Reports of Patent, Design, and Trade Mark Cases

The Dunlop Pneumatic Tyre Company, Ld., and Others v. The New Ixion Tyre and Cycle Company, Ld.

"for strengthening the same and also to give support to the securing wires or cores e. e. which may be connected by the described nipples or the wires may "be rendered endless by brazing the ends together as before described in which case they must be inserted before vulcanizing. m. is the valve tube through "which the tyre may be inflated in the usual manner. In order to secure the 5 tyre in its place on the rim the tube m. is first pushed through the hole in the "rim a. the rubber tyre is then pulled open as shown in dotted lines which "allows it to be forced or pushed into its place, the tyre is then inflated which "causes the web or band of rubber to be pressed down tightly into the concave "grooved rim and thus preventing any displacement laterally, the tyre 10 "being held on each side by the wires or cores is therefore firmly secured "to the rim.

"To remove the tyre from the rim all that is necessary is to allow the air or gas to escape, the tyre can then be easily pulled laterally over the edge of the "rim without disconnecting the securing wires or cores. In most cases these 15 tyres may be cemented in addition to the described wires or cores for either preventing the collection of dirt or dust or to help in keeping them in position on the rims.

"The above described rubber tyres being either wholly or partly outside the "metal rims or felloes are free to expand laterally thus giving a more elastic 20 "contact with the ground and therefore reducing vibration more effectually.

"It is obvious that I may fit these improvements to various other wheels and "also vary the details of construction without however departing from my "invention.

"I would have it distinctly understood that I am aware that arched tyres have 25 "been used before also that wires and other cores have been applied in a variety "of ways.

"I am also aware that a tyre similar in form and fitted on to a similar rim to "that described by me with reference to Fig. 1, is shown in Salamons Patent "17093 but is secured to the rim by cement only, or by shrinking."

There were 18 claims, among which were the following:

"(4.) A rubber or elastic tyre having the form of a saddle or arch in section "lined with canvas in combination with two wires or sufficiently inelastic cores "for securing the same to the rims or tyres substantially as herein described. (5.) The application of endless wires or cores to each side of a rubber or elastic 35 tyre having a saddle or arched form in section in combination with a canvas "insertion or insertions for supporting the same substantially as herein described. (9.) A rubber or elastic tyre having the form of a saddle or arch in section provided with endless wires or cores fitted or vulcanized within each side for "the purpose of securing the same to the rims in combination with an inflat- 40 "able inner tyre or tube substantially as described and shown with reference "to Figs. 15 and 18 of the drawings. (10.) A rubber or elastic tyre having the "form of a saddle or arch in section, lined with canvas and provided with end"less wires or cores for covering, protecting and securing an inflatible inner "tube or tyre, substantially as herein described. (11.) Forming the inner 45 "surface or groove of a metal rim with shoulders in combination with the con"struction of tyre substantially as described and shown in the drawings with "reference to Figs. 15 and 18. (12.) Making the endless wires or cores for securing the cover or protecting tyre of smaller circumference than the edges "of the rim or felloe in combination with an inner inflatible tyre whereby the 50 "wires or cores are placed and held in position by the pressure of air substan"tially as described with reference to Figs. 15, 16 and 17 of the drawings. (13.) The method of placing the securing wires or cores with the tyres on the "metal rim namely-by holding the two wires or cores together and placing "them round the bottom of the concave groove until the remainder can be 55

The Dunlop Pneumatic Tyre Company, Ld., and Others v. The New Ixion Tyre and Cycle Company, Ld.

"forced over the edge in combination with an inner inflatible tyre whereby "the outer covering or protecting tyre is held or forced into its place on the "rim substantially as herein described with reference to Figs. 15 and 18 of the "drawings. (14.) The methods of attaching or detaching the rubber or elastic tyres on or from the rims substantially as herein described and shown in the "drawings with reference to Figs. 15, 16, 18 and 20. (16.) A rubber or elastic "tyre of a saddle or arch form in section but having a connecting web or band "of rubber at the bottom or base in combination with two wires or cores for securing the same to the rim substantially as herein described with reference 10" to Figs. 19 and 20. (17.) An inflatible rubber or elastic tyre secured to a concave grooved rim by two endless wires or cores one on each side of the tyre in "combination with a flexible band or web of rubber connecting the base and so "constructed that the pressure on the inside when the tyre is inflated causes "the said band to press tightly in the groove whereby it is firmly secured 15" laterally substantially as herein described with reference to Fig. 20 of the "drawings."*

On the 21st of October 1890, Letters Patent (No. 16,783 of 1890) were granted to William Erskine Bartlett for an invention of "Improvements in tyres or rims "for cycles and other vehicles."

