(dissenting).
It is my opinion the claims in suit of patent 1,890,871 are not infringed and the claims in suit of patent 1,897,014 aie invalid, and I therefore concur in the majority opinion in so far as it affirms the decree below with respect to those claims.
As to the claims in suit of patent 1,834,-907, it is my opinion that they are valid and infringed, for reasons I shall undertake to state.
An internál combustion engine consists of a number of cylinders, provided with pistons which are connected by a connecting rod with the engine crankshaft from which the driving power of the engine is derived. In the operation of the engine, the pistons or groups of pistons are successively forced downward by the pressure produced from the explosion of the fuel mixture. It is a law of physics that. for every action produced by force there is an equal and opposite reaction. Hence, for each impulse of driving torque applied by the pistons to turn the crankshaft, there is an equal and opposite torque reaction upon the engine causing it to turn in the opposite direction. In other words, when in operation, the engine rocks or oscillates upon or about an axis extending from the front to the rear of the engine.
Prior to Trott’s conception, the efforts to overcome the effect of torque reaction had been directed at restraining and cushioning if.
Trott’s approach to the problem was new. He conceived the idea of mounting the engine pivotally at the front and rear and permitting it to oscillate on the pivotal mountings with but slight resistance effected by torque arms cushioned in rubber or spring mountings.
The result sought to be attained in the inventions of the prior art is illustrated by a statement in the Royce patent 1,108,242. After describing his invention, Royce says:
“It will be seen by this construction before any movement of the engine can take place the frictional resistance between the disk and the friction face must be overcome, the result of which is that the engine is prevented from getting into a state of oscillation due to the recoil of the springs.”
In his specification, Trott states that he accomplished the object of his invention “by providing pivotally resilient mounting means between the engine or power plant unit and its support adapted to carry substantially all of the weight but to transmit substantially none of the torque reaction; and a second means or torque connection between the engine or power plant unit and its support adapted to transmit the torque reaction but to carry substantially none of the weight.” '
The front and rear pivotal mountings, carrying substantially all of the weight, transmit substantially none of the torque reaction because the engine oscillates therein with substantial freedom.
The other means act as stabilizers to keep the engine from swinging too far and to slightly restrain the oscillatory movement. Because they carry practically no weight, they may be resiliently mounted or cushioned to a greater degree than would be true if they served as a primary support. When thus resiliently mounted, although they slightly restrain the torque reaction, they transmit substantially none of it' to the frame.
In the foregoing respects, I find no patent and no publication in the prior art which discloses Trott’s conception for preventing torque reaction from being transmitted to the frame on which the engine is mounted.
I conclude his conception is novel, useful, and rises to the dignity of invention.
*148Trott believed that the axis of oscillation passed through the horizontal center of the crankshaft.1
The alleged infringing devices are constructed in accordance with the Lee patent 1,902,509 applied for June 6, 1931, and granted March 21, 1933, and assigned by-Lee to his employer, Chrysler Corporation.
Lee discovered the axis of oscillation in such engines was through the center of mass. The center of mass is above the crankshaft. The rear pivotal mounting has to be approximately in line with the crankshaft because of the connection between the power plant and the gears and driving shaft. Hence, it is not practical to provide a true horizontal axis passing through the center of mass by positioning both the pivotal mountings above the crankshaft. Lee therefore mounted the rear pivotal mounting in line with the crankshaft and positioned the front pivotal mounting sufficiently above the crankshaft level to obtain an inclined axis between the two passing through the center of the mass.
When the pivotal mountings are below the axis which passes through the center of mass, the engine in rocking will have a greater side thrust or transverse action than when the mountings are common with an axis passing through the center of mass. While mounting the engine below the center of mass will result in such side thrust, it does not render the device inoperative. This was shown by the practical devices constructed in accordance with patent 1,-834,907, and demonstrated to the court at the hearing.
Lee in his patent 1,902,509, adopted Trott’s basic conception of dissipating the vibration by permitting it to rock or oscillate on pivotal mountings, with slight, resilient resistance, but having discovered that the axis of oscillation was above the line of the crankshaft, he improved Trott’s conception by raising the position of the front pivotal mounting.
It seems to me the question of infringement turns on whether Lee created a new conception or merely improved Trott’s main conception.
Robinson On Patents, at section 210, defines improvement as follows:
“An improvement is an addition to or alteration in some existing means, which increases its efficiency without destroying its identity. It includes two necessary ideas: first, the idea of a complete and practically operative art or instrument, either natural or artificial, as the original to be improved; and second, the idea of some change in such art or instrument, not affecting its essential character, but enabling it to produce its appropriate results in a more perfect or a more economical manner. When such a change involves the exercise of the inventive faculties it is a true invention and is known as an improvement.”
*149For years the automobile industry had sought a means of eliminating the effect of engine vibration imparted to the frame of the motor vehicle. Efforts had been made to do this by cushioning the mountings carrying the engine, by restraining the oscillation, by changing the vibration ratio at the different points of mounting, and other means none of which had proved satisfactory.
Trott ascertained that the result of the torque reaction in a motor vehicle is to cause it to rock or oscillate on a horizontal axis. He conceived the idea of letting it oscillate freely on pivotal mountings, front and rear, in line with the axis of oscillation. He did not discover the true axis of oscillation.
Lee took Trott’s basic conception, disclosed by Trott to Chrysler Corporation, elevated the front mounting so as to put the mountings in line with the true axis of oscillation, and by so doing eliminated the side thrust and obtained an improved - result. He employed Trott’s idea of permitting the engine to oscillate freely on front and rear pivotal mountings carrying the weight of the engine. He did not change the essential character of Trott’s conception, but made a change which enabled it to produce its appropriate result in a more perfect way. I conclude that Lee merely effected an improvement; and that defendants’ devices infringe patent 1,834,907.
Hence, as to that patent, I think the decree below should be reversed; and respectfully dissent from the majority opinion in so far as it affirms the decree below with respect thereto.
1. In his specification in patent 1,-890,871, he said:
“The result of this re-action is a tendency to revolve the engine about its crankshaft as a center of rotation;
Hi * #
“Each explosion of the engine which tends to make it revolve about its crankshaft. * * *
“The vertical position of the rear power plant mounting, I prefer to be as shown in Figure 1, that is, concentric with the crankshaft, for the reason that the torque of the engine tends to rotate or oscillate the engine about its crankshaft as a center, and such concentric mounting will generally give better results.”
In his specification in patent 1,834,907, he said:
“These pivotal mountings may be concentric with the crankshaft 7 of the engine, or vertically or laterally spaced therefrom within reasonable limits, and depending on conditions and requirements.
“That is, if not concentric with the engine shaft, these pivotal mountings may be located in the longitudinal central vertical plane of the power plant unit if the weight thereof will thus be balanced, or laterally off center in either direction if the weight of the power plant unit is not equally distributed on either side of said plane.
“Or, if it is desired to use part of the weight of the power plant unit to oppose the torque reaction or to add to this reaction, these pivotal mountings may be laterally off-set an amount in the proper direction to give the result desired.
“However, I prefer mountings at both ends of the power plant unit to be as near as practical to concentric with the engine crankshaft, and that they shall carry substantially the entire weight of the power plant unit. When the pivoted mountings are concentric with the engine crankshaft, the engine unit oscillates in or on the mountings incident to the operation of the engine, and about an axis coincident with the axis of the engine crankshaft.”