Flexlume Sign Co., Inc. v. Opalite Sign Co.

• Decision Date: 30 March 1923
• Docket Number: 3032.,3031
• Citation: 292 F. 98
• Parties: FLEXLUME SIGN CO., Inc., v. OPALITE SIGN CO. SAME v. MID-CITY ELECTRICAL SERVICE CO.
• Court: U.S. Court of Appeals — Seventh Circuit

292 F. 98

FLEXLUME SIGN CO., Inc., v. OPALITE SIGN CO.

SAME v. MID-CITY ELECTRICAL SERVICE CO.

Nos. 3031, 3032.

United States Court of Appeals, Seventh Circuit.

March 30, 1923

Rehearing Denied September 18, 1923.

Russell Wiles, of Chicago, Ill., for appellees.

Before BAKER, EVANS, and PAGE, Circuit Judges.

EVAN A EVANS, Circuit Judge.

Appellant instituted two suits to restrain the infringement of certain patents and to recover damages for unfair competition. It also sought to restrain the infringement of its trade-mark 'Oplex.' The two suits, though separate, were tried together in the District Court; both defenses being conducted by the Opalite Sign Company. We will dispose of both in one opinion.

The infringement of three patents was charged in the complaint but only two are here urged, No. 1,146,910 and No. 1,224,253 both to Wiley and Hough. The former is a process patent, while the latter covers a product. Both patents were held invalid by the District Judge, who also found the process patent was not infringed.

The combination patent covers a double-faced sign, usable day or night, and susceptible of illumination. As illumination is almost universally by electricity, patentee sought to reduce the consumption of electrical current, to lessen the cost of lamp maintenance, and to provide the maximum amount of attraction. The patentee sets forth his purpose and object in the following language:

'This invention has reference to illuminated signs, and its object is to provide a sign structure with light-transmitting characters, wherein the characters, which may be of peculiar construction, are efficiently mounted and are so related to the light-giving elements of the signs that the efficiency of illumination is materially increased.

'The present invention is particularly adapted to that kind of illuminated sign known as a double-face sign, and the light-giving units are arranged in most part so as to be hidden from direct view through the sign character strokes, while advantage is taken of the reflecting qualities of the inner faces of the character or characters on one face of the sign to increase the illumination of the strokes of the character or characters on the other face of the sign, whereby there is obtained increased illumination, even distribution of illumination, and uniformity of illumination; glare spots being to a commensurate extent avoided.

'The signs of the present invention have the sign characters produced on plates of opal or milk glass, with the character strokes in relief; the glass employed having a particularly brilliant reflecting surface. It will be understood, however, that any light-transmitting material other than glass, but having characteristics whereby the effects produced by the present invention are obtained, may be employed.'

The claims divide themselves into two classes; the controversy over the broader claims, of course, being more important. Claims 8, 9, and 10, the narrower ones, are of little importance, if the broader claims are sustained. This patent illustrates the difficulty of an easy solution of any patent case where the patent solicitor, in his anxiety to protect anything and everything, covers every conceivable structure that embodies the inventor's product.

We will direct our attention chiefly to the broader claims, and will not take up individually and in detail each and every one of the narrower claims. Claim 7 is descriptive, and may be divided into its seven elements:

'Claim 7. A double-face sign having (1) sign characters on opposite sides, (2) each formed of a plate of opal or milk glass, with (3) sign characters in relief on one face thereof, and with (4) the other face constituting a reflector of light; (5) each sign character having its exterior, except where provided with character strokes, covered with opaque material; and (6) light emitting units within the sign, situated with respect to the character strokes to direct light therethrough, and to direct light upon the reflecting surfaces of each plate, for the reflection of such light by said plate across the sign to the opposite side thereof, and through the character strokes there located, whereby the direct illumination from the light units is reinforced by the light reflected from the plates; (7) said places being of a density and light diffusive character to prevent concentration of the direct light of the light-giving units, when the latter are directly viewed through the character strokes.'

This is a combination claim, and the argument was illuminated by demonstrations of the apparatus, and results flowing therefrom have cleared the case of some of its doubt. That patentee succeeded in attaining certain desired results was satisfactorily demonstrated. Speaking of the individual elements, it is urged:

(1) 'Sign characters on opposite sides,' provide for a double-faced sign.

(2) Each character is 'formed of a plate of opal or milk glass. ' The character is a separate plate, which, it is claimed, is advantageous, in that it reduces the cost of replacement, and makes possible a larger and more available stock. It also makes possible the easy substitution of letters of varying sizes. The plate is made of opal or milk glass, for which quality special virtues are claimed, because 'the color characteristic of opal or milk glass is a component or constituent of the glass itself.'

(3) 'Sign characters in relief on one face thereof. ' Some advance in the art is claimed, because of the use of a relief letter formed of opal or milk glass; it being asserted that the raised side letter gives increased legibility and the combination is particularly valuable for day and night service.

(4) 'The other face, constituting a reflector of light,' suggests its own possible value, and the utilization of the material which form the letters themselves for reflecting purposes is unique.

(5) The utilization of the fifth element is to more boldly bring out the letters, but leaves the interior an unimpaired reflecting surface.

(6) Element 6 is, of course, essential to the successful utilization of the other elements.

(7) Element 7 prevents the electric lights being seen through the plate, and gives a more...