The Complete Specification was as follows:-"This invention relates to tyres "which consist of a flat endless band of india rubber wider than the dovetailed groove into which it is inserted so that it assumes an arched form when in "place. I introduce between the arched outside tyre and the circular bottom "of the metal rim a tube constructed of cloth and india rubber provided with 25 "a branch for filling it with compressed air. By this arrangement the outer "band tyre may be reduced in thickness, and whilst assisting in sustaining the "the pressure (from weight) on the outer band the lateral pressure of the inside "air tube will press its edges tightly against the dovetailed flanges of the metal "rim and thus be effective in holding it more firmly against the flanges of the 30" metal rim at the momentarily bearing part of the tyre. It will be obvious "that one advantage of this arrangement is that successive outside bands or "tyres can be renewed from time to time without the necessity of wasting the "tubular air chamber between it and the metal rim, and thus greater economy "will be attainable. It will be generally most convenient to have the filling 35 "tube of the tubular air chamber projecting from the surface of the tubular air "chamber resting on the metal rin, in which a hole is bored through which to pass the filling tube.

"Where thin outer tyres are used I slightly thicken their edges where they "lie inside the trough.

"DESCRIPTION OF THE DRAWINGS.

“Figures 1 and 2 are transverse sections of wheels made according to my "invention.

"a is the outer tyre of india rubber or other elastic material. b is a metal “tyre or rim. is an air tight tubular chamber and d is the filling tube. "Having now particularly described and ascertained the nature of my said "invention and in what manner the same is to be performed I declare that what "I claim is :-(1) The combination of a grooved rim or metal tyre, and an "arched tyre of india rubber or other flexible material held in the groove by the

* This Specification will be found more fully set out in 14 R.P.C., pages 7.)-84, where also will be found some of the other Figures in the Drawings.

The Dunlop Pneumatic Tyre Company, Ld., and Others v. The New Ixion Tyre and Cycle Company, Ld.

pressure of an inflated tube within the arch which forces its edges against the "sides of the groove substantially as described. (2) Tyres or rims for cycles "and other vehicles consisting of the parts a b c combined and arranged, "substantially as described and shewn in the drawings."

On the 9th of January 1897, The Dunlop Pneumatic Tyre Company, Ld., 5 and The Pneumatic Tyre Company, Ld. (who were entitled to the said Letters Patent), commenced an action against The New Ixion Tyre and Cycle Company, Ld., for infringement of both of the said Letters Patent, claiming the usual relief and costs as between solicitor and client.

The Plaintiffs, by their Statement of Claim, alleged (1) that they were the 10 proprietors of the patents; (2) that the Patents were valid, and Welch and Bartlett were the first and true inventors of the inventions described in the said Letters Patent respectively; (3) infringement by the Defendants of both the patents; (4) that in an action brought by The Pneumatic Tyre Company, Ld., against one Henry Caswell," a certificate that the validity of the 15 patent No. 14,563 of 1890 had come into question was granted by Mr. Justice Kekewich by order dated the 19th of February 1896; (5) that in an action. brought by The North British Rubber Company, Ld., against Mackintosh and Co., Ld.,t a certificate that the validity of the patent No. 16,783 of 1890 had come into question was granted by Mr. Justice Romer by order dated the 20 12th of June 1894. The Plaintiffs, by their Particulars of Breaches, after a general allegation of infringement, alleged that the Plaintiffs complained in particular of the manufacture and sale by the Defendants of the tyres marked A, B, and C in the Plaintiffs' possession, such tyres being constructed in accordance with the inventions claimed in Claims 4, 5, 9, 10, 11, 12, 13, and 14 25 of the patent No. 14,563 of 1890 and in accordance with the inventions claimed in Claims 1 and 2 of the patent No. 16,783 of 1890.

It was subsequently before trial agreed between the parties that the Particulars of Breaches should be deemed to be amended by alleging infringement by the sale of tyres then being sold by the Defendants, the exhibit referred to as J.H., 30 being one of this class of tyres; the exhibit J.H., was one of the class of tyres of which A, B, and C were specimens.

