Broadway Towel Supply Co. v. Brown-Meyer Co.

• Decision Date: 04 September 1917
• Docket Number: 2971.
• Citation: 245 F. 659
• Parties: BROADWAY TOWEL SUPPLY CO. et al. v. BROWN-MEYER CO.
• Court: U.S. Court of Appeals — Ninth Circuit

245 F. 659

BROADWAY TOWEL SUPPLY CO. et al. v. BROWN-MEYER CO.

No. 2971.

United States Court of Appeals, Ninth Circuit.

September 4, 1917

Rehearing Denied October 8, 1917.

T. J Geisler, of Portland, Or., for appellants.

Joseph L. Atkins, of Portland, Or., for appellee.

Before GILBERT and HUNT, Circuit Judges, and DIETRICH, District Judge.

GILBERT Circuit Judge.

In a suit to enjoin the infringement of letters patent No 1,115,895, issued November 3, 1914, to C. F. Brown, assignor of the appellee, the court below found that the appellant had infringed claim 2, which reads as follows:

'In a towel holder or the like, the combination with a supporting member of an assembling member adapted to secure towels in assemblage upon the supporting member, a flexible retaining member, co-operative therewith, for the purpose specified, and means for detachably securing both ends of said retaining member together.'

In the appellee's device the 'supporting member' is a shelf; the 'assembling member' is a standard, curved at the upper end, passing in its lower end through the shelf. The 'flexible retaining member' is a chain, one end of which is attached to the curved end of the assembling member; the other end being detachably secured to the lower end of the assembling member beneath the shelf by the use of a padlock. The towels are fitted with eyelets through which, when they are piled upon the shelf, the standard or assembling member is passed. In practice a towel is taken from the shelf, slipped over the curve of the standard, and after being used is dropped; but it is retained by the sag of the chain, which, according to the drawings, extends into a basket on the floor, which serves as a depository for soiled towels.

The court below was of the opinion that the appellant's device, wherein the chain is attached to the bottom of the basket on the inside, instead of to the foot of the assembling member, did not vary the appellee's device to such an extent as to add a new discovery, or even an old element to the combination, and propounded the question whether, if the appellant had used the Reid patent, and had simply detached the chain from the wall and attached it to the bottom of the basket, it could be said that such change constituted an added discovery or new element to the Reid patent. But we think the test question here is not whether the defendant has added a new element to the Reid or the Brown patent, but it is purely a question whether he has infringed the patent in suit, and that is to be determined from the nature and scope of the appellee's combination as measured by the prior art, and the inquiry whether the appellant has used the combination of elements described therein.

Brown's application for patent contained 11 claims. All but 3 of the claims were rejected by reference to several prior patents and particularly the patent to Reid, issued July 15, 1913, letters patent No. 1,067,622 entitled 'Combined Towel Holder and Rack.' Reid's combination contains all the elements of the appellee's combination, with the single exception that in the Reid device the lower end of the chain is brought back and fastened by a staple to the wall beneath the standard; the loop of the chain serving to hold and retain the soiled towels. All that Brown added to Reid's device was to detach from the wall the lower end of the chain, and bring it higher, and attach it to the lower end of the standard by means of a padlock. That is the essential and distinguishing feature of his improvement, and each claim of the patent that was allowed specifies that feature as an element. The device...