199 F.2d 740 (9th Cir. 1952), 13132, H. Wenzel Tent & Duck Co. v. White Stag Mfg. Co.

Docket Nº:13132.
Citation:199 F.2d 740, 96 U.S.P.Q. 25
Party Name:H. WENZEL TENT & DUCK CO. v. WHITE STAG MFG. CO. et al.
Case Date:October 30, 1952
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 740

199 F.2d 740 (9th Cir. 1952)

96 U.S.P.Q. 25

H. WENZEL TENT & DUCK CO.

v.

WHITE STAG MFG. CO. et al.

No. 13132.

United States Court of Appeals, Ninth Circuit.

October 30, 1952

Page 741

         Orme E. Cheatham, Portland, Or., Edmund C. Rogers, St. Louis, Mo. (Buckhorn & Cheatham, Portland, Or., and Kingsland, Rogers & Ezell, St. Louis, Mo., of counsel), for appellant.

         Samuel B. Weinstein and L. R. Geisler, Portland, Or., for appellee.

         Before STEPHENS, HEALY and BONE, Circuit Judges.

         STEPHENS, Circuit Judge.

         The H. Wenzel Tent & Duck Co., hereafter called plaintiff, brought suit against the White Stag Manufacturing Co., hereafter called defendant, for allegedly infringing plaintiff's patent on a self-cooling cotton canvas water bag. Defendant interposed by way of defense evidence as to its claimed manufacture and sale to the public of a substantially identical product more than one year prior to plaintiff's original patent application. The district court held that since 1940, more than one year before plaintiff's original filing date, there had been 'a public use and a disclosure to the public that cotton fabric treated with paraffin to restrict the passage of water through the fabric entirely waterproof could be used in place of flax canvas in making self-cooling water bags', and that plaintiff's patent had been anticipated by prior public use and was 'inadvertently granted'. Judgement was awarded to defendant, and plaintiff appealed.

         It has long been known that water in a porous container can be kept cool by the limited seepage and evaporation of the water from the outer surface of the container. A flax bag soaked for twenty-four hours has proved to be a satisfactory self-cooling water bag since the seepage rather nicely equals the evaporation necessary for cooling. With the outbreak of war in Europe in 1939, it became increasingly difficult in the United States to obtain flax. Because of such difficulty the Hirsch-Weis Canvas Products Co., defendant's predecessor, manufactured and sold to the public during 1940 and 1942 several thousand non-flax bags made of 13-ounce cotton duck treated with paraffin wax. The treated fabric used was called 'Raintest' and was water-repellent though not waterproof. In a water-repellent fabric, like one made of flax, interstices are not entirely closed but are restricted, allowing limited seepage which, upon evaporation, cools the retained water. There is evidence that the 'Raintest' bag was discontinued in 1942 because the War Production Board refused the allocation of cotton for water bag use.

         On September 24, 1941, more than one year after the sale of the 'Raintest' bags had begun, plaintiff filed an application for a patent on a self-cooling cotton water bag. Plaintiff's application proposed that cotton canvas be treated with a paraffin wax emulsion bath. It was claimed that this process would permit sufficient evaporation to keep the water in the bag cool; and that since paraffin would be used as the agent to restrict the flow of water, there could be no objectionable aroma or souring of the water. 18-ounce duck was recommended as the most satisfactory weight.

Page 742

         No patent was issued on plaintiff's 1941 application.

         In March, 1943, the Rohm & Haas Co. at the request of the Army Quartermaster Depot independently developed a self-cooling cotton water bag. Under the Rohm & Haas process the fabric was treated with a resin which satisfactorily restricted the pores without actually closing them, and this processed bag was in one respect more satisfactory than plaintiff's paraffin wax treated bag. Paraffin wax has a relatively low melting point. Therefore after a bag so treated was once exposed to heat the paraffin would soften and allow the pores of the bag to open and enable the water to seep through at an increased rate. However, when the temperature dropped the wax would not retract. Resin, on the other hand, has a relatively high melting point and the bag treated with it would more closely equate the seepage and evaporation. The army used the Rohm & Haas bag in 1943 and 1944. It was never patented.

         On April 25, 1945, plaintiff filed a second application for a patent which was a 'continuation-in-part' of the first application. By filing a 'continuation-in-part' instead of an entirely new application, plaintiff sought to take advantage of the earlier filing date of the first application. In its 1945 application plaintiff claimed that a self-cooling cotton water bag could be produced if the cotton fabric was treated with either 'a liquid...

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