99 F.2d 786 (2nd Cir. 1938), 37, Kennedy v. Trimble Nurseryland Furniture, Inc.

Docket Nº:37.
Citation:99 F.2d 786, 39 U.S.P.Q. 506
Party Name:KENNEDY et al. v. TRIMBLE NURSERYLAND FURNITURE, Inc.
Case Date:November 07, 1938
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 786

99 F.2d 786 (2nd Cir. 1938)

39 U.S.P.Q. 506

KENNEDY et al.

v.

TRIMBLE NURSERYLAND FURNITURE, Inc.

No. 37.

United States Court of Appeals, Second Circuit.

November 7, 1938

Pennie, Davis, Marvin & Edmonds, of New York City (William H. Davis, Merton W. Sage, and Albert J. Clark, all of New York City, of counsel), for appellants.

Page 787

Harold E. Stonebraker and Kenneth B. Keating, both of Rochester, N.Y., for appellee.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

MANTON, Circuit Judge.

This suit is on three patents relating to an infant's bathing apparatus-- No. 1,510,596, patented October 7, 1924 on an application filed March 6, 1920, claims 11 and 12 are in suit; No. 1,767,800, patented June 24, 1930 on an application filed July 25, 1921, claims 7 and 8 are in suit; and No. 1,693,389, patented November 27, 1928 on an application filed July 23, 1923, claim 5 is in suit.

Patent No. 1,510,596 covers the combination of flexible bath tub having a collapsible or folding support, and a dressing table which may assume a position overlying the tub for dressing and undressing the infant, and may be swung to a vertical out-of-the-way position when the infant is not being bathed in the tub. No. 1,767,800 extends the combination to include a screen guard arranged along one side of the table which may be erected to protect the infant when the table is in use, and folded when it is not in use. No. 1,693,389 provides a screen carried by the support and having racks for the reception of appliances.

In the first of these the inventor had in mind the combined infant's bath tub and dressing table in which the tub is expansible to set-up relation and when so set up, the dressing table can be swung on a horizontal axis along one side of the tub to an operative position overlying the tub for undressing the infant. The dressing table is next swung to its verticle position (inoperative and out of the way) and the tub employed to bathe the infant. After bathing, the dressing table is again swung to its horizontal position overlying the table for dressing the infant. This combination is so constructed that the tub and the dressing table can be folded or collapsed into compact form so as to take up little space when it is not in use.

The Kennedy brothers developed and exploited this invention. They manufactured a combination bath tub and dressing table under a trade mark 'Bathinette'. After manufacturing for some time, their corporation became financially involved but a new enterprise was later financed by the royalties received for use of the patent under a license to the Woodstock Company and bank loans. The Woodstock Company filed and payment of royalties ceased, whereupon on March 30, 1923, an agreement was made between Kennedy Bros.' Corp. and appellee to take over and fulfill all current and future orders for the baby bath tubs. By a supplemental agreement...

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