Diamond Patent Co. v. Webster Bros.

• Decision Date: 18 February 1918
• Docket Number: 2997.
• Citation: 249 F. 155
• Parties: DIAMOND PATENT CO. v. WEBSTER BROS. SAME v. MURRAY et al.
• Court: U.S. Court of Appeals — Ninth Circuit

249 F. 155

DIAMOND PATENT CO. v. WEBSTER BROS. SAME v. MURRAY et al.

No. 2997.

United States Court of Appeals, Ninth Circuit.

February 18, 1918

J. J Scrivner, of San Francisco, Cal., and George E. Harpham, of Los Angeles, Cal., for appellant.

M. G Gallaher, of Fresno, Cal., for appellees.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District judge.

WOLVERTON District Judge.

These cases were consolidated in the court below for trial. Both are for injunction, one to restrain the manufacture and the other the use of a patented invention. The question presented is one of infringement. The patent pertains to glass showcases, and consists in the means of fastening one glass surface to another by use of an elastic substance composition, or contrivance, so as to prevent breakage through communication of vibration of the glass plates. The conception is the insertion of a felt strip between the glass surfaces, bound thereto by cement applied to both sides of the felt, of such consistency and adaptability that it does not permeate the felt, forming a skin upon either side, thus producing a cushion having an elastic or resilient property which serves to absorb vibration of the plates, and prevents its communication from one to another, and likewise breakage of the plates themselves. It is unnecessary to pursue the details of the invention further. A particular description of it may be had by reference to Diamond Patent Co. v. S.E. Carr Co., 217 F. 400, 133 C.C.A. 310.

The claims are two in number, and are as follows:

'1. A structure comprising a plurality of glass plates, the edges of which are spaced from the adjacent plates, a felt cushion filling the space between the adjoining plates, the plates being cemented to the felt, each plate being adapted to freely vibrate in its natural plane of vibration, and prevented by the felt cushion from imparting its vibration to the adjacent plates.

'2. A structure comprising a plurality of glass plates, an unconfined edge of one plate nearly but not quite meeting another plate also with unconfined adjacent edge, an elastic material filling the space thus existing between the nearest adjacent surfaces of the plates, said plates being attached to the elastic material, whereby the plates by reason of their unconfined edges and the intervening elastic material can each vibrate or move in any direction independently.'

The important feature of claim 1, so far as it pertains to the present controversy, is the felt cushion filling the space between the adjoining plates, and so adapted as to prevent the vibration of one plate from being imparted to the conjoining plate. The distinguishing feature of claim 2 is that an elastic material for filling the space is substituted for the felt and its combination. There is testimony in the record tending to show that plainti...