93 F.2d 336 (6th Cir. 1937), 7271, Standard Parts v. Toledo Pressed Steel Co.

Docket Nº:7271, 7272.
Citation:93 F.2d 336, 36 U.S.P.Q. 360
Party Name:STANDARD PARTS, Inc., v. TOLEDO PRESSED STEEL CO. HUEBNER SUPPLY CO. v. SAME.
Case Date:December 07, 1937
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 336

93 F.2d 336 (6th Cir. 1937)

36 U.S.P.Q. 360

STANDARD PARTS, Inc.,

v.

TOLEDO

PRESSED STEEL CO.

HUEBNER SUPPLY CO.

v.

SAME.

Nos. 7271, 7272.

United States Court of Appeals, Sixth Circuit.

December 7, 1937

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.

SIMONS, Circuit Judge.

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

Page 337

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...

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