Cox v. Doherty
| Citation | 44 F. Supp. 357 |
| Decision Date | 10 April 1942 |
| Docket Number | No. 1315.,1315. |
| Court | U.S. District Court — Southern District of California |
| Parties | COX v. DOHERTY et al. |
Arthur F. Larrabee, of Los Angeles, Cal., for plaintiff.
Merrill Brown (of Dudley, Brown & McCurdy), of Los Angeles, Cal., for defendant.
This is an action for infringement of United States Letters Patent, No. 1,820,624, brought by the plaintiff, the assignee of Victor V. Kunkel, to whom Letters Patent were issued on August 25, 1931. At a pre-trial hearing the issues were limited to claimed infringements of claims No. 1, No. 5 and No. 6 of the patent in suit, and claim of defendant that plaintiff's patent is not valid in that alleged inventions set forth in claims 1, 5 and 6 have been patented and described in printed publications prior to the supposed invention. Claims 1, 5 and 6 are as follows:
The defendant, to support his claim of prior art, relied upon and introduced in evidence the following United States Letters Patent:
Doherty 2,094,782 Oct. 5, 1937
Mann 810,291 Jan. 16, 1906
Brown 1,632,431 June 14, 1927
Beinke 537,379 Apr. 9, 1895
Stark 1,633,685 June 28, 1927
Eggers 1,712,202 May 7, 1929
Knapp 1,055,788 Mar. 11, 1913
The Doherty patent first mentioned was issued to the defendant in this action. It is clear that there is no fundamental difference between the Kunkel and the Doherty methods of construction of the metal tile, capping or trim, or the methods of applying the same in making sinks, wall protection, or other uses in building. Considerable emphasis was laid upon the "rearwardly turned peripheral flanges which have tangs which are bent over substantially parallel to the rear surface of the tile, said tangs being imbedded in the plastic material which fills the space at the back of the imbedded tile". The Beinke patent, supra, which covered building-molding, provided, among other things: "* * * This molding in all of its forms is provided with lugs or projections bent alternately in opposite directions, and made by forming slits in the edges of the molding and bending the metal between the slits outwardly and inwardly, * * * The molding thus formed is filled with plaster or cement such as is used for covering the lath, and while the plaster on the lath, as well as that which fills the molding is still green and wet, the molding is forced into place, the prongs entering the plaster on the wall, and the plaster in the molding coming up against the plaster on the wall, so as to adhere thereto as the plaster dries out."
The Brown patent, which covers wall panel, supra, provides:
In this patent a number of inturned flanges made by merely cutting the back of the pan and bending a portion inwardly provides a convenient means of securing the sheet of metal lath in the pan.
In the Mann patent, supra, covering interior building construction, provision is made for the use of sheet metal filled with cement in the trimmings of base pieces, commonly known as "trim".
In view of the conclusions reached by the court, it is not necessary to refer to all of the patents introduced in evidence by the defendant.
An invention, in order to be protected by Letters Patent, must come within the terms prescribed by Congress. U.S. C.A. Title 35, Sec. 31; R.S. Sec. 4886. See also U.S.C.A. Title 35, Sec. 73; R.S. Sec. 4929. It is generally held that the question of invention is a fact to be determined by the trial court. It is thus distinguished from a question of law. Keyes v. Grant, 118 U.S. 25, 6 S.Ct. 974, 30 L.Ed. 54; Thomson Spot Welder Co. v. Ford Motor Co., 265 U.S. 445, 44 S.Ct. 533, 68 L.Ed. 1098. Therefore, unless error is shown the appellate courts usually accept the findings on questions of fact made by the trial court. Adamson v. Gilliland, 242 U.S. 350, 37 S.Ct. 169, 61 L.Ed. 356; Wright Blodgett Co. v. United States, 236 U.S. 397, 35 S.Ct. 339, 59 L.Ed. 637; Sanitary Refrigerator Co. v. Winters, 280 U.S. 30, 50 S.Ct. 9, 74 L.Ed. 147. In view of these settled principles of law, trial courts have exercised the greatest care in examining the claims made by inventors or their assigns under patents.
It is clear to the court that claims made by the plaintiff in his patent and the claims made by defendant in his patent, were both known to the prior art, and were described in printed publications; it therefore cannot be said that the claims were new. Mast, Foos & Co. v. Stover Manufacturing Co., 177 U.S. 485, 20 S.Ct. 708, 44 L. Ed. 856; Duer v. Corbin Cabinet Lock Co., 149 U.S. 216, 13 S.Ct. 850, 37 L.Ed. 707.
It cannot be said that the device in question accomplishes a result never before attempted or thought of, or that the materials are used in a manner never before employed. Concrete Appliances Co. v. Meinken, 6 Cir., 262 F. 958. Plaintiff failed in his attempt to exploit his device or to have the same generally accepted by the trade, and while somewhat better success attended the efforts of the defendant, it cannot be said that the device had long and continuous recognition. New Process Fermentation Co. v. Maus, 122 U. S. 413, 7 S.Ct. 1304, 30 L.Ed. 1193.
. Atlantic Works v. Brady, 107 U.S. 192, 2 S.Ct. 225, 231, 27 L.Ed. 438.
It is clear to the court that any skilled mechanic could, without the exercise of much thought, make and use the...
To continue reading
Request your trial