Both in J.H., and J.H.2 there was a rubber cover with metal bands in pockets at the edges of the cover; these bands overlapped longitudinally, but the ends were not fastened together. The rim in each case was somewhat flat at the 35 bottom, and the bands when lying side by side in the rim met or slightly overlapped. In J.H., the edges of the rim were turned outwards to some extent, but in J.H., the edges were somewhat inturned, and in the latter case the pockets were looser than in the former case. The position and action of the bands when the tyres were inflated were in controversy. 40

The Defendants, by their Statement of Defence, (1) denied infringement. As regards infringement of the patent of Welch, No. 14,563 of 1890, the Defendants said that by a judgment, dated the 4th of August 1897, of the Hon. Mr. Justice Wills in an action by the Plaintiffs against the Defendants' predecessors in title, The Ixion Patent Pneumatic Tyre Company, it was adjudged that the 45 Defendants' manufacture was not an infringement of the Plaintiffs' said patent; (2) denied the validity of the said Letters Patent; (3) did not admit that any such orders or certificates, as respectively alleged in paragraphs 4 and 5 of the Statement of Claim, or either of them, were or was made.

Particulars of Objections to the validity of both patents were delivered; but 50 for the purposes of this report it is only necessary to set out the following

* Reported 18 R.P.C. 164.

Reported 11 R.P.C. 477.

Reported 14 R.P.C. 853.

The Dunlop Pneumatic Tyre Company, Ld., and Others v. The New Ixion Tyre and Cycle Company, Ld.

5 "

objection to Welch's patent, viz. :-"The final Specification of the said Letters "Patent claims an invention larger than and different from the invention dis"closed in the Provisional Specification of the said patent. The Provisional "Specification indicated an invention which was directed only to the means of fixing solid or grooved rubber tyres to convex rims, while the Complete "Specification extended to pneumatic tyres and the fixing the same to or 66 retaining the same on concave or semi-concave rims. Moreover, the nature "of the several inventions described or claimed in Claims 9 to 18 inclusive of "the Complete Specification is not disclosed by the Provisional Specification." The action was heard on April 28th, 29th, and 30th, and May 3rd and 4th, 1898, before Kekewich, J., who held that the questions raised as to the validity of the patents were concluded as regards that Court by the judgments in the previous actions above referred to, that the tyre bearing the exhibit mark J.H., was an infringement of Bartlett's patent, but that J.H., was not an infringement either 15 of Bartlett's patent or Welch's patent, and granted an injunction restraining the Defendants during the continuance of Bartlett's patent from infringing the said patent "by manufacturing or selling or disposing of or using any tyres of a "similar pattern to the exhibit J.H.,."* A short description of J.H., and J.H., will be found above.

The Plaintiffs appealed as to so much of the judgment as declared J.H., not to be an infringement of the patents or either of them, and also asked that the form of injunction restraining the Defendants from infringing Bartlett's patent might be general and not restricted to tyres of the kind marked J.H.,. The Defendants appealed from the judgment so far as it declared Welch's patent to 25 be valid, and also as to so much as declared J.H., to be an infringement of Bartlett's patent.

Moulton, Q.C., Roger Wallace, Q.C., J. C. Graham, A. J. Walter, and A. Paget (instructed by J. B. and F. Purchase) appeared on behalf of the Plaintiffs; Bousfield, Q.C., T. Terrell, Q.C., and A. W. Rowden (instructed 30 by Lewis and Lewis) appeared for the Defendants.

Moulton, Q.C., and Roger Wallace, Q.C., for the Plaintiffs, after stating the findings in the Court below and the notices of appeal, continued:-Bartlett's patent has been upheld in the House of Lords and Welch's patent has been upheld in this Court, the questions here therefore relate only to infringement. [Terrell, Q.C.35 There is a point as to Fig. 20 of Welch.] Bartlett's patent has been held to cover cases in which the cover is held on by a nip between the inturned rim and the inner tube. Welch's patent depends, not on inturning or nip, but on the inextensibility of the wires. Claim 4 is the most general claim. Most of the figures relate to tyres other than pneumatic tyres, for the invention came in the early 40 days of pneumatic tyres. When applied to the latter, the inner tube forms the convexity on which the cover sits. [The Specification was then read and with the figures explained.] Something operating as a closed wire is an essential; the Defendants' bands operate as closed wires. The Welch tyre differs from the Clincher in that it will not hold on in section. The Specification has been 45 construed by this Court in the Pneumatic Tyre Co., Ld. v. East London Rubber Co., 14 R.P.C. 573. The shape, the convexity, and the endless wires are required, but the convexity may be created at any time, and it does not matter how the inextensibility of the wires is obtained. If any one of these three things is destroyed, the tyre comes off. The Clincher and the Welch are the two types 50 of tyre. In all cases tyres pinched against the rim have been held to be within Bartlett's patent, except in the case of the Fleuss tyre, where there is no inner

