Kilmer Manuf'g Co. v. Griswold

SHIPMAN, Circuit Judge

(dissenting). The reason of my dissent from the conclusions of the majority of the court is as follows: The improvement in No. 372,375 consisted in the substantial separation of the elastic ends of the clasp, so that, when pulled together by the expansion of the bale, they would give to the clamp a gripping action. I agree with Judge Ooxe that the device of the Foote patent (No. 139,-899), upon which, apparently, the most reliance was placed by the defendants’ experts, was not an anticipation, and for the reasons which he states. The device of the F. B. Griswold patent, No. 322,-M2, dated July 21, 1885, is regarded by the majority of the court aa embodying the idea of closing the sides of the clamp, and thereby gripping the tie wire in so substantial a manner as to preclude the existence of patentable invention in the device of the second claim of No. 372,375. As luis been said, the improvement in this claim consisted in the separation at some distance from each other of the elastic ends of the clasp. The clamp of the El B. Griswold patent was an eye formed by doubling the tie wire back upon itself, twisting the two parts together, leaving, an untwisted place to form the eye, and then twisting the two parks together again. At each end of the eye the wires dose together, and form an angle. Tt is true that by the strain of the expanding bale the sides of the eye are probably brought together so as to hold more firmly the wire in its clutch, and that thus Griswold had in his mind the idea of a gripping movement. Kilmer made this idea far more available by separating the sides of the clamp, giving them loose play at the end opposite the V-shaped angle, so that the gripping action, when they were pulled together, was powerful. In my opinion, Kilmer’s departure from Griswold’s attempt at a gripping action was sufficiently marked, substantial, and operative to constitute invention.