Joseph McKenna

“ Aside from those contentions and the ability by which they are supported, we might point to what it does as a demonstration of its difference from all that preceded it, that there is something in it, attribute or force, which did not exist before,-something which is the law of its organization and function, and raises it above a mere aggregation of elements to a patentable combination. And we may say, in passing, the elements of a combination may be all old. In making a combination the inventor has the whole field of mechanics to draw from. ”

“ The first ground is a somewhat distant assertion that the tire does not involve invention, but as to that we have sufficiently expressed opinion. The second ground is an inversion of cause and effect, and there is an obvious answer to the third ground. Without suitable rubber, there could have been no rubber tires, and the desire for them necessarily induced their manufacture, and Grant exercised invention to produce an efficient one. ”

“ The respondents the tire company contend that the tire is at once firm and mobile in its channel, 'creeps' (moves slowly around the edge of the rim) , and will yield laterally, and thus the lateral blows against it will be cushioned. It is further contended that if the tire be 'tipped from its seat in the channel by a side blow' it 'automatically restores itself to normal position when the side pressure is released.' In other words, and in the language of one of the expert witnesses, the tire has the capacity to rise and fall and reseat itself under lateral strain ”

“ We can understand that some advertising was necessary to bring it into notice, and give it a certain use, but the extensive use which it attained, and more certainly the exclusive use which it attained, could only have been the result of its essential excellence, indeed, its pronounced superiority over all other forms. Here, again, in our discussion, a comparison is suggested between it and other tires, and the inquiry occurs why capital has selected it to invest in and advertise, and not one of the tires of the prior art, if it be not better than they? ”

“ The tire company gives a definition of the 'something' as tipping and reseating power. The rubber company earnestly denies the existence of the power, and, as we have seen, the courts of appeals of the sixth and second circuits divided in opinion on its existence. We think such power is possessed by the tire. ”

“ That the tire is an invention is fortified by all of the presumptions,-the presumption of the patent by that arising from the utility of the tire. And we have said that the utility of a device may be attested by the litigation over it, as litigation 'shows and measures the existence of the public demand for its use.' Eames v. ”

“ A vehicle wheel having a metallic rim with angularly propelling flanges to form a channel or groove with tapered or inclined sides, a rubber tire, the inner portion of which is adapted to fit in said groove or channel, and the outer portion having sides at an angle to the inner portion, the angle or corner between the outer and inner portions being located within the outer periphery of the flanges, and independent retaining wires passing entirely through the inner portions of said tire and also within the outer peripheries of the flanges, substantially as described. ”

“ Knowledge after the event is always easy, and problems once solved present no difficulties, indeed, may be represented as never having had any, and expert witnesses may be brought forward to show that the new thing which seemed to have eluded the search of the world was always ready at hand and easy to be seen by a merely skillful attention. ”

“ Many things, and the patent law abounds in illustrations, seem obvious after they have been done, and, 'in the light of the accomplished result,' it is often a matter of wonder how they so long 'eluded the search of the discoverer and set at definance the speculations of inventive genius.' Pearl v. ”

“ We have shown the litigation to which the grant tire has been subjected.
We have taken for granted in our discussion that the Grant tire immediately established and has ever since maintained its supremacy over all other rubber tires, and has been commercially successful while they have been failures. The assumption is justified by the concession of counsel. They do not deny the fact, but attribute it to 'three subsequent discoveries and conditions' since the Grant patent, these being- (1) 'that the tire can be held in place and fixed upon its base by straining the wires to a clamping point ”

“ In its narrow and humble form it may not excite our wonder as may the broader or pretentious form, but it has as firm a right to protection. Nor does it detract from its merit that it is the result of experiment and not the instant and perfect product of inventive power. ”

“ The exhibits demonstrate the contrary. And we are fortified in this by the conduct of the rubber company in the circuit court. The defense of nonfringement was not there seriously urged. After considering to what extent the case, as presented, differed from the prior litigation, Judge Holt said: 'Of course, if your defense was that this defendant does not infringe, that would be an entirely different question; but the only question argued here is as to the validity of the patent.' In the opinion of the court of appeals, noninfringement received no attention ”