Falkenberg v. Golding

• Decision Date: 26 March 1952
• Docket Number: No. 10482.,10482.
• Citation: 195 F.2d 482
• Parties: FALKENBERG v. GOLDING et al.
• Court: U.S. Court of Appeals — Seventh Circuit

195 F.2d 482 (1952)

FALKENBERG v. GOLDING et al.

No. 10482.

United States Court of Appeals Seventh Circuit.

March 26, 1952.

Max W. Zabel, Edward U. Dithmar, Albert I. Kegan, Samuel W. Kipnis, all of Chicago, Ill., for appellant.

Albert R. Teare, George W. Saywell, Cleveland, Ohio, Arthur A. Olson, Chicago, Ill., Bates, Teare & McBean, Cleveland, Ohio, Thiess, Olson & Mecklenburger, Chicago, Ill., for plaintiff-appellee.

Before KERNER, LINDLEY and SWAIM, Circuit Judges.

LINDLEY, Circuit Judge.

Plaintiff's suit charging defendants with infringement of Claims 14 and 15 of his Patent No. 2,409,425 for "Drapery Mounting," issued October 15, 1946, having resulted in a judgment decreeing the claims valid and infringed, defendants appeal. In Falkenberg v. Bernard Edward Co., 7 Cir., 175 F.2d 427, we held the claims valid and infringed by the device of the defendant then before the court. A full explanation of the details and nature of the patent is included in our opinion in that case.

The defendants seeking reversal here urge, that, in view of certain prior art not included in the record in the prior case, the patent should now be held invalid. This determination, defendants suggest, should be made in the public interest. They contend further that if we do not find it necessary to reconsider the question of validity, we should, in the light of the newly cited prior art and the limitations imposed by the patentee himself upon his claims in the proceedings before the Patent Office, find the invention to be so narrow as to exclude any similar device, unless it includes the specific elements of Falkenberg, and, that when the claims are properly so limited, the accused devices are far removed from the patented device and, therefore, do not infringe. Obviously our determination of infringement in the prior case is no adjudication of that issue as related to defendants' devices. Furthermore, irrespective of whether we consider anew the question of validity, it is, we think, requisite that we examine into and establish the proper scope to be given the invention and determine whether, when that range has been properly defined, defendants' devices are within it.

In his application, plaintiff stated that his "drapery mounting" is a "hanger" which provides means whereby an inexperienced person can conveniently hang on windows or doors draperies or valances and secure a tailored ornamental effect usually achievable only by those possessing professional skill. Each of these hangers, the patentee prescribes, must be affixed to a bracket provided at the two upper corners of a window. From the brackets he suspends the hangers, inclining them in an angular direction toward each other and toward the center of the window, at an angle of 30 to 45 degrees from horizontal. The claims, we think, are limited, so far as inventive character is involved, to the hanger and the specific form in which it is built. Windows, brackets, draperies and the art of hanging draperies so that they will make graceful sweeps or cascades are all old. As his specifications indicate, what plaintiff was providing was a hanger attached to an old bracket and so constructed as to support the draperies and permit their facile manual graceful arrangement. To determine just what he did in this respect requires further inquiry.

Claim 1, not in issue, defines the hanger simply thus: "A drapery mounting comprising a body member having spaced slots intersecting an edge thereof, and pockets formed in the body into which the slots open." Claims 14 and 15 are more specific. In each the patentee disclosed a pair of hangers secured to brackets and inclined toward each other from opposite upper corners of the window. In Claim 14 the hanger is described as a body "having a succession of spaced slots intersecting the periphery thereof and forming passages for successively folded portions of the drapery material, the body being further formed with chambers which are continuations of the respective slots and provide for adjustable takeup of the drapery material, the body being formed with an extension serving to support the material exteriorly of the body proper." Claim 15 is essentially the same; instead of pockets, it speaks of chambers, but, as used in the two claims, the two words mean the same. Thus the patented device includes a body, i. e., a rectangular piece of wood, metal or plastic material, along the upper edge of which are spaced slots which constitute passages into pockets or chambers within the hanger, permitting the folds of the draperies to be inserted manually in and through the slots into the pockets. Thus, when the drapery extends horizontally across the top of the window and then vertically down either side from the hangers, its folds are gathered into the various slots and pockets on either side, and form, at the top, a "sweep" and at the window's sides, "cascades." Throughout his patent plaintiff speaks of the hanger as consisting of a body, slots and pockets. He suggests no other device.

In the proceedings before the Patent Office certain claims were rejected. Invalidity was suggested on Harper, as "the old combination of a valance device and a window frame or support therefor." There were rejections also because of Berglund No. 1,746,577. Protesting, the applicant urged that Berglund discloses a bracket, preferably a metal strap, possessing resiliency "bent into a formation somewhat simulating the slot and pocket areas formed in the body member of applicant's mounting," but "no structure in which slots or pockets are formed." Berglund's strap, said Falkenberg, is bent in loops so as to form a series of spaced pockets, each one of the series being relatively adjustable, by reason of the elasticity of the strap, to form spaces which serve as entrances through which "to pass the fabric into the other series of pockets and then the separated strap portions clasp and hold the fabric when the strap is relieved." He said that "by reason of these distinctions, the Berglund disclosure forms no adequate...