Casco Products Corporation v. Zaiger, 3211.

• Decision Date: 08 December 1937
• Docket Number: No. 3211.,3211.
• Citation: 93 F.2d 210
• Parties: CASCO PRODUCTS CORPORATION v. ZAIGER et al.
• Court: U.S. Court of Appeals — First Circuit

93 F.2d 210 (1937)

CASCO PRODUCTS CORPORATION v. ZAIGER et al.

No. 3211.

Circuit Court of Appeals, First Circuit.

December 8, 1937.

Thomas J. Byrne, of New York City (John K. Carter, of Boston, Mass., on the brief), for appellant.

Nathan Heard, of Boston, Mass. (Frederick A. Tennant, of Boston, Mass., on the brief), for appellees.

Before BINGHAM, WILSON, and MORTON, Circuit Judges.

WILSON, Circuit Judge.

When this case first came before this court, the appeal of the plaintiff was sustained, and the decree of the District Court holding that the alleged patent No. 1,754,669, now owned by the plaintiff, but issued to one Cohen on April 15, 1930, was invalid as not involving invention, was reversed in an opinion filed March 15, 1937.¹

The opinion reversing the decree of the District Court was chiefly based on the ground that it was not known, prior to the proposed use of suction cups by Cohen in the patent in suit to attach a defrosting device to windshields of automobiles, that the heat applied to the windshield by such a device to prevent ice, sleet, and snow from accumulating on the outside of the windshield, would not also cause air left in the suction cups, when attached to the windshield, to expand and so increase the pressure within the cups to such an extent as to counteract the atmospheric pressure on the outside and thus render suction cups useless as a means of attaching such a device to a glass windshield.

Suction cups for many years have been used to attach to smooth surfaces like glass many articles of different sizes and shapes, such as storm shields and glare shields to the windshields of automobiles, devices to clear rain and snow from windshields and electric car windows, and many other similar devices of equal size with those covered by the Cohen patent, including transparent glass plates. See Tanzey patent, No. 886,273, issued 1906; Krafft patent, No. 1,186,010, issued 1916; Eibye patent, No. 1,403,545, issued 1919. None of these, however, employed the use of heat upon the windshield.

It is said that it was not known, prior to the Cohen patent, whether the application of heat to the windshield to melt snow and sleet adhering thereto would not cause the cups to release their grip and thus become useless for the function they are intended to perform, but it did not require inventive genius to solve such a problem, if it ever were a problem. A simple test would have disclosed that the conduction of heat from such a device through the glass, or the rubber of the suction cups, was so negligible as to have no effect on the gripping quality of the cups. It did not involve invention to make such a test, as this court held in Mershon et al. v. Sprague Specialties Company, 1 Cir., 92 F.2d 313, decided August 23, 1937. Neither does it appear that it ever occurred to Cohen to make such a test, nor does he set forth in his description of his patent or in his claims that it was a problem which he had solved by his alleged invention. The delay of five years in having his patent allowed in the patent office indicates that the examiner had grave doubts of its validity, or Cohen had doubts of its practicability.

The use of suction cups for attaching a defroster to a windshield was, no doubt, suggested by the many instances of their use in this and analogous arts in attaching articles to glass surfaces.

"Every inventor is presumed by the law to have borrowed from another, whatever he produces that was actually first invented and constructed or used by that other, in the United States; or was...