
    TUCKER BROS. MFG. CO. v. SPOKANE TOOL & DIE WORKS et al.
    Circuit Court of Appeals, Ninth Circuit.
    March 18, 1929.
    No. 5606.
    
      Percy S. Webster, of Stockton, Cal., and A. E. Russell, of Spokane, Wash., for appellant.
    Arthur W. Davis and D. B. Heil, both of Spokane, Wash., for appellees.
    Before RUDKIN and DIETRICH, Circuit Judges, and BEAN, District Judge.
   RUDKIN, Circuit Judge.

This is an appeal from a decree dismissing a suit for -infringement of letters patent No. 1,411,391. The subject matter of the patent is a shim or washer adapted for use in tightening the spokes of automobile wheels, which have become loosened through wear or shrinkage. The present suit involves only claim three of the patent, which reads as follows: “A spoke tightener comprising a shim provided with an orifice adapted to receive the tenon of a spoke and to be positioned between the spoke and felly of a wheel, an opening leading to the orifice from the outer edge of the shim whereby the shim may be slid into position, and a downtumed edge about the periphery of the shim adapted to bite into the felly.” The appellant concedes that there was no infringement, unless the. shims manufactured by the appellee have a down-turned edge about the periphery, as defined in the above claim.

One of the manufacturers of the shims put out by the appellee testified that they are not made with a down-turned edge; that any roughness appearing on the edges is caused by the dullness of the tools used in their manufacture; that in manufacturing shims the tools will be sharp at the start and will not leave any kind of a down-turned edge or burr, but, after they have been run for a while, the shims may possibly show a very fine edge, which the manufacturers attempt to avoid by sharpening the tools as often as possible. An inspection of the shims offered in evidence tends to confirm this view, and such was the opinion of the court below: “As I see it, the defendants’ device is nothing more than a U-shaped shim, with a notch on either side of the inner edges adapted to bite or press into the tenon of the spoke. With respect to the contention that it has a downtumed edge about its periphery, I will say that an examination of many of the devices convinces me there is no downtumed edge, save sueh as is necessarily and incidentally made by the process of stamping the shims out of the metal from which they are manufactured. If Claim 3 should be construed to cover a U-shaped shim or washer, merely because of sueh an edge, I should be inclined to hold this claim invalid.”

The decree is affirmed.  