McCloskey v. Toledo Pressed Steel Co.

Decision Date18 January 1929
Docket NumberNo. 5038.,5038.
PartiesMcCLOSKEY v. TOLEDO PRESSED STEEL CO.
CourtU.S. Court of Appeals — Sixth Circuit

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 domeshaped 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 features in any of the claims. If one was valid, it would be difficult to see why the others were not, too. In that situation the court was clearly right, we think, in treating all of them as in issue.

Appellant's claim of invention, as we understand it, rests primarily, if not wholly, upon the zone-shaped upper member of his oil reservoir. Because of its shape this upper member is said to possess extraordinary utility when made of sheet metal and joined with a similarly shaped sheet metal base. It is said to give the device the appearance of a bomb, and therefore to attract instant recognitions as a danger signal, and it is also said to offer greater resistance to the blows from vehicles and horses that such a device necessarily receives while performing its functions in the street than it would if otherwise shaped. Aside...

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9 cases
  • Veaux v. Southern Oregon Sales, 9638.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • January 5, 1942
    ...& Wilson Manufg. Co., 2 Cir., 79 F. 432, 441, certiorari denied, 166 U.S. 722, 17 S.Ct. 997, 41 L.Ed. 1188; McCloskey v. Toledo Pressed Steel Co., 6 Cir., 30 F.2d 12, 14; Root Spring Scraper Co. v. Willett Mfg. Co., 6 Cir., 84 F.2d 42; Kellogg Switchboard & S. Co. v. Michigan Bell Tel. Co.,......
  • Toledo Pressed Steel Co v. Standard Parts Same v. Huebner Supply Co Montgomery Ward Co v. Toledo Pressed Steel Co
    • United States
    • U.S. Supreme Court
    • May 29, 1939
    ...was held invalid by the circuit court of appeals for the sixth circuit for lack of invention and because anticipated. McCloskey v. Toledo Pressed Steel Co., 30 F.2d 12. Plaintiff had a large business in the manufacture and sale of torches, including the McCloskey type. It advertised that th......
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    • United States
    • U.S. District Court — District of Puerto Rico
    • April 22, 1950
  • American Chemical Paint Co. v. Dow Chemical Co.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • November 17, 1947
    ...60 S.Ct. 51, 84 L.Ed. 20; Swift & Co. v. Hocking Valley Ry. Co., 243 U.S. 281, 289, 37 S.Ct. 287, 61 L.Ed. 722; McCloskey v. Toledo Pressed Steel Co., 6 Cir., 30 F.2d 12, 13. The case of Lenox Clothes Shops v. Commissioner, 6 Cir., 139 F.2d 56, relied on by appellee, dealt with a question o......
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