379 F.2d 376 (7th Cir. 1967), 15809, American Needle & Novelty Co. v. Schuessler Knitting Mills, Inc.

• Docket Nº: 15809.
• Citation: 379 F.2d 376, 154 U.S.P.Q. 128
• Party Name: AMERICAN NEEDLE AND NOVELTY CO., a copartnership, composed of Bruce Kronenberger and Anna Kronenberger, Plaintiff-Appellant, v. SCHUESSLER KNITTING MILLS, INC., a corporation, and Schuessler Knitting Foundation, Defendant-Appellees.
• Case Date: June 06, 1967
• Court: United States Courts of Appeals, Court of Appeals for the Seventh Circuit

Page 376

379 F.2d 376 (7th Cir. 1967)

154 U.S.P.Q. 128

AMERICAN NEEDLE AND NOVELTY CO., a copartnership, composed of Bruce Kronenberger and Anna Kronenberger, Plaintiff-Appellant,

v.

SCHUESSLER KNITTING MILLS, INC., a corporation, and Schuessler Knitting Foundation, Defendant-Appellees.

No. 15809.

United States Court of Appeals, Seventh Circuit.

June 6, 1967

Rehearing Denied July 19, 1967.

Page 377

Jerome F. Fallon, John W. Chestnut, Dawson, Tilton, Fallon, Lungmus & Alexander, Chicago, Ill., for defendants-appellees.

Before HASTINGS, Chief Judge, DUFFY, Senior Circuit Judge and KILEY, Circuit Judge.

DUFFY, Senior Circuit Judge.

Plaintiff is a co-partnership whose partners are residents of Chicago, Illinois. The defendants are Illinois corporations located in Chicago, Illinois.

The second amended complaint herein is in four counts. 1) For a declaratory judgment of non-infringement and invalidity of United States Patent No. 2,998,611, issued to Schuessler Knitting Mills; ¹ 2) Damages for unfair competition; 3) False patent marking, and 4) Misuse of the patent.

After a short trial consuming parts of two days, the District Court ruled that it had no jurisdiction over Counts 1, 2 and 4. Findings of fact and conclusions of law as prepared by defendants' counsel, were signed by the trial court.

Paragraph II of the judgment provided 'Plaintiff's Second Amended Complaint is hereby dismissed with prejudice and all relief sought herein by the Plaintiff is hereby denied.'

The subject matter of the Schuessler patent is a knitted cap and face hood, and the method of forming the same. The cap is made from a single tube of knitted material and has a top portion, a cuff-forming portion together with a face mask portion which is adapted to be worn over the wearer's face or telescoped up into the top portion.

The cap and the face hood of the Schuessler cap can be worn down singly or together. When the face hood is not in use, it is telescoped within the top portion of the cap. Schuessler started selling these caps in the early 1960's, and claims its sales amounted to almost 1,500,000 caps per year.

In August 1963, Bruce Kronenberger, one of the plaintiff's partners, requested Schuessler to sell him knitted inserts (face hoods). The first delivery of these face hoods pursuant to Kronenberger's request was on November 11, 1963. The invoice for this shipment indicated there would be an additional fifty cents per dozen royalty if the inserts were used as inside pullout masks according to the...