Artmoore Co. v. Dayless Mfg. Co.

• Decision Date: 08 March 1954
• Docket Number: No. 10819.,10819.
• Citation: 208 F.2d 1
• Parties: ARTMOORE CO. et al. v. DAYLESS MFG. CO., Inc. et al.
• Court: U.S. Court of Appeals — Seventh Circuit

208 F.2d 1 (1953)

ARTMOORE CO. et al. v. DAYLESS MFG. CO., Inc. et al.

No. 10819.

United States Court of Appeals, Seventh Circuit.

November 6, 1953.

Rehearing Denied December 14, 1953.

Writ of Certiorari Denied March 8, 1954.

Maurice S. Cayne, Benton Atwood, Chicago, Ill., for defendants-appellants.

Eugene C. Knoblock, South Bend, Ind., Clarence F. Poole, and Parker & Carter, Chicago, Ill., for plaintiffs-appellees.

Before MAJOR, Chief Judge, and FINNEGAN and SWAIM, Circuit Judges.

Writ of Certiorari Denied March 8, 1954. See 74 S.Ct. 518.

MAJOR, Chief Judge.

This action was commenced for the alleged infringement of claims 7 and 10 of patent No. 2,108,727, entitled "Mop," issued February 15, 1938, to K. S. Rogers. At that time the patent was owned by Niles Metalcraft Company, a Michigan corporation, but ownership was, during the pendency of the action, transferred to Levant C. Rogers and Dorothy Rogers, co-partners doing business as Niles Metalcraft Company, which was substituted as a party plaintiff. The other plaintiff, Artmoore Company, is the exclusive distributor of the mop manufactured under the patent in suit. Levant C. Rogers is a brother of K. S. Rogers, the inventor of the patent, now deceased. The defendant Leslie Hoffman is an official and manager of the defendant Dayless Manufacturing Company, Inc., which manufactures the alleged infringing mop.

The subject matter of the patent relates particularly to a mop employing sponge rubber as a mopping element. The object of the invention as stated in its specifications "is to provide a mop * * * with novel means for extracting water from the mop element * * * in which the carrier for the mopping element serves to guide a shiftable wringing roller assembly * * * a mop with a sponge rubber mop head with respect to which a rigid roller journaling frame is shiftable to extract water and dirt from the sponge rubber by compressing the same in a movement toward the outer end thereof."

The patent contains ten claims but, as stated, only two are in issue. Claim 7 reads: "A mop comprising a handle, a carrier unit having an expansible mopping member therein, a rigid frame unit arching the carrier, said frame unit having rollers at opposite sides thereof in fixed predetermined spaced relation and engaging opposite sides of the mopping member, one of said units being reciprocable relative to the other to wring said mopping member between said rollers and means carried by the handle and cooperating with said handle to mount said units and effect said reciprocation." Claim 10 reads: "A device as set forth in claim 7 wherein the mopping member is formed from a resilient expansible material and normally bulging whereby said frame and rollers will be held by the bulging thereof in inoperative position."

After a rather extended hearing, the District Judge rendered a memorandum opinion, 109 F.Supp. 181, 186, made findings of fact and conclusions drawn therefrom. It was found and concluded that the claims in issue were valid and infringed. The court also found and concluded that defendants' conduct in connection with the manufacture and sale of the alleged infringing mop constituted "wilful and wanton infringement." A judgment was entered December 31, 1952, predicated upon the findings and conclusions thus noted, sustaining the validity of the claims in issue and their wanton and wilful infringement by defendants, awarding damages to plaintiffs with reference to a special master for an accounting, and enjoining and restraining defendants in the manufacture or sale of a mop embodying the claims in suit. The judgment also awarded to plaintiffs taxable costs and reasonable attorney fees to be recovered from defendants. From this judgment the appeal comes to this court.

While there are certain subsidiary issues, such as the asserted improper admission of testimony and file wrapper estoppel, the principal issues relate to the validity of the claims, their infringement by defendants and, if there be infringement, whether it was wilful and wanton.

On the issue of validity the findings of the District Court in abbreviated form are: The patent covers a mop employing a sponge rubber mopping element with novel means for extracting water from the mopping element. The mop includes a unit in which a rubber sponge is clamped firmly in a steel channel, a unit including a rigid bridge having four legs straddling the opposite sides of the channel and journaling two steel pins mounting rubber rolls in a fixed position and in engagement with the opposite sides of the mopping member, a handle, and means including a lever carried by the handle and cooperating with the handle to effect a reciprocal relationship between the units to wring the mopping member between the rollers. The combination and arrangement of the parts causes them to maintain their proper relation when used for cleaning purposes even though no latches and springs are employed; permits a progressive compressive wringing of the flared part of the sponge between fixedly spaced rollers, with the expansion of the sponge assisting return of the rollers and the operating lever to an inoperative position and also serving to hold the same in inoperative position after release of the lever; and the fixed spacing of the rollers by the rigid frame unit assures a uniform and regulated action over an extended period of time.

The findings further relate that the patented mop possesses a number of advantages resulting from the combination and arrangement of its parts, and from its novel rigid frame unit providing fixed spacing of the rollers. Plaintiffs' mop has been in commercial use since 1935, and it embodies the invention of claims 7 and 10 of the Rogers patent. Plaintiffs' commercial mop sold to the trade for over five times as much as conventional rag string mops, but nevertheless over 2,000,000 have been sold and it has met with acceptance by housewives and other users because of its advantages. Prior to the invention of the patent in suit, no self-wringing mop with attached wringing rollers had been made available to the public. None of the devices of the expired prior art patents relied upon by defendants to anticipate the claims of the patent in suit was practical as a self-wringing mop.

On the issue of validity we start, as we must in all patent cases and as the District Court no doubt did, with the presumption of validity which attaches to the grant. This presumption is not an idle gesture, as defendants would have us believe, but is a positive factor which must be overcome by one who asserts invalidity. Radio Corporation of America v. Radio Engineering Laboratories, 293 U.S. 1, 8, 54 S.Ct. 752, 78 L.Ed. 1453; Mumm v. Jacob E. Decker & Sons, 301 U.S. 168, 171, 57 S.Ct. 675, 81 L.Ed. 983. In addition, we have the findings of fact made by the District Court, which we are not at liberty on review to ignore unless clearly erroneous. Federal Rule Civil Practice 52, 28 U.S. C.A. Thus, the defendants are faced with the difficult problem of not only overcoming the presumption in favor of validity but in demonstrating that the findings of the District Court sustaining validity are clearly erroneous.

While the defendants at the trial introduced many prior art patents and publications in an attempt to show that the patent in suit was anticipated by the prior art, only five of such patents are relied upon in this court. However, we need mention only three, because they are asserted to be the most pertinent. They are Rogers No. 2,008,615, Kawasaki No. 1,137,760, and Sanguinet No. 1,352,837, and much stress is laid upon the fact that these three patents were not cited in the patent office. We have read the oral testimony, examined the documentary evidence and physical exhibits, and we are satisfied that the record supports the findings as made. Any doubt which we might entertain is dispelled by the keen analysis made by the District Court (Judge Perry) of the principles embodied in the patent in suit as well as the teachings of the prior art. We discern no reason to ignore the findings thus made, and certainly we cannot hold that they are clearly erroneous. Having thus concluded, no good purpose could be served by a detailed analysis either of the patent in suit or of the prior art relied upon to anticipate.

Defendants' argument based on these prior art patents, not cited in the patent office, is not convincing. It has been held, and we think with logic, that it is as reasonable to conclude that a prior art patent not cited was considered and cast...