Forestek Plating & Mfg. Co. v. Knapp-Monarch Co.

• Decision Date: 18 September 1939
• Docket Number: No. 7872.,7872.
• Parties: FORESTEK PLATING & MFG. CO. v. KNAPP-MONARCH CO.
• Court: U.S. Court of Appeals — Sixth Circuit

106 F.2d 554 (1939)

FORESTEK PLATING & MFG. CO. v. KNAPP-MONARCH CO.

No. 7872.

Circuit Court of Appeals, Sixth Circuit.

September 18, 1939.

Harvey R. Hawgood, of Cleveland, Ohio, (Hawgood & Van Horn, of Cleveland, Ohio, on the brief), for appellant.

W. P. Bair, of Chicago, Ill. (Bair & Freeman, of Chicago, Ill., Mooney, Hahn, Loeser, Keough & Fulton, of Cleveland, Ohio, and Will Freeman, of Chicago, Ill., and M. A. Loeser, of Cleveland, Ohio, on the brief), for appellee.

Before SIMONS, ALLEN, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

The appellee, Knapp-Monarch Company, instituted this action against appellant, Forestek Plating & Manufacturing Company, to restrain alleged infringement of mechanical patent No. 2,040,369 issued May 12, 1936, to appellee, Knapp-Monarch Company, as assignee of William H. Fischer, patentee, and Design Patent No. 96,481 issued August 6, 1935, to appellee, assignee of Andrew S. Knapp, patentee.

Patent No. 2,040,369 relates to improvements on electric sandwich toaster grill and No. 96,481 to the improvement in its design.

All of the claims relied on by appellee to sustain infringement of each patent were held valid and infringed by the lower court.

The mechanical patent in suit is a toaster-grill consisting of three rigidly connected parts; a parallelogram tray base with peripheral upwardly and outwardly sloping flange terminating at each end into flanged handles with four depressed portions adjacent to the inside periphery of the flange serving as feet. Approximately one-half of the underneath center of the tray is pressed upwardly in parallel lines and therein is placed four slot connections with a screw in the center connecting it to the lower heating element, from which project four points fitting into the slots.

The upwardly and downwardly depressed portions of the tray and lower heating element are sufficiently spaced to permit air circulation between them and its resting place to prevent excessive heat from penetrating to the table or other furniture on which the tray rests or to its handles. Resting on and attached to the tray is the lower encased heating element and it is connected to the upper heating element by a slotted pivoted pin, the slot being adjustable so the two heating elements may form a flat continuous surface to be used as a grill or closed on any thickness of sandwich, bread or other food.

Each of the two encased heating elements has a smooth flat surface and they are connected so the electric current flows into each at equal heat with a handle in the upper heating element for opening and closing. The whole appliance can be raised to a high temperature, without transmitting excessive heat to the tray base or its resting place and may be safely moved while in operation.

The patentee points out that the object of his invention was to provide an electrical appliance of simplicity, durability and of comparatively inexpensive manufacturing cost, which could be adapted for toasting sandwiches and for grill purposes, without an objectionable amount of heat to the handles or under-surface.

A further object was to provide a tray support with formed feet and upwardly depressed portions which connected with downwardly depressed portions of an electric heating casing, the upwardly and downwardly projecting depressions contacting each other and being connected at contacting points, with air circulation beneath the support and the electric heating casing in such manner as to minimize heat.

A further object was to provide an appliance with a two-part casing, hinged together by a novel type hinge permitting the two parts to be opened for the purpose of inserting food between them or open so one point forms an extension of the other in order that two different articles of food may be cooked on each heating element at the same time. Another object was to provide a grid plate permanently secured in a casing member with a novel type of heating element, also to provide a terminal structure, which could be assembled in minimum time.

Another object was to make the heating elements free from rattling without any connecting means other than being retained between the appliance casing and the grid element when inserted in position.

Another object was to provide a receptacle for catching drippings from the grids, being so arranged that the drippings would drop therein regardless of the position of the movable casing member with reference to the stationary one.

The claims in suit are 1, 2, 3, 12, 14, 16 and 21.¹

Appellee contends that the art of electric toasters had been baffled in its attempts to devise one of few parts with a low base and that its assignor solved this difficulty by devising, and it manufactured, an electric toaster or grid of a new combination with a one-piece tray-like bottom that could be assembled on the toaster casing with three operations, and that the openings on the appliance for air circulation were so devised that the transmission of heat to the tray base or its handles was restricted.

