Weidhaas v. Loew's Inc., 134.

Citation125 F.2d 544
Decision Date21 January 1942
Docket NumberNo. 134.,134.
PartiesWEIDHAAS v. LOEW'S Inc. et al.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Samuel E. Darby, Jr., of New York City (Darby & Darby, Samuel D. Cohen, and Walter A. Darby, all of New York City, on the brief), for appellants.

Edward Siegel, of New York City, for appellee.

Before AUGUSTUS N. HAND, C. E. CLARK, and FRANK, Circuit Judges.

C. E. CLARK, Circuit Judge.

Defendants appeal from a decision holding that they have infringed plaintiff's Patent No. 1,756,043, granted April 29, 1930, for a "Stage Curtain or Drop." The first defendant (who has assumed the entire defense) did not deny that there is infringement if the patent is valid, and the trial and decision were consequently directed solely to the issue of whether or not the claims in the patent represented sufficient advance over prior art as to be worthy of an exclusive right, thus promoting the "Progress of Science and Useful Arts" in the constitutional phrase. The district court upheld the patent. D.C.S D.N.Y., 41 F.Supp. 315. We do not.

The device involved here is well known to the large number of people who have seen the great curtain at the Radio City Music Hall in New York City. That curtain can be raised and lowered in such a way that various designs are presented. Although the curtain appears as a unit, separate ropes or cables, attached to the bottom of the curtain at spaced intervals and drawn up independently, can produce numerous variations — from scalloped effects when the entire curtain is completely raised to partial openings in order to reveal only a part of the stage. The defendant's curtains, used in the production of movies, are similar to the well-known Radio City curtain.

Plaintiff's patent covers the device of raising the curtain by several ropes independently operated. He also has a patent on operation of the curtain by electrical means; but allegations that this patent was infringed were withdrawn, and only the device itself is in issue. In his patent, plaintiff made eighteen separate claims, all of which were held valid and infringed by the district court. As is frequently the case, the eighteen claims say much the same thing in different ways; and for our purposes, it is sufficient to state the salient points. Plaintiff claims a curtain-raising device comprising several cords attached to the curtain, pulleys, and cleats, or other device for securing the cords; some kind of flexible weight in the bottom of the curtain, so that it will keep its shape; and excessive curtain material, so that changes of shape are feasible.

In its attack on validity, defendant relies on what is known as the Austrian shade and the literature about it. The first bit of literature, dating back to 1889, is an article on decorative upholstery. It describes the Austrian shade, which was a decorative window shade, with pleasing loops at the bottom made by extra material below the crossbar drawn up by cords through the material to its top. The description made it clear that the raising of the curtain...

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7 cases
  • RM Palmer Company v. Luden's, Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • 22 Agosto 1956
    ...Co., 1 Cir., 1944, 140 F.2d 419, 423; Brown & Sharp Mfg. Co. v. Kar Engineering Co., 1 Cir., 1946, 154 F.2d 48, 51; Weidhaas v. Loew's, Inc., 2 Cir., 1942, 125 F. 2d 544, 545; Foxboro Co. v. Taylor Instrument Co., 2 Cir., 1946, 157 F.2d 226, 234; Robertson Rock Bit Co. v. Hughes Tool Co., 5......
  • Hanovia Chemical & Mfg. Co. v. David Buttrick Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • 23 Abril 1942
    ...too numerous to cite but the case of Potts v. Creager, 155 U.S. 597, 15 S.Ct. 194, 39 L.Ed. 275, and the recent case of Weidhaas v. Loew's, Inc., 2 Cir., 125 F.2d 544, are We have been unable to find any analysis by any court justifying this latter technique of decision in view of the repea......
  • Ronning Machinery Co. v. Caterpillar Tractor Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • 16 Julio 1942
    ...in raising and lowering the grader blade, that teaching was no stroke of genius but merely ordinary skill at work. Weidhaas v. Loew's, Inc., 2 Cir., 125 F.2d 544. Arndt is said by plaintiffs to have been the first to suggest a road grader in which the blade could be adjusted to a vertical p......
  • Dubil v. Rayford Camp & Co.
    • United States
    • U.S. District Court — Southern District of California
    • 23 Mayo 1949
    ...a patent. Heath v. Frankel, 9 Cir., 153 F.2d 369; Standard Parts, Inc., v. Toledo Pressed Steel Co., 6 Cir., 93 F.2d 336; Weidhaas v. Loew's, Inc., 2 Cir., 125 F.2d 544, in which certiorari denied, 316 U.S. 684, 62 S.Ct. 1285, 86 L.Ed. 1757. The evidence discloses that prior uses the proces......
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