233 F.2d 71 (9th Cir. 1956), 14711, Coleman Co. v. Holly Mfg. Co.

Docket Nº:14711.
Citation:233 F.2d 71, 109 U.S.P.Q. 204
Party Name:The COLEMAN COMPANY, Inc., a corporation, Appellant, v. HOLLY MANUFACTURING COMPANY, a corporation, Appellee.
Case Date:April 10, 1956
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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233 F.2d 71 (9th Cir. 1956)

109 U.S.P.Q. 204

The COLEMAN COMPANY, Inc., a corporation, Appellant,


HOLLY MANUFACTURING COMPANY, a corporation, Appellee.

No. 14711.

United States Court of Appeals, Ninth Circuit.

April 10, 1956

Rehearing Denied July 31, 1956.

Lyon & Lyon, Frederick W. Lyon, Los Angeles, Cal., for appellant.

James B. Christie, Richard B. Hoegh, Pasadena, Cal., for appellee.

Before HEALY, BONE and CHAMBERS, Circuit Judges.

BONE, Circuit Judge.

Appellee Holly Company, (sometimes hereafter referred to as Holly) a California corporation and plaintiff below, brought this action charging defendant-appellant Coleman Company, (sometimes hereafter referred to as Coleman) a Kansas Corporation, with infringement of Letters Patent secured by Hollingsworth, et al., No. 2, 602, 441 on July 8, 1952 and duly assigned to Holly, the owner of the patent. The patent in suit covers a gas-burning wall-heater which is a mechanical apparatus.

The allegations of appellee's original complaint were expanded in a first supplemental complaint. 1 Appellant's answers

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to both complaints alleged generally (to quote its brief) that said Letters Patent and all claims were invalid and void for the following reasons:

(a) The invention or inventions purported to have been patented had been described in printed publication prior to the supposed invention and discovery by Hollingsworth.

(b) That Hollingsworth was not the first inventor of the material and substantial part of the thing claimed in said patent.

(c) That the invention or inventions purported to be patented thereby did not constitute patentable novelty or invention within the meaning of the patent laws, in view of the prior state of the art, and in view of what was common knowledge on the part of those skilled in the art, prior to the date of the alleged invention or inventions of the patentees.

Appellant also denied that claimed acts of infringement by it 'ever took place.'

In an interlocutory judgment the lower court held that claims 1, 2, 3 and 4 of the said patent were valid and had been infringed by Coleman. 2 By way of relief it granted an injunction prohibiting further infringement of the claims

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and ordered an accounting for damages. This appeal followed.

The Patent in Suit.

The patent in suit is an insulated mechanical room-heating appliance of a size and shape and so designed as to be easily fitted into the wall of a room between two studs in a standard wall partition. Outwardly, the entire integrated device resembles two shallow metal 'boxes' rectangular in shape which (except as herein noted) fully enclose all of the interior parts within their metal covering. In accordance with the invention the complete device is really two box-like sections, one being placed on top of the other. The lower section is placed in position immediately above the floor level of the room to be heated; the upper box reaches to the ceiling of the room.

Within the center of this lower box section (which occupies somewhere near half of the total length of the complete device) is installed a long hollow metal 'combustion chamber' or 'radiator' with a much smaller horizontal cross section than the surrounding 'jacket' which constitutes the metal insulated 'wall' of the device. To a layman this 'radiator' might be likened to a centrally located sort of tube or funnel. It contains a gas burner which furnishes the heat for the patented device, this burner being positioned at or near the bottom of the radiator.

Passing along the sides of this lower radiator are air passages which serve as conduits to conduct or pass upward along the sides of the 'radiator' currents of air which become heated by contact with the radiator. This air is admitted into the device through a separate intake grille or aperture facing the open room and located at the base of the lower half of the device at a point near the floor level and opposite the gas burner.

