Standard Parts, Inc. v. Toledo Pressed Steel Co.
| Decision Date | 07 December 1937 |
| Docket Number | 7272.,No. 7271,7271 |
| Citation | 93 F.2d 336 |
| Parties | STANDARD PARTS, Inc., v. TOLEDO PRESSED STEEL CO. HUEBNER SUPPLY CO. v. SAME. |
| Court | U.S. Court of Appeals — Sixth Circuit |
W. P. Bair, of Chicago, Ill. (Bair, Freeman & Sinclair, of Des Moines, Iowa, Holloway, Peppers & Romanoff, of Toledo, Ohio, Will Freeman, of Chicago, Ill., and W. R. Peppers, of Toledo, Ohio, on the brief), for appellants.
Wilber Owen, of Toledo, Ohio (and Owen & Owen, of Toledo, Ohio, on the brief), for appellee.
Before MOORMAN, SIMONS, and ALLEN, Circuit Judges.
The Withrow and Close patent in suit, No. 1,732,708, issued October 22, 1929, relates to construction torches and truck flares for use as outdoor warning signals and adapted to emit luminescent flame protected from wind and rain. The appellants are dealers in flares competing with those made under the patent, and appeal from decrees sustaining its validity and granting relief for its infringement.
The only difference between a torch and a flare seems to be one of size. The former is intended for the contracting industry and is set out to guard street obstructions at night. A flare is for the use of trucks when they are temporarily halted at night upon the road. The invention, if any there is, lies in the construction of the guarded burner.
The bomb-shaped excavation torch, weighted against upsetting, with flattened bottom and a wick receiving opening in its top, was already old when this court in the light of prior art denied validity to McCloskey patent 1,610,301, in 1929. McCloskey v. Toledo Pressed Steel Co., 6 Cir., 30 F.2d 12. The appellee had, however, built up a substantial business in the open flame bomb-shaped torches of the McCloskey type before the present patent was granted. Although it claimed for such torches capacity to burn in all kinds of weather, it now says that numerous complaints of their extinguishment by wind and rain led the present patentees to the long series of experiments and tests extending over a number of years which resulted in the burner and guard which is the subject matter of the patent in suit, that the device has successfully met the requirements of contractors and State Highway Commissions, has sold in large volume, has been the subject of license to several manufacturers, and has been copied without license by the manufacturer defending the present suits.
We see no patentable distinction in the many claims in suit, however, they may be differentiated from each other, were the issue solely one of infringement. The elements of claim 1, which relate to the guard or cap, require that it be disposed on the outer side of the torch body to enclose the outer end of the wick, that it have an imperforate upper wall, lateral flame openings, and air openings below the flame openings. Other claims variously describe these cap elements. Claim 2 recites the flame openings as adapted to emit luminescent flame, and designates the cap as a flame guard for the wick. Others speak of an outwardly extending flange in the region of the wick opening to which the cap is connected, and still others as having the...
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