236 F.2d 225 (2nd Cir. 1956), 310, Welsh Mfg. Co. v. Sunware Products Co.

Docket Nº:310, 23924.
Citation:236 F.2d 225, 110 U.S.P.Q. 161
Case Date:July 09, 1956
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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236 F.2d 225 (2nd Cir. 1956)

110 U.S.P.Q. 161




Nos. 310, 23924.

United States Court of Appeals, Second Circuit.

July 9, 1956

Argued April 6, 1956.

Cooper, Dunham, Keith & Dearborn, New York City (Herbert B. Barlow and Herbert B. Barlow, Jr., Providence, R.I., of counsel on the brief), for appellant.

Abraham J. Nydick, New York City, for appellee.

Before FRANK, LUMBARD and WATERMAN, Circuit Judges.

LUMBARD, Circuit Judge.

Plaintiff is the assignee of the Wentworth Patent No. 2, 496, 969, which relates to the manufacture of sun glasses and which consists simply in using a single piece of metal in constructing the top bracing bar and the sweat bar of the glasses. The bracing bar is fixed to and extends between the rims of the glasses, at their upper edges. Its purpose is to maintain the rigidity of the glasses. The ends of the bar are bent back and inserted into the sweat bar which is a celluloid piece intended to rest on the forehead of the wearer. The wire bar does not go all the way through the celluloid; rather it is inserted into a hole at either end of the sweat bar, thereby pinioning that piece in place. This construction affords a means of soldering the metal bar to the glasses, plating it and thereafter attaching the celluloid. A neater plating job results. Furthermore only two solderings are required, one to attach the wire to either rim.

Previous to plaintiff's innovation, a top bar was soldered on to the rims to

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give rigidity to the glasses, and the sweat bar was a separate piece with the wire running all the way through the celluloid. The ends of this sweat bar were also soldered to the rims of the glasses. This required a total of four soldering operations and the plating of the glasses with the celluloid in place.

The defendant did not contest these facts but alleged that the patent in suit was invalid and void for lack of invention. During the course of the trial counsel for the defendant admitted that if the patent is valid the defendant has infringed.

At trial the defendant introduced certain evidence of prior art. This consisted of a pail handle, a coat hanger, and a toilet paper holder. In each of these exhibits one part of the article was held in place by a wire the ends of which were inserted in either end of the part. Defendant attempted to show by these exhibits that pinioning a piece in place, as the sweat band is held in the patented article here, was a common expedient known to skilled mechanics.

Plaintiff objected to the admission of this evidence on the ground that if it was prior art it was not analogous to the field of sun glasses and further, no notice of such prior art had been given as required by 35 U.S.C.A. § 282. Judge Rice overruled the objection and plaintiff assigns error both to the admission of this evidence and to its use in the District Court's findings.

There was no error in the admission and consideration of these exhibits. The colloquy between the Court and counsel regarding the admissibility of this evidence makes it clear that Judge Rice felt that no exhibits were necessary since what the defendant was trying to show was, in fact, common everyday knowledge. The exhibits were admitted merely in order to have the record reflect common examples of this everyday device. The judge took judicial notice of the fact that it was '* * * a common expedient to bend a wire into a shape, whereby the ends can be inserted into a tube or rod or into holes in an article for supporting or carrying the same.' It is proper for the court to take judicial notice of matters of general knowledge which indicate that a device is not new. Slawson v. Grand St. P.P. & F.R. Co., 1882, 107 U.S. 649, 654, 2 S.Ct. 663, 27 L.Ed. 576. Moreover, § 282 requires only that notice be given of any 'patent' or 'publication' which is to be used in showing the state of the art. Thus it did not bar consideration of the items in everyday use considered by the court here. Plaintiff's argument that these items did not...

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