Everest & Jennings, Inc. v. Colson Corporation

• Decision Date: 05 January 1967
• Docket Number: No. 15511,15512.,15511
• Citation: 152 USPQ 209,371 F.2d 240
• Parties: EVEREST & JENNINGS, INC., Gerald M. Jennings, Harry C. Jennings, Jr., and David D. Jennings, Plaintiffs-Appellants and Cross-Appellees, v. The COLSON CORPORATION, Defendant-Appellee and Cross-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

152 USPQ 209, 371 F.2d 240 (1967)

EVEREST & JENNINGS, INC., Gerald M. Jennings, Harry C. Jennings, Jr., and David D. Jennings, Plaintiffs-Appellants and Cross-Appellees, v. The COLSON CORPORATION, Defendant-Appellee and Cross-Appellant.

Nos. 15511, 15512.

United States Court of Appeals Seventh Circuit.

January 5, 1967.

Allan D. Mockabee, Los Angeles, Cal., Roy E. Hofer and Hume, Groen, Clement & Hume, Chicago, Ill., for Everest & Jennings.

Lowell E. Sachnoff, Chicago, Ill., Frederic Bosworth, Cleveland, Ohio, for Colson Corp.

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

HASTINGS, Chief Judge.

Everest & Jennings, Inc., a California corporation, Gerald M. Jennings, Harry C. Jennings, Jr., and David D. Jennings, appellants Jennings, manufacturer and individual trustee owners of the patent in suit respectively, have appealed from a judgment of the district court finding their United States Letters Patent No. 2,592,449 "Removable Footrest for Wheel Chairs", issued April 8, 1952 to Jack C. Miller, to be invalid and not infringed by wheel chair footrests manufactured by the Colson Corporation, a Delaware corporation, having a regular and established place of business in Chicago, Illinois.

Jennings' '449 combination patent, relating to improvements in wheel chairs and wheel chair footrests, describes footrest structures for wheel chairs. The described footrest can be locked in a normal position for use on an upright forward leg of the wheel chair, or released to swing laterally from its position in front of the chair and thence removed entirely from the frame of the chair.

The mobility and detachability of the footrests, which normally protrude to the front, are desirable characteristics, for with them wheel chairs can be made to approach upright objects and structures, such as tables or beds, more closely than wheel chairs with permanently or rigidly mounted footrests. Similarly, the removable footrests are claimed to facilitate storage or transportation of wheel chairs.¹

As found by the district court, the combination patent comprises

"(1) a wheel chair with upright forward legs, (2) footrest structures hingedly and removably connected to the legs for swinging motion about vertical axes from straight ahead positions to rearward and outward positions, (3) hinges connecting the legs and footrest structures, and (4) means for releasably locking the footrests against swinging and against removal."

Two gudgeons or sockets secured to the outer sides of the front legs of the wheel chair receive pintles of equal or unequal length, which are attached to the tubular frame of the footrest and which are made to fit into the sockets. The footrest is attached to the front leg of the chair by placing the pintles in the sockets; removed by withdrawing them. A knuckle is secured to the inner sides of the front legs of the wheel chair and a similar knuckle is attached at the top of the footrest frame, to register with the wheel chair knuckle when the footrest is swung to extend straight forward from the upright leg of the chair. Each of the knuckles has a hole in it so that when the knuckles of the chair and footrest are aligned, a locking pin can be slipped into the hole to hold the footrest in place. When the locking pin is withdrawn, the footrest can be swung aside and removed.

The district court found:

"6. The whole combination of elements purporting to be patented in the patent in suit, and every feature of alleged novelty of each element, excepting only the pintle hinge (with pintles of equal or unequal length) of the patent compared with the bolt and nut hinge of prior use, had been in public use and on sale, and sold in commercial quantities, by plaintiffs and their predecessors, for more than one year before the plaintiff filed the application for the patent in suit. The prior public use and sale combination chair and footrest is referred to herein as the Prior Art E. & J. Chair. * * *. The said Prior Art E. & J. Chair was manufactured and sold by plaintiffs and/or their predecessors from about 1946 through about the year 1949. It was substantially and essentially identical with the patented chair in structure, function, mode of operation and results. * * *. Its specific difference in structure from the patented chair * * * comprised merely the difference between its bolt and nut hinges, compared with the pintle hinges of the patent, which however, did not alter the sameness of the function, operations or results of the two chairs, excepting in the degree of convenience with which the parts of the hinge could be detached and reassembled. * * *. Pintle hinges in analogous arts with pintles of equal and unequal length were old and well known long prior to the alleged invention of the patent in suit * * *."

The district court further found that the changes made in the prior art E. & J. chair, which resulted in the patented combination

"8. * * * required no more than the solution of simple engineering problems well within the learning and scope of those skilled in the art. * * *."

The district court held that Jennings' '449 patent was invalid because it did not disclose invention. It was further held invalid because of Jennings' prior public use and sale for a period of one year prior to the date of patent application. None of the claims of the '449 patent was found to be infringed.

On appeal Jennings contends that the prior art E. & J. chair, of which the patent office had no notice, did not anticipate the claims of the patent in suit, that the claims of the patent were patentable over the prior art, and that Colson's construction infringes the patent.

We agree with the district court that the pintle hinge patents, Swiss Patent No. 63,067; Gillespie, U. S. Patent No. 484,361; Fernald, U. S. Patent No. 1,087,576; Long, U. S. Patent No. 373,837; and ...