*See 15 R.P.C., 389,

The Dunlop Pneumatic Tyre Company, Ld., and Others v. The New Ixion Tyre and Cycle Company, Ld.

tube; Pneumatic Tyre Co., Ld. v. Tubeless Pneumatic Tyre and Capon Heaton, Ld., 15 R.P.C., 237.* J. H., if it be really made unstretchable, is within Welch. The evidence is that it holds on by inextensibility. [VAUGHAN WILLIAMS, L.J.-It is stretchable before it is put on.] In Welch stretchability was not needed for putting on. [The judgment as to J.H., was 5 then read.] In the ordinary use of J.H., the force directly acting to keep the wires on is due to the inextensibility. If a reserve of safety that is practically required is taken away by destroying the inextensibility, then Welch's invention is used. Beyond contest Welch is in J.H., as an anchor of safety, although we admit that there may be important forces which are not found in Welch. As 10 to the alleged cone action, the radiographs negative it. There is Clincher action. as well as Welch action in J.H.; if the latter action is destroyed, the Clincher action still remains.

Bousfield, Q.C., and Terrell, Q.C., for the Defendants.-What we say on J.H., will cover everything as to Clincher action in J. H.. Clincher action is dove- 15 tail action, but in J.H., there is an edge flaring outwards. The validity of

Welch's patent is raised, and there is a point as to Fig. 20 which has not yet been decided by this Court. The first question is as to the way in which the Defendants' tyres in fact hold on. As to the evidence one experiment cannot be taken alone, for in each some alteration is made in the forces. The way of 20 holding on is entirely different from Welch. There is no tendency of the bands to separate longitudinally. In a square rim the bands actually contract. In ours there is a pressure on the bands pressing them down. Also there is the cone action, that is, the resistance of a cylinder to becoming a cone. The pull in ours is on the edge of the band next to the flange of the rim. Resistance comes 25 from shape not continuity. Unless the bands are cut the only tendency is to force each into a cone. There is in some cases a tendency on the part of the bands to buckle; therefore they cannot be in tension. As to Fig. 20 of Welch, there is disconformity. The point was decided in favour of the patent by Wills, J., in the Pneumatic Tyre Co., Ld. v. The Ixion Patent Pneumatic Tyre 30 Co., 14 R.P.C., 853. It is agreed here that the point should be decided on the same evidence as in that case. Welch must be confined to wires and the mechanical equivalents of wires, and not extended to inextensible edges, which were in Salamon's Specification. The finding of Wills, J., as to the experiments made with our tyres in a square rim was in our favour. It is the incompressibility 35 of our bands which does their work. There are local tensions, but these must be distinguished from a tension in the whole. As to J.H., all the experiments with the square rims are applicable to J.H.. The tyres hold on by the anchorage to the bands and the inturned rim is immaterial. In Welch the wires resist a longitudinal strain and no other. For the sake of conformity Welch had to 40 confine himself to a narrow construction. We do not use the principle which he claimed. Putting the wire within the rim could not be an essence of Welch's invention. The Plaintiffs are trying to enlarge the construction so as to say that if there is any tensional strain there is infringement. In fact we have no tensional action. As to the suggestion that the bands are in tension until cut, 45 and that the coning action only comes in then, the evidence of Mr. Swinburne is opposed to this.

Moulton, Q.C., was not called on as to J.H., but replied as to J.H.. In normal use J.H., is Welch. As to the third appeal the Plaintiffs are entitled to an injunction in general terms, there is no precedent for limiting it in the 50 way it has been limited.

* This judgment of the Court of Appeal has now been affirmed in the House of Lords.

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Reports of Patent, Design, and Trade Mark Cases, Volume 16