c37:No. 3106

MORTON, Circuit Judge (dissenting).
I regret that I- am unable to agree It seems to me that the decision does real injustice to a meritorious invention.
The problem was to make a twisted string of silk having a certain colored strand wound in an even spiral on the outside of it throughout its length. It had never been done until the patentee accomplished it. His method was copied by ibe defendant, his chief competitor, before the patent was out of the office and is still being used by the defendant. No other way of accomplishing the desired result is known. In the face of these facts it is held that the patent did not involve invention.
Yarns and strings are generally made on twisting-spindles, or similar machinery, several strands being brought together and twisted into one. The result which Hamburger had in mind could not be obtained in that way because it was impossible in that process to control the final position of the identifying strand and keep it on the outside of the completed string. He solved the problem by resorting to an entirely different principle. Prior patents on twisted strings made in that way are not pertinent to the present question; nor are those dealing with strings formed by winding a wire or a yarn on a central cord. Hamburger’s process goes back to the method used in making rope or cable, in which the different strands forming the cable are laid together parallel for the full length of the cable and are then twisted together. Many persons will remember the long rope-walks often seen near maritime cities. Hamburger, instead of feeding his silk strands to a twisting device to be made into a string, began by laying them out straight side by side in a flat web. The strands of a cable are held in position by their surface friction against each other. Silk fibers are not sufficiently rough on the surface to be worked in that way; they will not hold their positions and interlock with each other, as manila or cotton will. Hamburger caused the silk strands to hold together by running them through a hath of adhesive. He did this while they were in the form of a flat web so as to give each fiber an even coating. Then he hunched or rolled the flat web, wet with adhesive, into a round string and pulled it out straight ready to he twisted. It was, of course, possible to have introduced a colored fiber into the web and to have twisted it with the web; but if this had been done the colored thread would have appeared in the completed string in a hit and miss way, not as a regular spiral around the outside of it — which was what it was desired to accomplish.
The way in which Hamburger solved this part of the problem was as follows:
When the wet fibers were bunched into round form referred to as a “cord,” he stuck on one side of the cord lengthwise a strand or fiber of the desired color. The cord was stretched tauter than the colored strand and the latter was therefore longer than the fibers to which it was attached, as it had to be in order to take a position on the outside of them when the bundle was twisted. At this point the process seems to me nothing short of brilliant in its recognition of the difficulties involved, and in how each could be overcome by means which were capable of being united into an effective process. The whole bundle was then twisted into a completed string. The initial position of the colored strand on the outside of the round form, its additional length and less tension, acted together to keep it on the outside during the twisting and brought it into a regular spiral on the completed string; and the exuded glue twisted out of the cord fibers assisted in retaining the colored strand and providing a finishing coat for the completed string.
To say that this process did not involve invention because banjo strings had been made of wire wound around a cord, or paper and yarn had been twisted together in various ways, seems to me to miss the point of Hamburger’s invention entirely.
I am still less able to see that he was at fault for not more fully describing his invention. What I have said is merely an elaboration of the claim in suit; and I venture to believe it is quite enough to enable a person skilled in the art to work the Hamburger process. It was the Patent Office which compelled him to divide his application and patent separately the “trumpet” or “funnel” used as a mechanism in carrying it out. In the majority opinion it is said “that the process of the patent * * contains no appreciable advance over what' had been done, etc.” It is, however, certain that Hamburger did something which had never been done before, which nobody knew how to do before, and which nobody to-day — so far as the record shows — -knows how to do any other way. In my opinion, it is a brillant little patent, the second claim of which is clearly good and clearly infringed.

Passage view · GavelSight