Baltz v. Botto
| Decision Date | 31 October 1956 |
| Docket Number | Civ. No. 2738. |
| Citation | 147 F. Supp. 468 |
| Court | U.S. District Court — Western District of Tennessee |
| Parties | William BALTZ, Individually, and Wonder Products Company, a Corporation, Plaintiffs, v. Amelia T. BOTTO, Individually, and V. F. Botto & Company, a Proprietorship, and Southern Toy Manufacturing Company, a Corporation, Defendants. |
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Heiskell Weatherford, Jr., Weatherford & Weatherford, Memphis, Tenn., Benjamin H. Sherman and Anthony R. Chiara, of Hill, Sherman, Meroni, Gross & Simpson, Chicago, Ill., for plaintiffs.
John T. Wilkinson, Jr., Memphis, Tenn., W. A. Snow, Rummler, Rummler & Snow, Chicago, Ill., for defendants.
This action came before the Court on the complaint of the plaintiffs against defendants for infringement by defendants of United States Letters Patent No. 2,437,015, issued to William Baltz on March 2, 1948, and of its reissue, Re. 23,849, dated July 13, 1954.
Upon trial of said cause in open Court, October 1 through October 4, 1956, and upon full consideration of the pleadings, stipulations, depositions, and exhibits and of the motions made in this cause, the Court makes the following:
Findings of Fact
1. This action was filed on or about September 7, 1955, for infringement of United States Letters Patent No. 2,437,015, which was duly and legally issued to William Baltz, plaintiff, on March 2, 1948, and of Re. 23,849, a reissue of Patent No. 2,437,015, which was duly and legally reissued to said William Baltz on July 13, 1954.
2. Plaintiff, Wonder Products Company, a Tennessee corporation, duly organized on the 28th day of April, 1955, by reason of a certain assignment in writing dated May 2, 1955, is the assignee and successor to all of the rights, claims and demands in, to and under an exclusive license under U. S. Patent No. 2,437,015, and Re. 23,849, of E. J. Koller, A. G. Manning and W. E. Matthews, copartners doing business under the name and style of Wonder Products Company, plaintiffs in Civil Action No. 2738, at the time of filing the complaint therein, and said copartners were, in turn, the successors to and assignees of all of the rights, claims and demands of Wonder Products Company, a corporation dissolved on July 3, 1951.
3. The plaintiff, William Baltz, is the patentee and owner of United States Patent No. 2,437,015, issued on March 2, 1948, entitled "Suspended Horse", and of the reissue thereof, Re. 23,849, dated July 13, 1954; and the plaintiff Wonder Products Company, a Tennessee corporation organized on April 28, 1955, is the exclusive licensee under said original and reissue patent and the said plaintiffs have the right to jointly bring this action.
4. Defendant, Southern Toy Manufacturing Co., is a Texas corporation having its principal office and place of business at Waco, Texas, and is the manufacturer of the "Texas Bronc" and other spring-suspended hobby horses complained of in Civil Action No. 2738, typical models of which are portrayed in Pltfs. Exs. W-3, W-16, W-12, W-13 and W-14, and is selling and has sold said spring-suspended horses within this district within six years prior to the filing of the complaint in this action.
5. Defendant, Amelia T. Botto, is doing business as V. F. Botto & Company and has an office and place of business at Memphis, Tennessee, and in such business is selling and has sold said spring-suspended horses manufactured by Southern Toy Manufacturing Company within this District, within six years prior to the filing of the complaint in this action. On or about September 27, 1956, by stipulation of the parties and upon order of this Court, defendant, Amelia T. Botto, individually, and doing business as V. F. Botto & Company, voluntarily appeared in this cause, waived the necessity of further service of process, adopted the allegations of the answer heretofore filed in this action, and was substituted as party defendant in the place and stead of V. F. Botto & Company, which had erroneously been referred to as a corporation of the State of Tennessee.
6. The hobby horses identified as Plaintiffs' Exhibit 3 "Twin-Jumper", Plaintiffs' Exhibit 4 "Black Beauty" and Plaintiffs' Exhibit 8 "Texas Bronc" are identical with and are spring-suspended hobby horses manufactured and sold by the defendant, Southern Toy Manufacturing Company, and are identical with spring-suspended hobby horses manufactured by the defendant, Southern Toy Manufacturing Company, and sold by both defendants in this District within six years prior to the filing of the complaint, and are products of said defendants that plaintiffs charge to infringe said patents in suit.
