Ever-Wear, Inc. v. Wieboldt Stores, Inc.
| Decision Date | 09 June 1970 |
| Docket Number | No. 18019.,18019. |
| Citation | 427 F.2d 373 |
| Parties | EVER-WEAR, INC., Plaintiff-Appellant, v. WIEBOLDT STORES, INC., and Plybent, Inc., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
James P. Ryther, McDougall, Hersh & Scott, Chicago, Ill., for plaintiff-appellant.
Malcolm McCaleb, William E. Lucas, Chicago, Ill., for defendants-appellees.
Before CASTLE, Senior Circuit Judge, and KILEY and CUMMINGS, Circuit Judges.
The plaintiff-appellant, Ever-Wear, Inc., owner of Parsell and Brickman U.S. Patent No. 3,171,700 relating to a portable bar cabinet, brought suit in the District Court charging direct and contributory infringement of the patent. Defendant-appellee, Wieboldt Stores, Inc., is a retailer and is charged with direct infringement because of its sales of the accused devices. Defendant-appellee, Plybent, Inc., is a manufacturer. It is charged with direct infringement in the manufacture of certain accused devices, and with contributory infringement because of its manufacture and sale of assemblies completed by others, some of which when completed were sold to Wieboldt Stores, Inc.
The District Court after trial of the issues filed a memorandum opinion which contains its findings of fact and conclusions of law. The court found and concluded that the patent in suit is invalid because of anticipation by the prior art, and because its subject matter would have been obvious at the time of the invention to a person having ordinary skill in the art.1 Judgment was entered, accordingly, and Ever-Wear, Inc. appealed.
The patent in suit concerns a luggage type portable bar cabinet for carrying liquor bottles, glasses, and bar implements. The structure described and claimed in the patent is formed of two sections which are hinged together to permit opening and closing of the case. Each of the sections is formed of two distinct shells having approximately coextensive transverse dimensions. An outer shell forms the exterior of each section. An inner shell is nested within the outer shell to form the interior of each section. The inner shells are provided with recessed pockets or compartments for the reception of bottles of liquor and bar accessories. The inner and outer shells making up each of the two sections are secured or clamped together at their peripheral edges by a channel-shaped member or valance, the sidewalls of which extend over the edges of the shells and have a sharp projecting edge or tooth for digging into one of the shells. The channel-shaped member on one of the two sections is provided with a groove, the member on the other section with a tongue, which mate to align the two sections when the case is closed. The hardware attached to the case consists of hinge means, latching means, feet upon which the case stands, straps for securing the bottles and the accessories in place, and a handle. The space between the interior surfaces of the outer and inner shells is completely open. This inner and outer shell arrangement permits attaching of the hardware in a manner so that fastener or rivet ends may be disposed between the inner and outer shells where they are hidden and thus do not detract from the appearance of the case.
The patent consists of two claims. They differ only in that Claim 2 does not specifically recite the sharp projecting edge or the tongue and groove features of the channel-shaped members but utilizes broader "means" language to describe elements performing their functions.
In arriving at its determination that the combination of the patent in suit is invalid for failure to meet the standards of the nonobviousness test prescribed by Sec. 103 of the Patent Act (35 U.S.C. § 103) the District Court stated:
Our examination of the record convinces us that the findings made by the District Court are fully supported by the evidence, and that the court's ultimate conclusion that the patent is invalid for obviousness represents the application of correct legal criteria.
In this connection, both the documentary prior art and the testimony of the witnesses, including that of Ever-Wear's expert witness, confirm that all of the elements of the patent claims are old. Moreover, a review of the file wrapper history reveals that the combination defined by the claims was rejected as unpatentable over prior art before the Patent Office,2 including Fucci U.S. Patent No. 2,679,244, until limitations were included specifying outer shell members with "single" inner shell members, and "completely open" space between the interior surfaces of the inner and outer shells, to distinguish the claims from Fucci and other prior art. The Fucci patent discloses a structure designed as a luggage type case adapted for carrying nursing bottles and baby foods and for keeping such contents warm. It teaches inner and outer nested shells held together by an extension of the inner shell bent to form a channel to enclose and secure the edge of the outer shell, and it discloses the recessing of inner shells to form compartments to receive bottles. In Fucci the space between the interior surfaces of the outer shells and the inner shells next to them is filled with insulation. An additional inner shell or plate in one of the two hinged sections forming the case is utilized to form a...
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...from making or using the patented invention; conversely, an invalid patent cannot be infringed. See, e.g., Ever-Wear, Inc. v. Wieboldt Stores, Inc., 427 F.2d 373, 376 (7th Cir.1970). It follows, therefore, that an alleged infringer who shows that the patents asserted against him are invalid......
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