322 F.2d 481 (6th Cir. 1963), 15042, Harvey v. Levine

Docket Nº:15042.
Citation:322 F.2d 481, 138 U.S.P.Q. 659
Party Name:William H. HARVEY, Paul E. Thies, and The William H. Harvey Company, Plaintiffs-Appellees, v. Roy LEVINE, Henry Feniger, Beacon Manufacturing Company, and Wax Products Manufacturing Company, Defendants-Appellants.
Case Date:September 19, 1963
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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322 F.2d 481 (6th Cir. 1963)

138 U.S.P.Q. 659

William H. HARVEY, Paul E. Thies, and The William H. Harvey Company, Plaintiffs-Appellees,

v.

Roy LEVINE, Henry Feniger, Beacon Manufacturing Company, and Wax Products Manufacturing Company, Defendants-Appellants.

No. 15042.

United States Court of Appeals, Sixth Circuit.

Sept. 19, 1963

George Knowles, Cleveland, Ohio, Bosworth, Sessions, Herrstrom & Knowles, Fred J. Samerdyke, Cleveland, Ohio, on brief, for appellees.

Before MILLER, WEICK and O'SULLIVAN, Circuit Judges.

SHACKELFORD MILLER, Jr., Circuit Judge.

This action involves the validity and alleged infringement of United States Patent No. 2,750,216 issued to Paul E. Thies on June 12, 1956, for an invention relating to toilet bowl sleeve gaskets. The District Judge held the patent valid and infringed.

Prior to 1953 the plaintiff Thies had been a journeyman plumber, a master plumber and proprietor of a plumbing,

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heating and electrical contracting business. The plaintiff William H. Harvey is the exclusive licensee for the United States of the Thies patent. Harvey also had experience as a journeyman and master plumber, and was in the plumbing contracting business in Omaha, Nebraska, prior to 1945, at which time he pioneered in the development and sale of wax ring sealing gaskets for toilet bowls. The plaintiff The William H. Harvey Company was incorporated in 1959 and became a sublicensee under the Thies patent.

The defendants Roy Levine and Henry Feniger, as partners, were engaged in selling, among other things, sealing gaskets. The partnership did business under the name of Beacon Manufacturing Company and also Wax Products Manufacturing Company. In July 1959 Beacon Manufacturing Company was incorporated and in February 1960 Levine and Feniger transferred some, if not all, of their partnership assets and business to the corporation, which continued in the manufacture and sale of the accused sleeve gaskets.

In their amended complaint the plaintiffs allege that the defendants wilfully infringed patent No. 2,750,216 by making, using or selling in the Northern District of Ohio bowl sleeve gaskets made or constructed in accordance with the invention disclosed and claimed in patent No. 2,750,216 without plaintiffs' license or consent. Plaintiffs sought a preliminary and permanent injunction against making, using or selling by the defendants of bowl sleeve gaskets, for an accounting and for damages by reason of the infringement of their patent.

The defendants deny the validity of the patent and also the alleged infringement. They also filed a counterclaim asking for a declaratory judgment that the patent was invalid and that it had not been infringed by the defendants.

The patent in suit relates to toilet bowl installations, with the purpose of the invention being 'to prevent dampness in floor areas around toilet bowls and thereby eliminate rotting or decaying of wood and other flooring materials around toilet bowls.' The invention contemplates 'a ring gasket of wax, sponge rubber, or other similar material, and a depending sleeve or skirt, the diameter of the lower end of which is less than that of the upper end, extended downwardly from the inner surface of the ring and having a flange on the upper end extended into the material of the ring.'

The application for the patent states: 'The object of this invention is, therefore, to provide a sealing gasket adapted to be positioned between the outlet opening of a toilet bowl and a nipple extended upwardly from soil pipe whereby the possibility of leakage between the parts is reduced to a minimum. * * * Another important object of the invention is to provide an improved gasket for sealing the connection between a toilet bowl and a drain or soil pipe below the bowl in which the gasket is adapted to be installed by the average artisan.'

The two claims of the patent read as follows:

'1. In a sealing gasket for a toilet bowl, the combination which comprises a ring of pliable material, said ring being rectangular-shaped in cross section and having an annular slot in the inner surface, a sleeve positioned with the upper part nested against the inner surface of the ring and having an inwardly offset lower part providing a skirt, the diameter of which is less than that of the upper part, and a flange extended from the upper end of the sleeve and positioned in the slot of the ring. '2. In a gasket for sealing the connection between a toilet bowl and soil pipe below the bowl, the combination which comprises a ring, rectangular shaped in cross section and having an annular slot extended from the inner surface into the body of the ring, the slot being positioned substantially midway of the height of the ring and the upper inner edge of the ring above the slot being relieved

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providing an arcuate surface, and a sleeve positioned with the upper part nested against the inner surface of the ring and with an annular flange extended from the upper end embedded in the slot of the ring, said sleeve having an inwardly offset section spaced below the ring providing a depending skirt, the diameter of which is less than that of the upper part of the sleeve whereby with the sleeve positioned in a tube with the ring on the upper end of the tube, the skirt is spaced from the wall of the tube.'

It will be seen from the above that the patent covers the combination of two elements, namely, a ring gasket of wax, sponge rubber or other similar material, and a depending sleeve or funnel extending downwardly from the inner surface of the ring. The ring gasket of the patented device is made of wax. The use of the patented article is as follows.

There are two kinds of toilet bowls. One is the 'long horn' bowl, which is characterized by a long outlet or horn extending downwardly from the bottom of the bowl. The other kind of toilet bowl is a 'short horn' bowl, which does not extend below the base of the toilet bowl unit. Both long horn bowls and short horn bowls have been known and available for many years. Long horn bowls were generally used prior to the end of World War II, but in recent years short horn bowls have supplanted long horn bowls to a considerable extent. The horn connects with the inlet end of the waste pipe extending upwardly from below. At least prior to the use of the wax gasket in 1945, this connecting joint was often the source of leakage, with resulting dampness of the floor and rotted floors around toilet bowls. The sleeve serves as an extension of the short horn, constitutes a bridge across the joint between the horn of the bowl and the inlet end of the waste pipe, and when held in place and sealed to both horn and waste pipe by the wax ring, it functions to conduct the effluent received from the horn down...

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