
    CHARLES PARIDY, ANNA McLATCHIE, AND FERDINAND LOTHER v. THE UNITED STATES
    [No. 34716.
    Decided January 9, 1928]
    
      On the Proofs
    
    
      Patent; improvement m antifriction mountings; infringement; proof of prior patent. — -Proof that the devices employed in the caterpillar tractor manufactured for and used by the United States, alleged to infringe plaintiff’s patent on “ an improvement in antifriction mountings,” were patented more than two years prior to plaintiff’s application for patent, forecloses the issue of infringement and precludes recovery.
    
      The BefortePs statement of the case:
    
      John G. Higdon for the plaintiffs.
    
      Mr. Melville D. Ohureh, with whom was Mr. Assistant Attorney General Her mem J. Galloway, for the defendant. Mr. J. Frank Mothershead was on the brief.
    The court made special findings of fact, as follows:
    I. Plaintiffs are the owners of patent No. 1047281, granted to Charles Paridy, issued December 17, 1912, on an application filed June 10, 1912.
    II. This suit is brought under the provisions of the act of June 25, 1910.
    III. The proof does not establish that plaintiffs’ Exhibit No. 4 was ever manufactured for the United States.
    IY. The evidence does not establish that plaintiffs’ Exhibit No. 4 was ever used by the United States.
    V. The plaintiffs’ patent is entitled an “Antifriction axle mounting ” and relates to the use in railway or similar trucks of an antifriction .device, so tliat the cars equipped with such trucks are transported with less effort than is possible without the arrangement described in the patent. On page 1, lines 92 to 102, the patentee states what he considers the merits of his invention.
    “ The principal advantage of my invention lies in the low center of gravity, the weight being supported substantially in the same plane as in the truck rails, thus obviating derailments which might occur with ordinary car trucks. Another important advantage of my invention is its ‘ anti-friction ’ qualities, as I have' demonstrated that an axle mounting of my construction generates less friction than .an axle^mounting of the ordinary construction.”
    The main, if not the sole, purpose of the patent requires its use in connection with the ordinary steel r'ails of a railway system.
    The drawings of the patent in suit, Figures 1 and 2, show the railway car trucks mounted upon the steel rails of a railroad. The advantage of having the cars equipped with this patented truck, incapable or unlikely of derailment, necessarily calls for the use of the invention in connection with or supported by railroad trucks.
    The other advantage stressed by the patentee “ that an axle mounting of my construction generates much less friction than an axle mounting of common construction,” if true, would only result in requiring less power to push or •pull a car equipped with Paridy’s axle as contrasted with the amount of power necessary to operate railway cars having the ordinary type of trucks.
    VI. The evidence discloses that, far from accomplishing a saving in power, the Paridy device requires a greater expenditure of motive power than is required to operate the common or usual type of railway truck.
    VII. Aside from the question of saving or reducing friction, the Paridy “ axle mounting ” is not for the same purpose and can not be considered as in any way suggesting or covering the caterpillar tractor as illustrated by plaintiffs’ Exhibit No. 4 for the following reasons:
    1. The device of Exhibit No. 4 is a tractor having enormous tractive effort and intended for pulling heavy loads. The device of the Paridy patent is a car truck having but little tractive effort and intended to be drawn along a railroad track.
    2. The device of Exhibit No. 4 presents an enormous area of contact surface to the road, permitting it to traverse soft, marshy, and uneven ground.
    The device of the Paridy patent presents theoretically a mere line of contact requiring its use upon railway tracks.
    3. The device of Exhibit No. 4 makes use of two endless tracks or chains for supporting and driving the tractor. These are not found in the Paridy patent in suit, nor are 'equivalent elements used therein.
    4. With the device of Exhibit No. 4 the tractor lays down its own track, which therefore is an endless track. With the Paridy patent the supporting tracks or rails are not carried by the truck, but are permanently secured on the ground j they are not endless tracks.
    5. With the device of Exhibit No. 4 the endless tracks or chains are supported at each side by two sprocket wheels, for which there is no equivalent in the Paridy patent in suit.
    6. With the device of Exhibit No. 4 a number of supporting rollers are used at each side for engaging the lower rim of the chain, for which there is no equivalent in the Paridy patent in suit.
