
    NATIONAL FIREWORKS DISTRIBUTING CO. v. EDWARDS MFG. CO.
    (Circuit Court of Appeals, Sixth Circuit.
    December 12, 1924.)
    No. 4189.
    !. Patents <§=824(6)—Motion to reopen for newly discovered evidence largely within trial ooart’s discretion.
    Leave having been granted to defendant by Circuit Court of Appeals, after affirmance of decree for plaintiff in patent infringement suit, to move trial court to reopen ease and present newly discovered evidence, the grant or refusal of such motion is largely within trial court’s discretion.
    2. Patents <§=328—No. 926,308, for toy pistol, held valid, and not anticipated.
    Claim 6 of Wertz patent, No. 926,308, for toy pistol, held valid, and not anticipated by See, No. 747,245, for detonating machine.
    Appeal from the District Court of the United States for the Southern District of Ohio; Smith Hickenlooper, Judge.
    Suit in equity for patent infringement by the National Fireworks Distributing Company against the Edwards Manufacturing Company. After decree for plaintiff was affirmed (272 F. 23), defendant’s motion to reopen the case and present newly discovered evidence was sustained, and decree rendered for defendant, from which the plaintiff appeals.
    Reversed and remanded.
    Frederick A. Tennant, of Boston, Mass., and Alfred M. Allen, of Cincinnati, Ohio (Nathan Heard, of Boston, Mass., and Allen & Allen, of Cincinnati, Ohio, on the brief), for appellant.
    Wm. R. Wood, of Cincinnati, Ohio, for appellee.
    Before DENISON, MACK, and DONAHUE, Circuit Judges.
   PER CURIAM.

This appeal involves the validity and infringement of claim 6 of the patent to C. W. Wertz, 926,308, for improvements in toy pistols, issued June 29, 1909, to the appellant, as assignee of Wertz. This is a second appeal. When the case was first heard in the District Court, that court held this claim valid and infringed. That decree was affirmed by this court. After the cause was remanded, this court granted consent to this appellee to apply to the trial court for leave to reopen the case and present newly discovered evidence. That motion was sustained by the trial court upon terms. The newly discovered evidence was offered, and the District Court upon consideration thereof vacated its former decree and entered a final decree adjudging claim 6 of the Wertz patent invalid.

The motion to reopen this ease upon the ground of newly discovered evidence presented questions largely within the discretion of the trial court. The order sustaining that motion is affirmed. The important question presented upon this second appeal is whether the trial court erred in finding claim 6 of the Wertz patent invalid because anticipated by the prior patent to James W. and C. See, 747,245, dated December 15, 1903, for a detonating machine, which patent comprised all of the newly discovered evidence. The nature, purpose, and extent of the claimed invention covered by claim 6 of the patent to Wertz and defendant’s alleged infringing device are fully described in the opinion of this court upon the first appeal, which opinion is published in 272 F. 23.

Tbe detonating machine of tbe See patent is not a toy pistol, nor is it intended merely as a toy for children. In tbe language of tbe inventors, it “pertains to a machine for automatic firing detonators arranged wafer-like in series upon a tape, tbe machine being intended for use in connection with noisy celebrations.” It is not operated by a trigger at tbe will of the operator, but, on the contrary, it is claimed to be automatic after tbe first explosion, which first explosion is occasioned by raising tbe hammer and allowing it to fall, “whereupon tbe firing pin strikes tbe fulminate and explodes it. Tbe reaction of tbe explosion thrusts tbe hammer’ up and causes another fulminate to feed forward, which in turn will be exploded by tbe falling hammer and so on and on until tbe tape is exhausted.” Tbe upward movement of tbe hammer is wholly dependent upon tbe explosion, wbicb necessarily will vary in force in relation to tbe variance in tbe amount of fulminate placed upon tbe tape at spaced intervals. A pin, however, is provided, wbicb, if tbe force of tbe explosion is at all times sufficient, will regulate tbe upward stroke of tbe hammer. The spring jwbieb controls tbe feed pawl is not Attached to tbe hammer, but is operated by a projection or toe to the rear of tbe hammer, wbicb, when tbe hammer descends, strikes tbe upwardly extending member of tbe slide to which tbe spring is attached and pushes it backward) causing tbe spiral spring to extend. This extension or toe moves with tbe hammer when it raises, thereby permitting tbe spiral spring to function and push tbe feeding pawl forward, so that tbe next fulminate upon tbe tape will rest upon the anvil.

This arrangement differs materially from the claim in suit, which calls for a hammer and trigger, and a feeding spring .on the hammer, which spring is actuated immediately and positively by tbe hammer. See has no trigger, and bis spring is not on the hammer. Tbe flat springs of See have no purpose other than to bold tbe retaining pawl and the feeding pawl yielding against the tape. To this extent they are similar to tbe flat springs in Wertz, and co-operate to control tbe tape and prevent back-fire. In pushing tbe tape forward tbe spring of tbe feeding pawl does not function as a spring, other than as stated above, but only as an arm or bar through wbicb movement is imparted to tbe feeding pawl. If there were no other than tbe flat springs in See, tbe detonator would not be operative. It is tbe spiral spring in See that actuates tbe feeding pawl in its forward movement. Even if it were possible to incorporate this spiral spring as tbe motive power of either tbe forward or rearward movement of tbe feeding pawl in tbe limited space within tbe handle of a toy pistol, Wertz has wholly discarded it and utilizes tbe flat spring of the feeding pawl to furnish tbe motive power to return tbe pawl to operative position.

There is nothing new or novel in tbe flat springs, but, as incorporated into tbe See detonator, tbe combination of these springs with the other parts may amount to invention; but such combination, actuated by a spiral spring, is not an anticipation of tbe Wertz combination, having tbe flat spring of the feeding pawl, directly upon tbe hammer (or trigger), and actuated in its forward movement immediately and positively by tbe hammer, and functioning, not only to bold tbe feeding pawl yieldingly on tbe tape, but also to furnish tbe motive power of tbe feeding pawl in its rearward movement. This detonator is not clearly within tbe toy pistol part. It was not so classified by tbe Patent Office, but it was classified under subsection 54, “toy fire arms.” It is clear, however, that it was not intended as a. child’s toy, although it might be used by-children.

Even if it were conceded that this detonator is in a kindred art, and as such could be made the basis of a claim of anticipation of the Wertz patent, the structures are so fundamentally different that tbe mechanism of the detonator could not be incorporated into the handle of a toy pistol without such modification, reorganization, and rearrangement of its parts as would amount to invention. Topliff v. Topliff et al., 145 U. S. 156, 12 S. Ct. 825, 36 L. Ed. 658; Troy Carriage Sunshade Co. v. Kinsey Mfg. Co., 247 F. 672, 159 C. C. A. 574; Triumph Trap Co. v. Oneida Community Co. (D. C.) 279 F. 142.

The judgment of the District Court is reversed, and cause remanded.  