Bacon

Complaint and cross-complaint for infringement of patents for tire retread devices. Relief was denied both parties, and both appeal.

Plaintiff, Super Mold Corporation of California, sued for infringement, of claims *861 1, 5, 6, 7 and 13 of Smith patent No. 1,662,-035, issued March 6, 1928. This patent we held valid in Goodman v. Super Mold Corp., 9 Cir., 103 F.2d 474 , rehearing denied 109 F.2d 442 . It is for the combination with a retread device, of rings to press against the sides of the tire to force the tread against the matrix, both by “toggle action” of the tire side walls, and by compression of a resilient pad placed within the tire. Defendant cites against the patent two prior patents not cited in the Goodman case; the trial court held neither amounted to anticipation.

One of these is Gillam No. 1,604,034, issued October 19, 1926, for a device for making new solid rubber tires. It has a series of pins, attached to a movable ring, which are moved into the unvulcanized tire after the mold is filled, both to force the viscous rubber against the tread matrix, by displacement, and to form holes through the tire, from side to side, which give it more flexibility. Defendant…

(dissenting).

Our decision in Goodman v. Super Mold *863 Corporation of California, 9 Cir., 103 F.2d 474 , decided that claims 1 and 13 of patent No. 1,662,035 were valid and not anticipated by patent No. 1,101,732 issued to Dough? ty, and with respect to the Doughty patent that question is determined.

Since the patents now relied upon as anticipatory were not before the court in the Goodman case, I think we could well re-examine the question of the validity of the Smith patent No. 1,662,035. Smith v. Hall, 301 U.S. 216 , 57 S.Ct. 711 , 81 L.Ed. 1049 .

One of the patents now relied on is the patent to Gillam, No. 1,604,034 issued October 19, 1926.

The only point of novelty in the two claims of the first patent found in the Goodman case, was the adjustable pressure rings. Gillam patent discloses a two-piece mold which has annular rings to which are attached a plurality of pins. By moving the rings toward each other, the pins are pressed into the side of the tire. To be identical, the mold would have to be made hollow, and a larger inside diameter so that it would not cover the walls of the tire and the pins would have to be removed so that the rings themselves would press the…