    7. With the device of Exhibit No. 4 steering is effected by applying a braking effect to one or the other of the tractor elements. Nothing even remotely suggestive to this is found in the device of the Paridy patent, wherein the supporting wheels are rigidly carried by the axles.
    8. The device of Exhibit No. 4 is relatively slow moving- and develops enormous friction.
    The device of the Paridy patent was intended for high speeds, and Paridy expected to very substantially reduce friction, although, for the reasons pointed out, the Paridy construction is faulty in this respect.
    VIII. There is no infringement of Paridy’s patent by the structure illustrated in plaintiffs’ Exhibit No. 4.
    IX. The Holt and Lombard patents, Nos. 674737 of May 21, 1901, 854367 of May 21, 1907, 874008 of December 17, 1907, 945538 of January 4,1910, and 954394 of April 5, 1910r show and describe the various elements present in the “ caterpillar ” structure set forth in plaintiffs’ Exhibit No. 4.
    Lombard patent No. 674737 of May 21, 1901, describes the caterpillar principle. The patent states: “ My invention relates to tractor engines or more specifically to a tractor engine for hauling logs.
    “ The object of the invention is to construct an engine of the kind which may be used on packed snow or soft and muddy roads to transport heavy and bulky loads. This patent (fig. 1) provides a suitable carriage or framework A, on which is mounted an engine or motor 3, and the carriage is provided at each side with a so-called ‘ traction member ’ B, by which the machine is supported and propelled. As shown clearly in Figure 2, each tractor member comprises the two large sprocket or gear wheels 8 and 9, over which travel the endless track chain, or ‘ traction belt ’ 10.”
    In order to increase the tractive effect, Lombard provides the traction belts or tracks 10 with two or more ribs 28, “ which serve to keep the machine from slipping and sliding,” and these ribs in somewhat modified form are still retained on the modern caterpillar tractor.
    The machine is driven by pinion 6 meshing with the' drawing wheel 8 at each side and operated by the engine 3. The Lombard patent discloses all the essential elements of the modern caterpillar tractor, including the two sets of driving sprockets at each side, the two endless belts or tracks, the supporting rollers offering support for the bottom rim of the tractor between the driving sprockets and the engine or motors for applying power to one of the sprockets so as to drive the belts, which thereafter constitute tracks laid down by the machine itself as it is propelled forward. This patent was granted on May 21,1901, more than 11 years prior to filing the Paridy application for patent.
    Lombard patent No. 854364 dated May 21, 1907, discloses a “ log hauler ” in which caterpillar devices are employed {fig. 1) for the main support of a steam boiler and associated engines, and a steering sled 24 arranged to guide the machine. The endless tracks or belts 63 (fig. 3) at both sides are mounted upon heavy supporting sprockets, one of which is driven by an endless chain 60, through gearing from the steam engine. The antifriction belts of the first Lombard patent are omitted, and the rim of the endless tracks at each side between the supporting sprockets is supported by antifriction rollers 74, shown in Figures 3 and 4. This patent discloses differential gearing (fig. 7) by which the driving tracks or chains may partake of differential movement when the machine is turning a corner in the same way as are the driving wheels of an automobile propelled by the motor.
    This patent “ relates to tractor engines and has for its object the production of an engine especially adapted for use in hauling heavy loads of logs or sledges over roads of packed snow.”
    This patent was granted May 21,1907, more than five years before the application of the Paridy patent in suit.
    Patent No. 874008, granted to Benjamin Holt, December 17, 1907, shows a “ traction engine.”
    Kef erring to Figure 1, it will be seen that the device of this patent corresponds substantially to that shown in Figure 1 of Lombard patent No. 854364, with the exception that instead of a front sled for steering the machine, Holt shows a single steering wheel 21 (figs. 1 and 2) and instead of a steam engine, Holt shows a gasoline motor B for the same purpose. Without going into this Holt structure in detail it is apparent that in general respects it is the same as in the Lombard patents. It makes use of two sprocket wheels 2 and 3 at each side, the former being a sprocket driving wheel. Also, there is present on each side an endless chain or track running around the supporting and driving wheels and antifriction wheels 7 to support the bottom rim of the chain between the supporting wheels.
    It is clear from this patent that Holt recognized the two important characteristics of the caterpillar principle, because he states his invention to relate to a “ traction engine ” and he refers to its use on very soft ground. This patent was granted December IT, 1907, four and one-half years prior to the filing of the application of the Paridy patent in suit.
