Bestwall Mfg. Co. v. United States Gypsum Co.

• Decision Date: 04 January 1921
• Docket Number: 2764.
• Citation: 270 F. 542
• Parties: BESTWALL MFG. CO. v. UNITED STATES GYPSUM CO.
• Court: U.S. Court of Appeals — Seventh Circuit

270 F. 542

BESTWALL MFG. CO. v. UNITED STATES GYPSUM CO.

No. 2764.

United States Court of Appeals, Seventh Circuit.

January 4, 1921

Clarence E. Mehlhope, of Chicago, Ill., for appellant.

Edward Rector and John W. Hill, both of Chicago, Ill., for appellee.

Before BAKER, ALSCHULER, and EVANS, Circuit Judges.

EVAN A EVANS, Circuit Judge.

Two patents, one No. 1,029,328, covering a process for making plaster board, and the other, No. 1,034,746, covering the product, the plaster board, are here under consideration. Patentee originally sought his claims in one application, but a division was ordered, and thereafter he proceeded separately with his process and product applications.

Describing the subject-matter of his patent, patentee says:

'Plaster board of various kinds have been made prior to my invention, some of which have been made in molds and others of which have been made by a continuous process consisting in applying alternate layers of plaster and paper or other fibrous material upon a traveling base sheet. The mold method of making plaster board is objectionable, however for the reason that the size of each slab of board is necessarily limited and, furthermore, for the reason that this method of making boards is a slow, tedious and expensive operation. In the continuous method of making plaster board, it has been the practice to superimpose the alternate layers of plaster and paper and then to trim the edges of the board leaving the raw edges of the plaster and the raw edges of the paper at each side of the board. The paper or covering material in this construction is very easily torn and the edges of the board are readily chipped or broken so that after repeated handlings the boards when ready for use are usually mutilated to a considerable extent.

'My present invention aims to obviate the disadvantages of the boards previously employed and to construct a board, the edges of which will be entirely enclosed by a sheet of covering material and in which there will be no tree or exposed edges of covering material which will be liable to be torn, loosened, or peeled back in the handling of the board.'

Claim 1 of the process patent reads:

'The method of making plaster board which consists in advancing a bottom sheet of covering material, superimposing upon said sheet alternate layers of plastic material and fibrous material, holding the plastic material away from the edges of the covering material so as to leave a portion of said material exposed at each side of said layers, folding the exposed edge portions of said covering material over onto the upper surface of the upper layer of plastic material, applying a separate sheet of covering material over the upper surface of plastic material, said upper sheet being of a width sufficient to partially cover the inturned edges of said bottom sheet, applying pressure to said upper sheet to cause the plastic material to flow between the edges of said sheet and the inturned portions of the bottom sheet, and preventing said plastic material from escaping at the edges of said upper sheet.'

Claim 1 of the product patent reads:

'A plaster board comprising a body, a covering of fibrous material adhering to one face of the body folded to inclose an edge of the body and overlie a portion of the opposite face thereof, and a covering of fibrous material for said opposite face of the body overlying said folded-over portion of the first-mentioned covering but having its edge spaced from the edge of the board.'

Referring to the italicized words quoted from the specifications, it is apparent that the virtue of the patent is found in the protection which the covering over the edges affords. Evidence was received tending to support appellee's claim that such covering protected the exposed edge of the gypsum body, prevented waste, strengthened the finished board, increased the output, improved the appearance of the finished product, and reduced cost of production. A very large increase in the production of plaster board followed the appearance of this patented article.

It is unnecessary to separately consider the two patents. Under the facts disclosed in this suit, they fall or stand together.

Plaster boards of the two-ply and of the composite type were old and well known at the time of this discovery. The improved product differs from the product formerly manufactured chiefly in the protection afforded the edges of the gypsum.

Counsel describes the...