30 F.2d 12 (6th Cir. 1929), 5038, McCloskey v. Toledo Pressed Steel Co.

• Docket Nº: 5038.
• Citation: 30 F.2d 12
• Opinion Judge: MOORMAN, Circuit Judge.
• Party Name: McCLOSKEY v. TOLEDO PRESSED STEEL CO.
• Attorney: George E. Kirk, of Toledo, Ohio, for appellant. Charles W. Owen, of Toledo, Ohio (Owen & Owen, of Toledo, Ohio, on the brief), for appellee.
• Judge Panel: Before DENISON, MACK, and MOORMAN, Circuit Judges.
• Case Date: January 18, 1929
• Court: United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 12

30 F.2d 12 (6th Cir. 1929)

McCLOSKEY

v.

TOLEDO PRESSED STEEL CO.

No. 5038.

United States Court of Appeals, Sixth Circuit.

January 18, 1929

In Error to the District Court of the United States for the Western Division of the Northern District of Ohio; John M. Killits, Judge.

Patent infringement suit by Wilbert J. McCloskey, trading as the McCloskey Torch Company, against the Toledo Pressed Steel Company. To review an adverse decree, plaintiff brings error. Affirmed.

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George E. Kirk, of Toledo, Ohio, for appellant.

Charles W. Owen, of Toledo, Ohio (Owen & Owen, of Toledo, Ohio, on the brief), for appellee.

Before DENISON, MACK, and MOORMAN, Circuit Judges.

MOORMAN, Circuit Judge.

This is a suit for infringement of the McCloskey patent, 1,610,301. The bill asked for an injunction and an accounting. By amendment unfair trade competition was alleged. The patent is for a torch intended to be used as a traffic guard against excavations or defects in streets. The torch consists of two substantially semispherical sheet metal members united by a weld or joint in the region of the maximum diameter to form an oil reservoir. The base member is flattened at the bottom to form a seat, and is provided with a rigid load or weight to render the torch self-righting. The upper member has a central, inwardly threaded throat with a wick receiving bushing therein. There are three claims in the patent. From the standpoint of invention they are alike. The only difference between claims 1 and 2 is that the latter calls for an endless bead as a specific means for anchoring the rigid load element. In this respect it also differs from claim 3, which further differs from the others in calling for a wick receiving bushing in an opening in the dome-shaped upper section. There is nothing, however, in either the endless bead or the wick receiving bushing that distinguishes one claim in merit from the others. The former is a common mechanical expedient, and the latter or its equivalent must be inferentially included in claims 1 and 2 to make them operable. The court below held all the claims invalid.

In the course of the trial in the court below counsel for appellant stated to the court that only claim 3 was involved in the suit. It is now claimed that the effect of that statement was to limit the hearing to that claim. It did not, of course, have that effect, if the other claims were put in issue by the answer. They were. The bill charged a general infringement, and the answer did not deny that appellee was making a similar torch, but alleged invalidity, and asked that all the claims be held void and of no effect. There were, as we have said, no inventively distinctive...