Tulchin v. Perey Mfg. Co.

AUGUSTUS N. HAND, Circuit Judge

(dissenting).

While no anticipation of the patent in suit is found in the prior art, Tulchin in making his turnstile followed generally the old drop-arm type and, I believe, consciously departed from the prior structures only in detail. A considerable number of .drop-arm turnstiles had been patented, but apparently none met with any commercial success or even went into use. The plaintiff has not manufactured or sold any turnstiles made under his patent. The advantage of the defendant’s structure which has met with substantial success is, I think, due to the fact that the arms arc rigidly attached to the rotatable head and rotated in a plane sufficiently out of the horizontal so that they occupy little lateral space. It was the first to put any such device on the market.

If the Tulchin patent has any novelty, it is because the barrier arms are kept by the guideways in a plane passing through the axis of rotation of the head. This is true of the particular barrier arm that bars the entrance to the turnstile shown in the German patent to Lambertsen, and in that patent also the head is mounted obliquely to the axis of rotation. In Lambertsen’s device slots were inserted in the head to hold each barrier arm in position as it came up to bar the entrance to the turnstile. These slots, like the shelf in the wall shown by Tulchin, furnished support for the barrier arm which closed the entrance. The remaining arms not immediately needed to bar the gateway like the corresponding arms in the patent in suit dropped out of the way and until they *306came up again occupied no lateral space. The difference between Tulchin and Lambertsen is that the latter had no guide-ways like Tulchin’s to keep these arms in the plane of the axis of rotation of the head. But in neither device did it make any difference in what plane the bars which had dropped down so as to be out of the way were rotating. While it may have been more desirable to have those arms carried in a fixed plane to the axis of rotation, they were for the time being but an unused element in a mechanism which had never got beyond the stage of a paper patent.

The defendant Perey Manufacturing Company did not save space by the use of a drop-arm turnstile, but has manufactured one with arms rigidly attached to the rotatable head. In its structure three arms thus rigidly affixed and moving in a plane passing through the axis of. rotation of the obliquely mounted head take the place of the drop arms pivoted on an obliquely mounted head shown in the patents of Lambertsen and Tulchin. Tulchin has followed che teachings of Lambertsen and in general other designers of drop-arm turnstiles, while defendant has employed an entirely different device. Neither Lambertsen nor Tulchin thought of the use of bars rigidly attached to an obliquely mounted rotating head. That was the useful contribution of defendant’s turnstile to the art. The obliquely mounted head was already shown in the Lambertsen patent. Tulchin’s idea of keeping drop arms in a fixed plane by means of his guideways was a conception adapted for use with drop arms. It in no way embodied the notion that rigidly attached arms would be employed or set at a fixed plane to the axis of rotation, though such rigidly attached arms if used would inevitably be set at a fixed plane. The novelty was in Lambertsen, who first used an obliquely .set rotating head.

The quadrant plates of Tulchin set at a fixed angle to the rotating head were a substitute for the cams of Lambertsen. Defendant, casting aside both cams and quadrant plates, attached the barrier arms to the head rigidly. An obliquely set head was not new. The combination described in Tulchin’s patent involved drop arms and in no way suggested such a structure as defendant employs. In view of Lambertsen and other designers of turnstiles of the prior art, Tulchin should be confined to the sort of structure his patent shows. If so limited, defendant does not infringe. Accordingly, I think the decree should be affirmed.