Franklin v. Masonite Corporation, 110.

• Decision Date: 31 December 1942
• Docket Number: No. 110.,110.
• Citation: Franklin v. Masonite Corporation, 132 F.2d 800 (2nd Cir. 1942)
• Parties: FRANKLIN v. MASONITE CORPORATION.
• Court: U.S. Court of Appeals — Second Circuit

132 F.2d 800 (1942)

FRANKLIN v. MASONITE CORPORATION.

No. 110.

Circuit Court of Appeals, Second Circuit.

December 31, 1942.

Before L. HAND, SWAN and CHASE, Circuit Judges.

Daniel L. Morris and Blair, Curtis & Hayward, all of New York City, for plaintiff-appellant.

George I. Haight, of Chicago, Ill., and W. R. Liberman, of New York City (Herbert H. Dyke, of Laurel, Miss., of counsel), for defendant-appellee.

L. HAND, Circuit Judge.

The plaintiff appeals from a judgment holding infringed, but invalid, the single claim of Patent No. 1,826,499, issued on October 6, 1931, to Wayne W. Blackburn. The invention is described as having as its "primary object" to provide a device "whereby the joints between laths * * * may be reinforced" so as to prevent cracks in the plaster. Secondary objects are: (1) To provide "reinforcing elements" which can be easily "handled and bundled"; (2) to hinge these "elements adjacent to the lath joints" so that they can be swung over the joints; and (3) to make the "unit" simple and cheap. The disclosure is short; it describes "an elongated metallic frame 4 to which is secured wire mesh 5 that the plaster may adhere to. * * * The frame 4 is secured to the laths along one side by staples 6 * * * which are preferably driven through the laths and clinched or bent to hinge the frame." The figures disclose only a series of parallel laths across the ends of which a rectangular — "elongated" — frame is fastened, making them into a single member; but we shall assume arguendo that the invention is equally well embodied in a single lath, near one edge of which the "frame" is so hinged that, when swung over it will span the joint between the laths. The claim reads as follows: "A lathing unit comprising an elongated frame having one side hinged to the laths of a wall construction and at one side of the opposing ends of the laths that said frame may be swung to overlie said ends of the laths, foraminous material closing the frame, and headed fasteners extending through the material and driven into certain of the laths to retain the frame in said last named position."

The defendant's supposed infringement consists of nothing more than a single broad lath, near one edge of which is hinged a wire mesh having "undulated edges" — meaning that its lateral edges are not made merely by cutting a wire mesh, but by a single sinuous wire. The defendant's laths can be shipped with the meshes turned up against their flat faces; and when one lath is set against another; the mesh can be swung across the joint between the two quite as the patented "frame" can be. But the supposed infringement has no "frame" separate from the mesh, unless the outer "undulating edges" are an equivalent. The judge held that the defendant infringed, but that the claim was invalid. We think that the claim is not infringed; but to the determination of that question some discussion of the prior art is necessary.

Before Blackburn's application was filed the art knew that cracks in the plaster were likely to occur along joints between two...