Opinion
No. 5307.
Argued January 13, 1932.
Decided February 8, 1932.
Appeal from the Supreme Court of the District of Columbia.
Suit by the Titeflex Metal Hose Company against Thomas E. Robertson, Commissioner of Patents. From a decree of the Supreme Court dismissing the bill, plaintiff appeals.
Affirmed.
Robert Watson, of Washington, D.C., and Thomas Howe, of New York City, for appellant.
T.A. Hostetler, of Washington, D.C., Solicitor for United States Patent Office, for appellee.
Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, HITZ, and GRONER, Associate Justices.
Appeal from a decree in the Supreme Court of the District dismissing appellant's bill, filed under the provisions of section 4915, R.S. (35 USCA § 63), for the granting of a patent on the combination of an inner corrugated tube re-enforced by a braided covering.
Of the five claims, claim 2 is representative, and reads as follows: "The combination with a corrugated tube depending for its flexibility on relative movement of the corrugation sides, of stands helically wound about said tube in opposite directions, bearing against said corrugations and connected to the ends of said tubes."
On September 12, 1916, appellant's assignor, Brinkman, was granted a patent, No. 1198392, on the tube of the present application. It was found that the pulling and twisting to which the tube was subjected while in use had a tendency to injure it by expanding or spreading the corrugations. It was to overcome this weakness that the present combination was resorted to. The combination met with popular favor and superseded the old tube. While commercial success is an element to be considered on the question of novelty, it is not controlling. McClain v. Ortmayer, 141 U.S. 419, 425, 12 S. Ct. 76, 35 L. Ed. 800; Grant v. Walter, 148 U.S. 547, 556, 13 S. Ct. 699, 37 L. Ed. 552; Ide v. Ball Engine Co., 149 U.S. 550, 13 S. Ct. 941, 37 L. Ed. 843.
The tribunals of the Patent Office rejected the application on the ground that it did not involve invention to apply to the old Brinkman tube (one of the elements of the claims) the equally old braided covering of the references.
The patent to Rudolph, No. 1054244, February 25, 1913, discloses a flexible pipe "formed by a suitably shaped helically wound strip of metal the edges of which interlock." To protect this flexible metal tube, Rudolph discloses "a sheath or cover formed of a metallic plait or braid," which is like the covering provided by appellant on its tube. While it may be that Rudolph did not fully appreciate all the advantages of his covering, it is nevertheless true that it was capable of functioning quite as efficiently as that of appellant's. It certainly would prevent elongation and twisting of the tube.
The patent to Kelso, No. 606557, June 28, 1898, discloses a "flexible metallic sheathing for tubes and ropes," which is substantially the same as appellant's. Its object, according to the specification, was "to increase the strength of the article incased either against tensile strains in the case of tubes or ropes, against lateral pressure in tubes, against the collapsing of tubes when a vacuum is formed within the tubes, and against abrasion of tubes, ropes," etc.
The patent to Witzenmann, No. 933516, September 7, 1909, discloses a flexible metal tube with a braided covering substantially like appellant's.
When, therefore, appellant discovered that some protection to his tube was necessary to insure its durability, he had available to him the solution of a similar problem by Rudolph, Kelso, and Witzenmann. While the tubes of Rudolph and Witzenmann differed slightly in construction from that of appellant, the covering is the same and functions in substantially the same manner.
We are constrained to the view that, given the problem, one skilled in the art would have had no difficulty in overcoming it through the knowledge obtained from the references; in other words, that the Patent Office was right.
Decree affirmed.
Affirmed.