7. Plaintiffs rely upon the Claim of Baltz original patent No. 2,437,015, being the only claim thereof, and claims 1 and 2 of Baltz Reissue Patent No. 23,849; claim 1 of said reissue patent being identical to the claim of the original Baltz patent No. 2,437,015.
8. The spring-suspended hobby horses identified as Plaintiffs' Exhibit 9 "Wonder Horse DeLuxe", Plaintiffs' Exhibit 10 "Wonder Pony", Plaintiffs' Exhibit 11 "Wonder Mare" and Plaintiffs' Exhibit 12 Regular "Wonder Horse" are identical to the commercial products made and sold by plaintiff, Wonder Products Company, and/or its predecessors.
9. The hobby horse identified as Plaintiffs' Exhibit 13 is the original model of a spring-suspended horse made by plaintiff, William Baltz, and is the model which said plaintiff furnished to his patent attorney, Victor J. Evans, and from which the patent drawings and specifications were prepared.
10. The model identified as Plaintiffs' Exhibit 14 is a demonstration model, one-half scale of the original commercial structure made and sold by William Baltz, and is the model which said William Baltz demonstrated before the Board of Appeals of the Patent Office, and is identical in construction to the commercial exemplification of the structure of his patent made by the patentee, William Baltz, and sold commercially by him commencing May 3, 1945. Said model is identical in structure to the commercial spring-suspended hobby horse made and sold by Wonder Products Company, co-plaintiff, under its exclusive license from the plaintiff William Baltz during the years 1949, 1950 and 1951.
11. The spring-suspended hobby horses manufactured and sold by defendants are identical in structure to plaintiff Baltz' commercial model, Plaintiffs' Exhibit 14, and the commercial structure, plaintiffs' Exhibit 1, made by plaintiff Wonder Products Company except for minor details in design of the artificial horse body. Plaintiffs' Exhibit 8, Defendants' "Texas Bronc", is a Chinese copy of plaintiffs' commercial structure Plaintiffs' Exhibit 1 except for slight changes in the silk screening of the saddle and the addition of a fabric tail; Plaintiffs' Exhibit 4, defendants' "Black Beauty", is a Chinese copy of plaintiffs' commercial structure except that the color is black instead of red and except for certain minor changes in the positioning and configuration of the horse's head and the design of the legs, Plaintiffs' Exhibit 3, defendants' "Twin Jumper" is identical to plaintiffs' commercial model, Plaintiffs' Exhibit 1, except for minor details in the construction of the artificial horse, which has been designed to accommodate a smaller child but contains all of the characteristics of the artificial horse including the hand hold or bridle, the seat, and foot rest or stirrups. All of these spring-suspended hobby horses made and/or sold by defendants operate and function in exactly the same manner as plaintiffs' said commercial spring-suspended hobby horses and in exactly the same manner as Plaintiffs' Exhibit 13, the original Baltz model, which is substantially an exact embodiment of the structure set forth in the specifications and drawings of the patents in suit, and all perform identically in the same manner, with the combination of the same elements functioning together to produce the same unitary result.
12. The purpose, action, function and operation of, and the results obtained from the original Baltz model, Plaintiffs' Exhibit 13, and of and from the commercial structures manufactured by Baltz and by Wonder Products Company, and of and from the spring-suspended hobby horses made and/or sold by defendants are clearly described in the specifications of both the Baltz original and Reissue patents in identical language, as follows:
13. All of the said spring-suspended horses, the embodiment of the Baltz patents, Plaintiffs' Exhibit 13, the plaintiffs' commercial structures, and the defendants' commercial structures include the same combination of the same elements, to wit: (1) a base, (2) uprights secured to said base, (3) plates or screw-eyes secured to the uprights, (4) coil springs connected by said plates or screw-eyes to said uprights, (5) an artificial horse, and (6) plates or cross-pieces secured to said horse to extend at right angles thereto, with said springs connected to said cross-pieces at an angle thereto and adapted to stably support said horse thereby with relation to said uprights, as set forth in the specifications to accomplish the action and bring about the result described therein.
14. The Patent Office Board of Appeals, in allowing the claim of the original Baltz...
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