Drumhead Co. of America v. Hammond
Decision Date | 01 June 1936 |
Docket Number | No. 3164.,3164. |
Parties | DRUMHEAD CO. OF AMERICA et al. v. HAMMOND. |
Court | U.S. District Court — Western District of Pennsylvania |
Julius E. Foster, of Pittsburgh, Pa., for plaintiffs.
William B. Jaspert, of Pittsburgh, Pa., for defendant.
Defendant contends that the patent in suit is invalid for the reason that it lacks invention. Drumheads, prior to the invention of the patent in suit, required frequent adjustment by reason of moisture and changes in temperature. The patent in suit overcomes this objection by the use of a fabric drumhead, the fabric being painted with a solution of a cellulose derivative and a plasticizer. Drumheads made in accordance with the patent in suit have gone into commercial use. The elements of the drumheads of the patent in suit are old. The combination of the elements is new. The combination was not obvious and it required the use of more than mechanical skill. The result obtained was a substantial advance in the drumhead art. In General Electric Co. v. Hagan Co., 38 F.(2d) 995, 999, 1000 (this court) it is stated:
In Radiator Specialty Co. v. Buhot, 39 F.(2d) 373, 376 (C.C.A.3), it is stated in the opinion by Woolley, C. J., that:
We conclude that the patent contains invention.
Defendant further contends that the patent in suit has been anticipated by prior patents. A patent is presumptively valid. Westinghouse Electric & Mfg. Co. v. Formica Insulation Co., 266 U.S. 342, 348, 45 S.Ct. 117, 69 L.Ed. 316. This presumption of validity is strengthened when the patents cited are substantially the same as the patents cited as anticipatory in the hearing or consideration of the application for the patent in suit. Manell B. B. & T. Co. v. Pennsylvania Fireproofing Co., No. 2282 Equity (D.C.W.D.Pa.) March 22, 19301; Fairbanks, Morse & Co. v. Stickney, 123 F. 79, 82 (C.C.A.8); Elkon Works v. Welworth Automotive Corp., 25 F.(2d) 968, 970 (D.C.E.D.N.Y.); Smokador Mfg. Co. v. Tubular Products Co., 27 F.(2d) 948, 950 (D.C.Conn.); Gulf Smokeless Coal Co. v. Sutton, Steele & Steele, 35 F.(2d) 433, 437 (C.C.A.4).
The test of anticipation is stated by C. J. Buffington, in the case of Hartford-Empire Co. v. Hazel-Atlas Glass Co., 59 F.(2d) 399, 411, 412 (C.C.A.3) as follows: "
Applying the rule as thus laid down, we conclude that the patent in suit has not been anticipated by the prior art patents, or publications cited by the defendant, not any of which contain a drumhead made of fabric, painted or coated with a cellulose derivative and a plasticizer.
Defendant contends that claims...
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