. Having thus disposed of the first question respecting the flowing stream of molten glass — let us proceed to discuss and decide the second question presented.

Defendant Does Not Infringe

If by any manner of means the molten glass going over the dam of the defendant's machine be construed to be a stream, still the defendant does not infringe because the cutting knives on the defendant's machine perform one function only. They cut. They do nothing more. They perform, as nearly as possible, the function of the shears used in the old hand punty method. They do not support or husband the flowing glass, nor do they in the least discharge the cut-off portion. Under the theory which the defendant employs to cut the molten glass, the action of the cutting must be and is nearly instantaneous. To be exact, the proof shows the time consumed in the cutting to be 1-20 of a second, and the time required for the complete cycle of operation of the machine to be two seconds, during 1 19-20 seconds of which the shears are at rest.

A careful examination of all the evidence therefore discloses that the knives of the patent in suit cut, support and discharge. From the claim in suit it appears that the knives cut and discharge. From the operation of the machine it appears that the knives cut, support and discharge.

The defendant's mechanism neither supports or discharges. It simply cuts. There is no support. There is no discharge in which the knives play any part. Instantly on being cut, the severed portion falls by gravity on to a swinging through and the cut-off portion is automatically deposited in molds and presented to receive it.

Further discussion seems unnecessary. The defendant does not infringe. The bill may be dismissed with costs to abide the event.