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
 
FREE EXCERPT

Page 481

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,

Page 482

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...

To continue reading

FREE SIGN UP