Alco Kar Kurb, Inc. v. Ager

• Decision Date: 23 February 1960
• Docket Number: Civ. A. No. 265-59.
• Citation: 181 F. Supp. 97
• Parties: ALCO KAR KURB, INC., Plaintiff, v. Victor L. AGER, d/b/a Totowa Concrete Block Company and Two Guys From Harrison, Totowa, Inc., Defendants.
• Court: U.S. District Court — District of New Jersey

181 F. Supp. 97

ALCO KAR KURB, INC., Plaintiff, v. Victor L. AGER, d/b/a Totowa Concrete Block Company and Two Guys From Harrison, Totowa, Inc., Defendants.

Civ. A. No. 265-59.

United States District Court D. New Jersey.

February 23, 1960.

Jacob and A. A. Levinson, Perth Amboy, N. J., Caesar & Rivise, Philadelphia, Pa., by Arthur A. Jacobs, Philadelphia, Pa., of counsel, for plaintiff.

Guy G. Gabrielson, Jr., Moses, Nolte & Nolte, New York City, by Albert C. Nolte, Jr., New York City, Samuel J. Snyder, Long Island City, N. Y., of counsel, for defendant Ager.

WORTENDYKE, District Judge.

In this patent infringement action, the validity of United States Patent No. 2,794,375 issued to Dominick and Peter DiFalco on June 4, 1957, upon application filed October 12, 1954, is placed in issue by the defendant Victor L. Ager, trading as Totowa Concrete Block Company, by way of motion for summary judgment, pursuant to F.R.Civ.P. 56, 28 U.S.C. Plaintiff, a corporation of the State of Pennsylvania, is an assignee of the patent by assignment dated January 28, 1958. Defendant Ager asserts invalidity of the patent not only in the answer to the complaint for infringement, but by way of counterclaim for a declaratory judgment of non-infringement and invalidity. It was represented to the Court at the pretrial conference that the co-defendant Two Guys from Harrison, Totowa, Inc., had filed no answer (nor has any answer as yet been filed in its behalf), and that subject to the outcome of the conference, there might be a dismissal of the action as to said defendant (Two Guys). The Court has not been advised respecting the present status of Two Guys in the cause, and said defendant has neither joined in the present motion nor independently moved for summary judgment.

The title of the patent in suit appears at the head of its specifications as "Sectional Curb for Parking Lots and the Like." The object of the invention as stated therein "is to provide a novel bumper or curbing unit which can be easily and inexpensively prefabricated from concrete or the like, and which can be quickly assembled into a strong and durable continuous border or divider for an automobile parking lot, or like enclosure, capable of acting as an effective barrier or stop and, at the same time, providing adequate drainage for the enclosure." As amplified in the first three of the five claims of the patent, the description of the patented device is as follows:

"1. A sectional curb for a parking lot or the like comprising a plurality of bumper units each prefabricated of concrete or the like, each bumper unit being constructed and arranged to be mounted entirely above ground and being elongated and of generally rectangular cross-sectional configuration with a horizontal top wall and vertical front and back walls and end walls, the bottom of each bumper unit having a pair of ground-contacting supporting piers at its ends and having a ground-contacting center supporting pier and having a pair of drainage arches extending longitudinally intermediate the center pier and the respective end piers and extending upward substantially above the ground, each bumper unit having an anchorage hole extending vertically therethrough generally at the center of each supporting pier, said bumper units being assembled in abutting end-to-end relationship and elongated anchorage elements disposed in non-protruding relationship within the vertical holes and driven into the ground a distance somewhat greater than the height of the units, the arches providing a series of spaced openings permitting surface water to drain from the lot surface through the curb, said anchorage elements being vertically generally uniform throughout, whereby individual bumper units can be removed and replaced by vertical raising and lowering without the need for disturbing adjoining bumper units or for removing the anchorage elements.

"2. A construction according to claim 1 wherein each bumper unit has a vertical tongue formed on one end wall and a corresponding vertical groove formed on the other end wall, the tongue of each unit fitting with the groove of the next adjoining unit to maintain the units in properly aligned relationship, said tongue and groove elements being vertically uniform throughout.