    Patent No. 945538 of Benjamin Holt, patented January 4, 1910, shows a single, endless supporting belt or track 25 and the side of the machine (figs. 1 and 2), a supporting wheel 32 at the opposite side, and a single steering wheel 5 on the front.
    This arrangement referred to is useful in the construction of ;a “ side hill traction engine.” Holt in this patent discloses the employment of speed changing and reversing mechanism as with automobile practice. This patent bears date of January 4, 1910, antedating by two and a half years the filing date of the Paridy application.
    Patent No. 952330, dated March 15,1910, granted to Benjamin Holt shows a caterpillar tractor which drives a combined harvester and thresher. The caterpillar devices are referred to as:
    “A tractor and propelling members, which is particularly effective by reason of the large contracting surface it presents.”
    This patent does not add materially to the disclosures of the former Holt and Lombard patents considered, but is simply a very graphic illustration of the familiar caterpillar belt structure. It was granted about two years and three months prior to the application date of Paridy.
    The last'patent of the Holt-Lombard series is No. 954394, granted Benjamin Holt, April 5, 1910. It shows precisely the application of the caterpillar principle and states:
    “ To grain harvesters in which a threshing, separating, and cleaning apparatus has flexibly connected with it a sickle or cutting mechanism and means to deliver the cut straw and grain to the thresher.”
    Figure 8 shows the caterpillar endless-belt drive that is characteristic of the tractor set forth in plaintiffs’ Exhibit No. 4.
    As an example of the equivalency and identity of structure between the device shown in plaintiff’s Exhibit No. 4 and the earlier discussed patents, Figure 1 of Lombard patent No. 854364 is illustrative. The only difference between them lies in the particular method of driving the sprocket wheels. Lombard drives by a sprocket chain actuated by a jack shaft equipped with a differential gear, whereas in Exhibit No. 4 the driving sprocket at each side is driven from a propeller shaft through a two-part axle. These are mechanical equivalents and were known in the automobile art many years prior to the Paridy application.
    The driving mechanisms were known as “ chain drive ” ■and “shaft drive,” respectively, although in recent years the latter type is used almost exclusively. In the earlier Lombard patent the steering was accomplished by a separate wheel or element, whereas in Exhibit 4 the steering is effected by a proper manipulation of the tractor elements; that is, one or the other of the tractor chains on caterpillar is moved faster or slower than the other, turning or steering the whole tractor as desired.
    X. All of the various patents considered in Finding No. IX were granted more than two years prior to the application date of Paridy’s patent.
    XI. The “ caterpillar ” principle as applied to tractors in all of its details was fully disclosed and patented in the United States more than two years prior to the application for the Paridy patent in suit, as is shown in the several patents to Lombard and Holt referred to in Finding No. IX.
    XII. The following patents are by reference thereto made •a part of these findings of fact:
    Patent to Moyer, 6915, December 25, 1849, and the same is marked “ Defendant’s Exhibit No. 1, Moyer patent.”
    Patent to Williamson, 286565, October 9, 1883, and the same is marked “ Defendant’s Exhibit No. 2, Williamson patent.”
    Patent to Brown, 286776, October 16, 1883, and the same is marked “ Defendant’s Exhibit No. 3, Brown patent.”
    Patent to Brewer, 437561, September 30, 1890, and the same is marked “ Defendant’s Exhibit No. 4, Brewer patent.”
    Patent to Buschner, 475007, May 17, 1892, and the same is marked “ Defendant’s Exhibit No. 5, Buschner patent.”
    Patent to Pearsall, 356955, February 1, 1887, and the same is marked “ Defendant’s Exhibit No. 6, Pearsall patent.”
    Patent to Lombard, 674737, May 21, 1901, and the same is marked “ Defendant’s Exhibit No. 7, first Lombard patent.”
    Patent to Lombard, 854364, May 21, 1907, and the same is marked “ Defendant’s Exhibit No. 8, second Lombard patent.” Patent to Holt, 874008, 'December 17, 1907, and the same is marked “ Defendant’s Exhibit No. 9, first Holt patent.”
    Patent to Holt, 945538, January 4, 1910, and the same is marked “ Defendant’s Exhibit No. 10, second Holt patent.”
    Patent to Holt, 952330, March 15, 1910, and the same is marked “ Defendant’s Exhibit No. 11, third Holt patent.”
    Patent to Holt, 954394, April 5, 1910, and the same is marked “ Defendant’s Exhibit No. 12, fourth Holt patent.”
    The court decided that plaintiffs were not entitled to recover.
   Booth, Judge,

