Citation Numbers: 24 F. 650
Judges: Blodgett
Filed Date: 7/27/1885
Status: Precedential
Modified Date: 9/9/2022
This is a bill to restrain an alleged infringement, and for an accounting, as to reissued letters patent No. 9,493, dated December 7, 1880, issued to tbe complainant as assignee of William H. Wheeler, the. original patent having been granted to William H. Wheeler, October 20,1874, for “an improvement in windmills;” and also as to reissued letters patent No. 6,101, granted to E. & D. C. Stover on October 27, 1884, the original patent having been granted to said parties on December 3, 1872, for an improvement in windmills ; the infringement being charged as to the first claim of patent No. 9,493, and the third, fourth, fifth, and sixth claims of patent No. 6,101. The defenses interposed are: (1) That the patents in question are void for want of novelty; (2) that the - defendants do npt infringe; (3) that the defendants are using the said patents by the license and authority of complainants and the original patentees.
The main controversy is as to the validity of reissued patent No. 9,493. Both the inventions in question are devices applicable to that class of windmills in which a flexible tail-vane or rudder is employed tp carry the wind-wheel more or less out of the wind, as the velocity increases or diminishes, for the purpose of maintaining the mill at a uniform rate of speed, or of stopping its motion entirely; and the Wheeler device consists of a weighted arm arranged at one side of the vertical or horizontal axis of the windmill, for the purpose of counteracting the lateral strain on the vertical axis of the wind-wheel, when the latter is carried obliquely to the wind, and in increasing the force of the counterbalancing weight in proportion as the strain upon the vertical axis of the windmill is increased; or, as it is now popularly known and described in the art, a counterbalancing weight of varying resistance. In all windmills in which a flexible tail-vane or rudder is employed, by means'of which the wind-wheel is turned out of the wind, some mode of initiating the turning of the wheel from its direct front to the wind, so as to carry it around out of the wind, has been found necessary; and in the first practical windmill of" this
A largo number of prior patents for windmill devices are cited as anticipating the devices covered by these two patents, but, after a careful examination of them, I do not find that they can be said to anticipate either of the devices covered by the complainant’s patents. Many, if not all of them, show weights, but they are not weights which are so arranged or adjusted as to increase the resistance as the wheel moved away from the wind, or diminish it as the wheel swung back to face the wind. I feel compelled to say, after a careful examination of the arguments of counsel, and the various illustrations presented, that it seems to me the proof is full and satisfactory to the point that William H. Wheeler was the first to apply to a practical wind-wheel the idea of a weight of varying resistance to regulate the swinging of the wheel out of or into the wind; and that the Stover patent was the first to show the mode of initiating the swinging of the wheel out of the wind, in wind-wheels, where the jointed tail-vane was used, by setting the wheel at an angle with its own axis. I must therefore find that the defense of want of novelty is not sustained by the proof.
As to the question of infringement, there can be no doubt that the defendant’s device is not only a weight of varying resistance, but it is so nearly the exact counterpart of that of the Wheeler device as to hardly have any other feature than a mere mechanical change. Whatever there is in it different from that of the complainant’s device
As to the claim that the defendant is using the device in question by the license of the complainant, or the original patentees, it appears from the proof that about September 11, 1874, the Eclipse Windmill Company, complainant in this case, was carrying on business as a manufacturer of windmills at Beloit, Wisconsin. E. & D. C. Stover were carrying on the same business at Freeport, in this state, and Harrison Woodmanse was also engaged in the same manufacture at Freeport. The Stovers were patentees and owners of certain patents pertaining to windmills, and had given a license to Mr. Woodmanse to use their patents in his business. William H. Wheeler had an application ‘pending before the patent-office for a patent for his device, covered by the patent of October 20, 1874; and the Stovers had also pending before the patent-office an application for a patent on a kindred device, and an interference had been declared between them. On the eleventh of September an agreement was made by which the Stovers admitted that Wheeler was the prior inventor of the device covered by his application, and a settlement of the controversy involved in the interference was made between the parties. At the same time a license was issued by Wheeler to the Stovers, authorizing the use by them and their licensees of the device covered by his application for the patent now in question, which license was confirmed by Wheeler after the issue of his patent; and about September 22, 1874, a large number of windmill manufacturers, among whom were the Eclipse Windmill Company, William H. Wheeler, Harrison Woodmanse, and the Stovers, formed an association for the purpose of protecting the windmill interests and patents in which they were respectively interested, by which it was agreed that each party to or member of the association might use so much of the patents owned by the other members as was necessary in building their respective mills as then constructed, so long as the association should continue in existence. It is conceded that the license of the Stovers to Harrison Woodmanse was not in force at the time this suit was commenced, nor at the time of the infringement now complained of. The proof also shows that the present corporation, the Woodmanse Windmill Company, was organized about June, 1881, and that the only color of authority or license that said corporation has for using the patent in question is an assignment from Harrison Woodmanse to said corporation of all his right to use said patent.
(The proof also shows that while the Windmill Protective Association, formed in September, 1874, may still have a nominal existence, yet. a large number of its members; including Wheeler and the pres
The bill in this ease charged the infringement by defendants of several other patents besides the ones which I have considered, but, upon the hearing, all the infringements charged were abandoned except the two patents now mentioned. No question can arise as to the validity of the reissue of this patent, because the claims alleged to be infringed in this case are the same as the claims in the original patent. The court therefore finds that the defendants have infringed the first claim of reissued patent No. 9,493, and the third, fourth, fifth, and sixth claims of reissued patent No. 6,101, and a reference to a master will be ordered to take an account of the damages; and the bill is dismissed for want of equity as to the other patents mentioned therein.