Opposite the upper end of the room side of the lower box section of the two-part assembly is located what is designated in the patent as the 'lower grille' or hot air vent which passes air heated by the lower radiator into the room area at a point about midway of the length of the patented device. This particular heat outlet is designated in a diagram shown in the patent as the '1st stage warm air discharge.' At a point just above this particular outlet grille the resulting gasses from the 'lower or first radiator' rise and pass into and through the area occupied by a so-called 'draft diverter' or 'draft hood' into a 'second' but smaller metal radiator occupying a center position in the upper box-half of the patented device. After passing through this 'second' or upper 'radiator' these gasses are discharged into a flue connected with the top of the second radiator and from this point are vented into the atmosphere above the top of the house.

The patent specifications set forth that 'no damper or the like for constricting the flow of the flue gas through these two radiators is provided, and a 'draft diverter' is connected between the two radiators, instead of at the flue, as is customary.' The specifications further recite that 'this diverter has its relief opening into the room, preferably through the box in which the lower radiator is placed.' (See later reference to the 'draft hood' which is this 'diverter' device.)

The lower 'radiator' appears from a trial exhibit to be somewhere near the length of the lower box of appellee's device, and its top is open so that heat not transferred by this radiator remains in gaseous products of combustion and is 'wasted' up the flue connected to the top of the radiator and then into and through the second 'radiator' located in the upper box. From a diagram in the Letters Patent and from a hand-drawn exhibit in evidence, this upper or so-called 'secondary radiator' (like the lower radiator) occupies nearly the full length of the upper half section of the entire apparatus. The horizontal cross-section of the upper radiator is uniform in size and is considerably smaller than the lower radiator. There is no gas burner in this (secondary radiator because

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its function is merely the utilization of heat passing into it from the lower radiator. As in the case of the lower radiator, it is centrally positioned and has air passages surrounding it in which air heated by contact with this radiator may freely circulate. This warm air then passes into the room through an 'upper grille' referred to in the patent as the '2nd stage warm air discharge, ' the grille being located a short distance below the ceiling of the room.

The 'upper half' or box section of appellee's apparatus receives the air thus heated by its 'secondary radiator' through a separate grilled aperture located at the base of the lower unit or box section, and this air is carried up in, and around, the lower radiator box by an independent and enclosed air passage or conduit positioned adjacent to the back or wall side of both upper and lower boxes and finally diverted into the room through the '2nd stage warm air discharge' after passing alongside and being warmed by the second radiator.

Positioned between the two 'radiators' above referred to is the so-called 'draft diverter' or 'draft hood' device mentioned above. This part or open area of the patented device constitutes a kind of 'gap' or 'recess' in the apparatus between the upper and lower 'boxes.' It opens directly into the room through a 'grille', and its function and purpose is (by the use of suitable 'baffles') to prevent a strong atmospheric 'down-draft' which might enter the device through the roof flue or final vent, from forcing its way down into the lower (gas-burning) radiator and adversely affecting the combustion zone in this radiator and possibly extinguishing its gas burner thus permitting raw gas to escape into the room. It is claimed that this 'draft hood' or 'draft diverter' permits such a down-draft of air (if any occurs) to 'escape' directly into the room thus lessening or removing outside air pressure on the gas flame. It is noted in the specifications that adjustable dampers are not satisfactory in the flue of a gas-burning device because of the possibility of asphyxiation. Also, that the second (upper) radiator, as a conduit, 'will just handle the maximum products of combustion to be conducted in the first radiator, with scarcely any dilution through the draft hood.'

The specifications also recite that 'the structure of the invention is such that the hotter air is brought out into the room at an intermediate level while cooler but still warm air is introduced into the upper part of the room near the ceiling by the 2nd stage warm air discharge thus reducing stratification and increasing air circulation in the room.'

The lower radiator containing the gas burner appears from a trial exhibit to be somewhere near the length of the 'lower box' of appellee's device. Its top is open so that heat not transferred by this radiator remains in gaseous products of combustion and is 'wasted' up the flu connected to the top of this radiator into the upper radiator, the two radiators being (thus) connected in series. By this arrangement gas is burned only in the lower radiator with the resulting flue gasses rising through the upper or 'secondary radiator' and as we have indicated, are finally discharged into a flue connected at its top which vents them into the atmosphere above the top of the house.

The upper box section which contains the so-called 'secondary radiator' (to quote the specifications) 'extends from the top of the 'recess' (draft hood) to the ceiling of the room.' (This upper radiator and surrounding...

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