Frohock-Stewart, Inc. v. REED-CROMEX CORPORATION
| Decision Date | 21 February 1966 |
| Docket Number | Civ. A. No. C 64-475. |
| Citation | 254 F. Supp. 120 |
| Parties | FROHOCK-STEWART, INC., Plaintiff, v. REED-CROMEX CORPORATION, Defendant. |
| Court | U.S. District Court — Northern District of Ohio |
J. H. Slough, of Slough & Slough, Cleveland, Ohio, and I. Stephen Samuels, of Russell, Chittick & Pfund, Boston, Mass., for plaintiff.
William Isler, of Isler & Ornstein, Albert R. Teare, of Teare, Teare & Sammon, Cleveland, Ohio, for defendant.
This case involves questions concerning the validity and infringement of the John J. Hussey Patent No. 2,940,085, which has been assigned to Frohock-Stewart, Inc., plaintiff herein. The patent in suit covers a bathtub safety rail, which is adapted to be mounted over the rim of a bathtub to give a secure hand hold for safety entering and getting out of the bathtub and to assist the user in sitting down and rising up in the tub.
The evidence indicated that in late 1957 John J. Hussey, who is President of the plaintiff corporation, developed a bathtub safety rail which he believed to be superior to all other such devices then on the market. In his testimony Mr. Hussey stated that prior to making his invention he had surveyed the bathtub safety rails then on the market, and believed that they were deficient in that they had clamp attachments which protruded from the side of the tub and/or lacked resistance to heavy pressure thereon. On November 28, 1958 he filed his claim for a patent on his improved rail and the patent issued on June 14, 1960.
John Hussey's invention includes a horizontal rod-like hand grip rail which is down turned at its ends, with each end of the hand grip attached to a mounting bracket. The patent indicates that the mounting brackets have an inverted U-shaped clamp, each clamp made up in two members, with a horizontal fastener to draw the clamp arms together in order to secure the hand grip to the wall of the bathtub. The arms or extensions to the clamp overlap and telescope into one another, the underlying extension being bent downward and then horizontally reversed, forming a parallel spaced member which makes a broad surface contact with the rim of the tub. The two arms are drawn together by a fastener passing through the overlying arm and through the downward portion of the underlying arm. In the patented device the fastener which draws the two arms of the clamp together is attached to a nut.
The down turned ends of the hand rail are attached to the clamp by means of a fastener which is used for adjustment purposes, which protrudes through a slot in the underlying arm of the clamp.
The Hussey rail has no protrusions on either side which could present a hazard to the user thereof.
The evidence indicated that after the Hussey safety rail was introduced to the market in June of 1958 it met with great commercial success.
In January of 1963 the defendant placed on the market a bathtub safety rail. One of the said rails was introduced as an exhibit and appears to be an exact duplicate of the rail shown in the patent in suit. In February, 1963 plaintiff notified the defendant of the patent and demanded that it cease and desist from infringing same. Following receipt of the letter from plaintiff the defendant made a minor design change in its rail by threading the aperture in the down turned bracket portion to which the fastener was attached, thereby eliminating the use of the nut. Defendant has continued to manufacture and market that rail, which is the accused product herein.
It is the basic claim of the defendant that the plaintiff's patent is invalid. Defendant also contends that the change made in its safety rail, by eliminating the nut to fasten the two parts of the clamp, takes its product out of the reach of the patent claim, in the event it is determined that the patent is valid.
The defendant argues that the patent in suit covers an old and exhausted combination of elements consisting of (a) a pair of spaced brackets for spaced disposition on the rim of the bathtub, (b) a rod-like hand grip located and supported on said brackets, (c) means to detachably connect the hand grip at each end to one of said brackets, and (d) means for adjustably securing the arms of the brackets to the wall of the bathtub. It is defendant's claim that the old and exhausted combination of elements is shown in the following patents:1
1,061,328 Sandberg May 13, 1913
1,543,393 Knott June 23, 1925
2,034,705 Anderson March 24, 1936
2,045,815 Wiesjahn June 30, 1936
2,678,791 McPhaden May 18, 1954
2,756,439 Bollen July 31, 1956
2,807,029 Armstrong Sept. 24, 1957
Defendant contends that these patents contain disclosures which anticipate the Hussey patent.
It is the defendant's position that any invention on the part of Mr. Hussey is found only in the clamping mechanism, and does not extend to the combination of the brackets and the safety rail, which is the subject of the patent claim. Defendant argues that improvement of one part of an old combination gives no right to claim that improvement in combination with other old parts which perform no new function in the combination, citing Lincoln Engineering Co. of Illinois v. Stewart-Warner Co., 303 U.S. 545, 58 S.Ct. 662, 82 L.Ed. 1008 (1938) and Timkin-Detroit Axel Co. v. Cleveland Steel Products Corp., 148 F.2d 267 (CA6, 1945).
The defendant further contends that the patent in suit is invalid under § 103 of the United States Code, Title 35, which provides that a patent may not be obtained if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which such subject matter pertains. It is the claim of the defendant that a person of ordinary skill in this art, with knowledge of the prior art patents to which reference has been made above, could have devised the invention which is the subject of the claim of the patent in suit.
On the other hand, plaintiff contends that its patent has elements which are new and greatly improved over the prior art. It is the position of the plaintiff that the Hussey patent reflects a non-obvious invention of a new bathtub safety rail construction, not previously shown nor suggested by the prior art. It is the claim of plaintiff that by reason of the interaction of its clamping device with the rail proper the rail is caused to be mounted on the bathtub in a completely secure fashion and remains stable regardless of the pressure or weight placed against the rail; that it will withstand downward pressure or lateral pressure; that its rail unit is compact and free from ungainly projections; that the mechanics of mounting the rail are extremely simple and can be installed by the average user, and that the rail is capable of being installed or used without scratching or marring the tub to which it is fastened.
The Court, in considering the Hussey patent and in reviewing the prior art references submitted by the defendant, is of the opinion that the most pertinent references relied upon by the defendant were cited as references in the file of the Hussey patent by...
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