"3. A construction according to claim 2 wherein a generally cubical corner unit is provided to connect two of the bumper units in generally rectangular relationship, said corner unit having a vertical tongue which is vertically generally uniform throughout formed on one of its vertical walls and having a corresponding groove formed on an adjoining vertical wall to connect with the corresponding elements of the adjoining bumper units, said corner unit also having a hole extending vertically therethrough with an elongated vertically uniform anchorage element disposed in non-protruding relationship within the hole and driven into the ground a distance somewhat greater than the height of the corner unit."

More succinctly described, the basic element is a precast concrete beam, longer than its height or width, the bottom side of which is formed with two longitudinal arches or concavities therein which are separated by a center, and two end, piers on which the beam rests upon the surface of the pavement or ground of the parking lot or similar area. The arches provide means for drainage from the surface of the area to be bounded or enclosed by a line or lines of such units. Each unit is also provided with vertical holes through the end and center piers, which permit the insertion therethrough of headless pins or pipes which may be driven into the ground to secure the unit against lateral movement caused by bumping of automobile wheels against it. The bore of these holes is sufficiently larger than the diameter of these pins to permit vertical removal of the beam without disturbance of the pins. For assembly of a line or succession of these units, each block is provided with alternating vertical tongue-and-groove end construction to ensure proper alignment, to add greater rigidity to the finished assembly, and to permit of vertical removal of the beam without disturbing its adjoining units. The third claim provides for the joining of two courses of blocks at right angles to each other by means of a cubical corner unit having a tongue on one side and a groove on the adjoining side, for insertion where needed to effect an enclosure. This corner block is also formed with a hole for the reception of a pin for purposes of similar anchorage and removability as in the case of the beams.

Plaintiff asserts that the principal element of novelty in the patented device is to be found in the readiness with which one or more of the individual sections of the curbing may be removed and replaced without disturbing the position of either of the adjoining sections, and without the use of any tools or excessive effort. Except for the hollowed or arched areas on the bottom surface of each of the units and the use of headless pipes or pins to serve as means of anchorage to the ground and of preventing the lateral displacement of the unit, each beam is in all respects similar, functionally, to a wooden timber spiked to a floor or ground surface to prevent the rolling of a wheeled vehicle. The end-to-end connection between the individual units is essentially similar to a succession of precast parapet copestones provided with similar tongue-and-groove means of interconnection.

The answer of the defendant Ager affirmatively pleads anticipation of the device described in the patent in suit by numerous United States and British patents, as well as by certain printed publications.

Upon a motion for summary judgment the Court must preliminarily determine whether any material issues of fact are presented, and if such an issue of fact is presented by the affidavits submitted upon the motion, that issue may not be resolved by the Court. However, if such a factual issue is not necessary to the decision of the motion, because of the existence of other uncontradicted evidence sufficing to support such a decision, the issue is not material and the motion may be decided without regard to such issuable facts. If, therefore, the prior art as disclosed in the patents relied upon by the defendant anticipates the claimed invention described in the patent in suit, reliance may be placed upon such prior art patents in disposing of a motion for summary judgment. Glagovsky v. Bowcraft Trimming Co., 1 Cir., 1959, 267 F.2d 479; George P. Converse & Co. v. Polaroid Corp., 1 Cir., 1957, 242 F.2d 116; Vermont Structural Slate Company, Inc. v. Tatko Brothers Slate Company, Inc., 2 Cir., 1956, 233 F.2d 9, certiorari denied 352 U.S. 917, 77 S.Ct. 216, 1 L.Ed.2d 123.

The presumption of validity of a patent which arises by virtue of its issuance by the Patent Office is created by the statute, 35 U.S.C.A. § 282, which places the burden of establishing invalidity of a patent upon the party asserting such invalidity. Plaintiff, properly, not only relies upon this presumption, but asserts that it has been enhanced by the decision of the Board of Patent Appeals reversing the decision of the Examiner who had rejected certain of the patent claims. A copy of that appellate decision has been furnished to the Court in the form of an attachment to a copy of the patent in suit, and in that appellate opinion some of the prior art patents here relied upon by the defendant are discussed by the Board. The Examiner's rejection of claim then, and now, numbered 1 was predicated upon his interpretation of the disclosures in United States Patent No. 511,870, issued January 2, 1894 to Winter, United States Patent No. 2,034,028, issued March 17, 1936 to Eliot, British Patent No. 363,086, issued December 17, 1931 to Norman, and British Patent No. 609,905, issued October 8, 1948 to McDermott. Referenced in the patent, in addition to those listed above, are United States Patent No....