Pleatmaster, Inc. v. JL Golding Mfg. Co.

• Citation: 240 F.2d 894
• Decision Date: 08 March 1957
• Docket Number: No. 11796.,11796.
• Parties: PLEATMASTER, Inc., Plaintiff-Appellee, v. J. L. GOLDING MFG. CO., Defendant-Appellant, and H. L. Judd Company, Counter-Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

240 F.2d 894 (1957)

PLEATMASTER, Inc., Plaintiff-Appellee, v. J. L. GOLDING MFG. CO., Defendant-Appellant, and H. L. Judd Company, Counter-Defendant-Appellee.

No. 11796.

United States Court of Appeals Seventh Circuit.

February 7, 1957.

Rehearing Denied March 8, 1957.

Samuel W. Kipnis, Carl S. Lloyd, Harold L. Eisenstein, Chicago, Ill., for appellant.

Howard W. Clement, Chicago, Ill., Daniel G. Cullen, Bernard J. Cantor, Detroit, Mich., for appellee.

Before FINNEGAN, LINDLEY and SCHNACKENBERG, Circuit Judges.

LINDLEY, Circuit Judge.

Plaintiff's suit for infringement of its patent to Solomon, No. 2,558,467, applied for January 16, 1951, and allowed June 26, 1951, having resulted in a finding that the patent is valid and infringed, upon appeal, defendant seeks to reverse, contending that each finding is erroneous.

Solomon, in his application, described a curtain hanging device capable of forming pleats at the top of the curtain without sewing the material, for curtains or draperies suspended from a rod or similar support. He disclosed an apparatus with four fingers, tines or prongs, pointing upward when it is used, with a fixed hook at the back for hanging the contraption on the rod. He provided pockets or tunnels at intervals at the top of the curtain, into which the four fingers fitted. These pockets were so spaced that when the curtain was gathered together and the fingers inserted in the pockets, folds or pleats would result without any necessity for a seamstress.

Claim 1 is as follows: "1. For use with a drape having at its upper edge a plurality of vertically extending horizontally spaced parallel tunnels or loops closed at their upper ends and open at their lower ends, a pleater and hanger device insertable upwardly into said tunnels through their open lower ends, said device having a drape hanging hook and four coplanar closely and horizontally spaced upwardly projecting elongated vertical pleating fingers having blunted upper ends, all four of said fingers being of substantially the same length and extending the full lengths of said tunnels, and projecting well above the hook and being spaced two to each side of the hook, said fingers and hook being interconnected at their lower ends, with all four fingers coming together at their lower ends closer than at their upper ends for pinching the pleats together at the lower ends of the tunnels, the hanger and pleater being constructed of wire and being formed and dimensioned to have sufficient resilience at the lower ends of the fingers to enable all fingers to be moved manually and easily towards or away from one another to facilitate insertion of the fingers into said tunnels and to enable the intermediate fingers to be squeezed manually towards and closely adjacent the outermost fingers for a considerable distance along such fingers, the fingers having an inherent tendency to return to their original spacing after being manually squeezed together or spread apart." Claim 2 is substantially the same as claim 1, with the following addition: "the outer pair of fingers being the legs of a U-shaped piece of wire nested coplanar with and inside the first piece of wire, and the hook being an inverted third U-shaped piece of wire whose plane is normal to the plane of the first two pieces of wire, all three pieces being joined at the nested bights of the first two and at the end of one leg of the third piece." Thus we have a relatively simple device containing the necessary elements for hanging a curtain; that is, the integrated hook and four fingers paralleling each other, extending upward into the pockets provided in the curtain, spaced at intervals as aforesaid, so that when the curtain is hung, the material, into the pockets of which the tines are placed, is drawn together in folds or pleats. The fingers are blunted, so as not to injure the cloth, instead of being pointed as they were in certain other devices known in the art.

In the prior art pleaded by defendant is Ashwell (British) patent No. 24665. He disclosed "improvements in hooks for hanging curtains," consisting of an integrated curtain hook and prongs, a device which, apparently, was intended to accomplish the results of Solomon. Ashwell showed only two prongs. Furthermore, his fingers were pointed, instead of being blunt. However, blunted prongs are shown in certain other patents, to which we shall refer. From his description, it is apparent that his device was adapted for forming pleats. So far as the number of fingers is concerned, we think invention cannot lie in a provision for four instead of two. Knight, 24522, 1904 (British), described "an improved apparatus for heading and suspending curtains", the two tines of which fitted into proper receptacles on the curtains at intervals, resulting in the material being "gathered into folds or box pleats." He specified that by the use of his improved heading and suspending device "a graceful and artistic appearance is imparted to the curtain or hanging without any supervision by or skill on the part of the operator." He asserted that the spacing of the fingers and the receptacles into which they fitted, provided "a broad box pleat formation." The ends of his prongs were blunted, not pointed, as in Ashwell. They extended above the hook, as in the patent in suit.

Steiner, No. 2,012,734, 1935, applied for and was allowed a patent for a "fixture for curtains, draperies and the like", the chief purpose of which was to permit attachment at the heading of the curtain without resorting to sewing, and which effectively "holds the pleated heading in an upright position and at the same time assures a neat and natural hanging of curtains and draperies from the supporting rod." He provided a "plurality of tines or prongs", adapted to face upwardly when in position on the curtain and said that these elements served "to firmly and properly retain the pleated portion in its proper position to insure a neat and natural hanging of the curtains and draperies." Two of his prongs were somewhat longer than the other two. The pleats were formed without sewing and held in place by the device, the fingers of which pierced the material, holding it in place. Whether the tines were resilient does not appear, but, obviously, any skilled mechanic would have the choice of proper material in making the device. The bottom of the finger was united in a rounded "U" form as in Solomon, instead of being comparatively square, as in Ashwell.

Carr, No. 834,188, on October 23, 1906, disclosed a "curtain suspension hook." He provided a hook to which were added prongs adapted to enter transverse loops in a heading tape or suspension band of the curtain. He recommended two prongs parallel with the shank of the main hook, bearing small barbs, hooks or notches to prevent them from slipping out of the transverse loops in the tape. He provided, in an alternative construction, a hook with three fingers. He recognized that other workers in the art had disclosed a hook with three prongs and did not claim invention in his particular arrangement. His apparatus was of resilient wire and the prongs had blunted upper ends. Though the fingers were not of equal length, they could readily, of course, be made longer or shorter, particularly in view of Ashwell and other art showing such construction. To increase the number of fingers, as we have mentioned, so as to increase the number of folds, would, in our opinion, furnish no serious problem to a skilled worker in the art. This is indicated by his own specification, where he said that the difference in the form of the "respective plait or gather" obtained with the two constructions is clearly seen.

Charlton (British), No. 151108, 1920, disclosed a curtain hanging tape, provided with tunnels, open at the lower ends and closed at their upper ends substantially as in Solomon. Thus, it will be seen that in the prior art, the use of such a hanger with prongs and tunnels, tape or other proper receptacles for the tines was old. Indeed, plaintiff seems to admit this fact.

Defendant pleaded also as prior art, Loudon, Patent No. 2,672,194, applied for Dec. 29, 1949, and issued March 16, 1954, covering "supporting means for curtains and the like," the fingers of which, he said, were...