In determining the validity of the claims involved, the following legal principles are applicable: first, that the issuance of the patent is enough to show, until the contrary appears, that all of the conditions prerequisite to patentability are present and that a heavy burden rests on the assailant to show invalidity. Mumm v. Jacob E. Decker & Sons, 301 U.S. 168, 171, 57 S.Ct. 675, 81 L.Ed. 983; Adamson v. Gilliland, 242 U.S. 350, 353, 37 S.Ct. 169, 61 L.Ed. 356; second, that a new combination of elements, old in themselves, but which produces a new and useful result or any diversity of arrangement of old things which introduces a new function or a new and useful method performing the old function in a new way, support patentability, Expanded Metal Company v. Bradford, 214 U.S. 366, 381, 29 S.Ct. 652, 53 L.Ed. 1034; Webster Loom Company v. Higgins, 105 U.S. 580, 591, 26 L.Ed. 1177; third, if those skilled in the mechanical arts are working in a given field and after repeated efforts fail to discover a new and useful improvement, he who first makes the discovery has done more than the skilled mechanic in the art and has achieved patentability. Temco Electric Motor Company v. Apco Manufacturing Company, 275 U.S. 319, 48 S.Ct. 170, 72 L.Ed. 298.

A grill is one of the oldest cooking utensils known to our civilization. However, Garrett in his 1892 Encyclopedia of Cookery said, "all good grill cooks employ tongs" and the toaster is also of ancient origin. As early as 1807 Roberts, in his patent No. 3083, described a toaster that might be extended or contracted at pleasure. A tray was described as a "kitchen utensil" as early as 1639.

The advent of electricity for the operation of household appliances caused the development of the portable cooker principle in toasters, grills, casseroles, etc., and from 1933 has shown an increasing popularity. The use of a small, movable appliance permits adequate cooking with an economical expenditure of current and requires little space.

One of the problems encountered in the use of these cooking appliances was the engendering of heat destructive to tables and furniture and discomfort and sometimes injury and burning to the operator in using and moving the appliance.

There are a number of examples in the prior art of the use of movable electrical cooking appliances which leave the field of discovery exceedingly narrow. The references cited in the patent office and relied upon by appellant to show the state of the prior art and the lack of invention are: Weir, No. 1,574,141, issued February 23, 1926; Strauss, No. 1,764,908, issued June 17, 1930; Barnes, No. 1,804,196, issued May 5, 1931; Barnes, No. 1,866,674, issued July 12, 1932; Lucia, No. 1,873,898, issued August 23, 1932; Fagen, No. 1,969,361, issued August 7, 1934; McArdle, No. 1,973,175, issued September 11, 1934; Nelson, No. 2,015,812, issued October 1, 1935.

Appellant also relies upon the following patents not cited against the application; Thornton, No. 1,161,167, issued November 23, 1915; Warner, No. 1,179,896, issued April 18, 1916; Vaughn, No. 1,681,142, issued August 14, 1928; Wolcott, No. 1,680,402, issued August 14, 1928; Talbot, No. 1,737,620, issued December 3, 1929; Lamb, No. 1,778,263, issued October 14, 1930; Pickering, No. 1,907,441, issued May 9, 1933; Wolcott, No. 1,893,212, issued December 4, 1934; Nelson, No. 2,015,812, issued October 1, 1935; Bolesky, No. 2,032,106, issued February 25, 1936.

Most of the devices and patents have been introduced to show the development of the prior art in relation to movable cooking appliances. Appellant relies on three as best anticipating appellee's device and as showing a lack of patentability; Barnes, 1,804,196; Pickering, 1,907,441, and Wolcott, 1,983,212. The others cited may be dismissed as not particularly germane to the inquiry and it would serve no useful purpose to discuss them. All of them in broad outline are found in the above three, and we shall confine our analysis to those.

Barnes' device is an electric, hollow base, cooking appliance with a lower heating element secured thereto, which in turn is secured to the upper heating element by a slot-hinge structure made up of an inwardly and downwardly curved member pivotally connected at its upper end to the top section. The lower heating element is fastened to a tray-like base, much of its area being so close to it as to act as a heat conductor. This base is provided with a plurality of feet made of separate insulating material to avoid radiation from the base to the seating place. The assembly is somewhat complex.

The patent office considered Barnes in connection with appellee's application and rejected it as anticipatory, which weakens it as a prior art reference here. Gulf Smokeless Coal Company v. Sutton, Steele & Steele Company, 4 Cir., 35 F.2d 433.

Pickering devised an electric movable utensil for cooking cakes, or the like,...