Casco Products Corporation v. Zaiger, 4025

• Decision Date: 27 July 1936
• Docket Number: 4026.,No. 4025,4025
• Citation: 15 F. Supp. 1014
• Parties: CASCO PRODUCTS CORPORATION v. ZAIGER. SAME v. SIGNAL MFG. CO., Inc.
• Court: U.S. District Court — District of Massachusetts

15 F. Supp. 1014

CASCO PRODUCTS CORPORATION v. ZAIGER.

SAME v. SIGNAL MFG. CO., Inc.

Nos. 4025, 4026.

District Court, D. Massachusetts.

July 27, 1936.

James A. Brickett, of Boston, Mass., Thomas J. Byrne and Cooper, Kerr & Dunham, all of New York City, and John K. Carter, of Boston, Mass., for plaintiff.

Nathan Heard, Frederick A. Tennant, and Heard, Smith & Tennant, all of Boston, Mass., for defendants.

BREWSTER, District Judge.

The two suits above entitled were tried together. In each suit the defendant is charged with infringement of a single patent owned by the plaintiff. This patent is U. S. No. 1,754,669, issued to Joseph H. Cohen. The defenses are noninvention, anticipation, and noninfringement.

Statement of Facts.

1. On his application filed August 28, 1925, letters patent of the United States, No. 1,754,669 issued to Joseph H. Cohen on April 15, 1930. This invention relates to a heating device, adapted to be applied to windshields of automobiles to prevent the formation of ice and the condensation of moisture on the glass of the windshield. It illustrates a narrow, elongated metal casing containing an electric heating element with the casing held in place on the windshield of an automobile by two rubber vacuum cups, one at each end. The patent explains that the heating element directs the heat against a small portion of glass of the windshield covered by the casing, and that conducted heat over a wider area melts the snow and ice on the windshield. It is claimed for the device that it is so small as not to interfere with the vision of the operator of the car. The patent grants eight claims. Of these claims 1, 2, 3, and 8 are involved in this suit.

Claim No. 1 is the most comprehensive and attempts to cover broadly the idea of detachably securing by suction means a heater of any type to a glass window on a vehicle. It does not so well illustrate the invention as claim 3, which is as follows:

"A heating device for glass windows of motor vehicles comprising a casing, suction cups adapted to attach the casing to the glass of such windows, and a heating unit within said casing, the latter having flexible portions adapted to yieldably engage the glass and confine the heat in the casing to the portion of the glass covered by the same."

In claim 8 an electrical heating element is specified and provides that the casing shall perform the function of reflecting the heat against the windshield and also includes the means of attaching by vacuum cups.

2. From the file wrapper it appears that Cohen met with considerable opposition in the Patent Office in establishing claims 1, 2, and 3, which were claims 2, 10, and 14 in his application. They were repeatedly rejected as not involving invention over Schonger, U.S.No.1,228,482 (1917), in view of Krafft, U.S.No.1,119,177 (1914), and claim 3 was rejected on Murphy, U.S.No. 1,378,604 (1921).

These claims, however, were allowed after they had been finally rejected, following interference proceedings, and after claim 1 had been limited to "suction" means for detachably securing the heater to the windshield.

Claim 8 (originally claim 22) was added for purposes of declaring an interference with Larimore, U.S.No.1,704,897 (March 12, 1929), and was never questioned by the patent examiner.

In urging claim 3 and other claims which were never granted, Cohen's attorney laid particular stress upon the difference between Cohen's invention and the glass type heaters, such as Murphy showed, and asserted that this type of glass heater involved an entirely different principle from Cohen's.

The continued rejection of claims 1, 2, and 3 was based upon the opinion of the Examiner that invention was not involved in the use of vacuum cups as means for attaching a heating element to the windshield. Cohen was not the first to disclose a heater of relatively small dimensions, operating on exactly the principle of conducted heat, which Cohen emphasized. He was, in this respect, anticipated not only by Schonger, but by Telfer, U.S.No.1,523,312 (1925), on application filed December 22, 1923, and if these claims are to be given the scope for which plaintiff now contends, so as to include the glass type, he was anticipated with respect to his heating elements, not only by Murphy, but by Le Blanc, U.S.No.732,087 (1903); Walter, U. S.No.973,089 (1910); Hassel et al., U.S. No.1,092,526 (1914), and British Patent to Stubbs, No. 164,435 (1920). The heaters shown in these patents were all designed to prevent accumulation of snow or condemnation of moisture on the windshields of automobiles. They were attached to the windshield by different means. None of them used Vacuum cups or suction means.

3. It is common knowledge that vacuum or suction cups have, for many years prior to 1925, been used to attach various devices to glass surfaces. Ten patents are in evidence, issued between 1888 and 1920, which show how vacuum cups were utilized to suspend articles from glass surfaces. Nine other patents are cited, showing use of cups for suspending articles from windshields of automobiles. Five of them relate to glare shields attached to windshields. Of these, those that suggest the use of two cups, one at either end of the glass shield, are Downing, U.S.No.1,468,197 (1923) and 1,532,308 (application filed February 28, 1924); Midgley, U.S.No.1,530,784 (application filed May 8, 1924). Still other patents were in evidence establishing the use of suction means and vacuum cups, for the purpose of attaching to the windshields devices for protection against snow and sleet. Krafft, cited in the Patent Office, shows an attachment "so constructed and arranged that it may be readily attached and detached." Krafft's employs a "plurality of suckers." In Leighty & Krafft, U.S.No. 1,186,010 (1916) a collapsible storm shield is provided with vacuum cups as means detachably securing the shield to the windshield of an automobile. Eibye, in his patent U.S.No.1,403,545 (1922), adopts the same means for attaching his windshield wiper as does Meadows in U.S.No.1,467,766 (1923) to secure his shade for windshields. No patent or device earlier than Cohen is in evidence which uses vacuum cups to hold windshield heaters or defrosters if Cohen be given January, 1925, as the date of his invention. If, on the other hand, his filing date of August 28, 1925, is the effective date, Bergdoll, U.S.No.1,565,046 (application filed April 6, 1925) may be cited upon the heating device, and Reed, U.S.No.1,635,906 (application filed March 21, 1925) and Will, U.S.No.1,694,676 (application filed March 21, 1925) on the use of vacuum cups to hold defrosters on the glass of the windshield. Upon claim 8, defendants have cited Burmeister, U.S.No. 1,243,703 (1917); Fagen, U.S.No.1,370,955 (1921); La Perle, U.S.No.1,446,849 (1923) in addition to Walter, Schonger, Murphy, and Telfer, to show that the idea of directing the heat by reflectors at the side of the heating element was old in the patented art. I find this to be the fact. It is not deemed necessary to enlarge upon those patents.

4. In these cases evidence was introduced respecting a windshield defroster, advertised and sold by the Wetmore-Savage Company long prior to the date of Cohen's disclosure, and which showed an antifreezing device for automobile windshields, comprising a heater and means for detachably securing the heater to the glass of the window. The attaching means were not, however, vacuum cups.

5. On the question of Cohen's date of invention, the evidence establishes beyond doubt that as early as January 13, 1925, Cohen submitted to his attorney a rough sketch of his ideas relative to a windshield heater, and that by February 8, 1925, drawings had been prepared similar to those accompanying his application which was not filed until August 28, 1925. In the meantime, the attorney's associate in Washington searched the records in the Patent Office, but nothing further was done toward reduction to practice prior to filing the application. No model was disclosed prior to that time.

6. The plaintiffs began in 1930 to manufacture and sell in quantities windshield heaters of the glass type, so-called, which structurally differ quite materially from that shown in Cohen's...