delivered the opinion of the court:

Plaintiffs are joint owners of a patented invention. Charles Paridy was granted Letters Patent No. 1047281 on June 10, 1912. The plaintiff, Anna McLatchie, acquired by assignment an undivided interest in the patent on October 12, 1918. Ferdinand Lother, the remaining plaintiff, acquired an undivided one-fourth interest in the patent on October 17, 1918. The petition in the case is decidedly disconnected, contains several immaterial allegations, and save for one or two paragraphs would not warrant consideration. The material allegations set forth a cause of action for infringement. A huge sum of money is sought to be recovered, not upon any reduced or certain basis of damages, but upon a supposed use by the Government of a large number of wax-tanks during the war. The case was referred to a commissioner of the court. Plaintiffs’ attorney points out no specific objections to the commissioner’s findings, being content to rest his case upon a general objection going to faults of omission rather than commission. The record fully sustains the commissioner’s findings, and we approve and adopt them as the findings of the court.

The inventor’s device, upon which he confidently reljes, is stated by him to be “ an improvement in antifriction mountings.” The novelty he claimed resides in a conception to improve the axle mounting of car trucks and other machinery so that the same will operate with less frictjon and wear and at the same time add strength to the mounting, reducing to the minimum the possibility of disorder. The specifications and claim, together with the accompanying illustration of the dev,ice, clearly disclosed its application to four-wheeled trucks running on rails or tracks, the type commonly and now used in the manufacture of railway coaches, Pul]man cars, and locomotives, etc. It is true a broader use is claimed, but the distinct novelty involved is a device the mechanism of which is centered upon the idea of reduced friction in this regard. The inventor, in speaking of his predominant idea, uses these words, “ that an axle mounting of my construction generates much less friction than an axle mounting of common construction.’7 The patent clearly discloses that the patented device was designed to reduce friction in cases of locomotion involving high speed and revolutionize the prevalent type of railway trucks employing axles extended outside the wheels of the truck within axle boxes, the latter being used in part as receptacles for the, deposit of large quantities of lubricating elements to safeguard against excessive friction. The elements and controlling principle of plaintiffs’ device are claimed as present in the caterpillar tanks manufactured for the Government and its Allies in large numbers by the Holt Manufacturing Company during the war. The wide range of differentials between plaintiffs’ dev,ice and the patents granted to Holt and Lombard is so decidedly conspicuous that a review of each of them would extend this opinion far beyond what the merits of the case warrant. Findings VII and IX point them out in detail. For present purposes it is sufficient to observe that the caterpillar tractor alleged to infringe was constructed in accord with patents owned by the Holt Manufacturing Company, issued more than two years prior to the date of plaintiffs’ patent.

Section 4920, Revised Statutes, Title XI, precludes a recovery. It reads as follows:

“ In any action for infringement the defendant may plead the general issue, and having given notice in writing to the plaintiff or his attorney thirty days before, may prove on trial any one or more of the following special matters:

“ Third. That it had been patented or described in some printed publication prior to his supposed discovery ther'eof, or more than two years prior to his application for patent therefor.”

Aside from the absolute impracticability of plaintiffs’ ■device and its utter lack of commercial value, the prior art effectually forecloses the issue of infringement. The plaintiffs, fully realizing the force of the defendant’s contention in this respect, attempt to inject into the case a record of unfair and criminal accusations against Mr. Benjamin Holt, now deceased, late president of the Holt Manufacturing Company. The alleged purpose of so doing is to discredit the Holt patents by an unsupported charge by which we are asked to find that Mr. Holt obtained his ideas and secured his patents by clandestinely appropriating a working device illustrative of Mr. Paridy’s patent, some twenty years prior to its patent, at a time when Mr. Paridy was unable to forestall the alleged theft because of illness and physical disabilities. The contention has no place in the record, is wholly unsustained, and would not have received attention save for the fact that it has been designedly spread upon our records, either in abject ignorance of its availability as a defense in this case, or, what seems more likely, as a pretense brought before the plaintiffs for continuing this hopeless litigation over a period of six years.

The plaintiffs in this case, in our opinion, have been ill-advised. The petition will be dismissed. It is so ordered.

Moss, Judge; Graham, Judge; and Campbell, GMef Justice, concur.  