Glatt v. GC Murphy Company

• Citation: 168 F. Supp. 50
• Decision Date: 06 November 1958
• Docket Number: Civ. A. No. 9278.
• Parties: Herbert GLATT t/a Magla Products, Plaintiff, v. G. C. MURPHY COMPANY, a corporation, Defendant.
• Court: U.S. District Court — District of Maryland

168 F. Supp. 50

Herbert GLATT t/a Magla Products, Plaintiff, v. G. C. MURPHY COMPANY, a corporation, Defendant.

Civ. A. No. 9278.

United States District Court D. Maryland.

November 6, 1958.

Thomas W. Y. Clark, Baltimore, Md., Peter J. Gaylor, Elizabeth, N. J., for plaintiff.

J. Crossman Cooper, Jr., and Jacob S. New, Baltimore, Md., Harry Sommers, Newark, N. J., Irving Seidman, New York City, for defendant.

R. DORSEY WATKINS, District Judge.

Nature of the Action.

This is an action for infringement of Patent No. 2,704,730, issued to plaintiff on March 22, 1955, on an application filed on August 14, 1953, relating to "Semi-Porous Coated Cloth and Articles Made Therefrom." This was a continuation-in-part of an application filed by plaintiff on August 6, 1952, for "Semi-Porous Coated Cloth and Ironing Pad Covers Therefrom." The nominal defendant is G. C. Murphy Corporation, but the suit was admittedly defended by Mapco Corporation, successor to Modernage Aluminum Products Company, the manufacturer of the alleged infringing device. Sale by Mapco to Murphy, and notice of the alleged infringement, were also admitted.

Plaintiff alleges infringement of claims 2 and 4 of the patent, reading as follows:

"2. A ventilated cloth of improved surface smoothness and heat reflectivity comprising a sheet of closely woven textile, a thin, semi-porous, heat-reflective, solid, hard-when-dry, non-penetrating organic thermosetting resin coating applied by knife coating substantially uniformly on the top surface only thereof in an amount of about 0.3 to about 1.2 ounces of dry solids per square yard of cloth surface, deposited mainly in the interstices between the weaves of the textile but insufficiently deposited to completely fill said interstices, thereby forming small vent openings in said resin coating in said interstices.

"4. A ventilated cloth according to claim 2 in which the textile is a cotton drill suitable for ironing pad cover use, and the plastic coating comprises substantially a plastic film-forming material stable at temperatures of at least 500° F."

The alleged infringing device is an ironing pad cover. Claims 2 and 4, while obviously sufficiently broad to cover an ironing pad cover, are not limited to such a product. Plaintiff's whole case, however, has been pitched as if such limitation (found in plaintiff's patent 2,570,110, issued on October 2, 1951, on application filed June 29, 1950; and mentioned as a specific use in plaintiff's patent application of which the patent in suit is a continuation-in-part) were found in said claims. The significance of this will develop in the discussion of the prior art, and alleged prior uses.

Defenses.

The defendant, G. C. Murphy Company, denies the patent in suit was duly and legally issued; and alleges that the claims in suit are not infringed by the accused device; that the claims in suit are invalid; that the claims are invalid for the reason that such claims are based on incomplete and indefinite disclosure (contrary to Revised Statute 4888; 35 U.S.C. § 112); that such claims fail to particularly point out and distinctly claim the invention (contrary to R.S. 4888; 35 U.S.C. § 112); that the claims in issue set forth features which involve no more than an obvious use of known materials devoid of any unexpected or unobvious results; that the claims in issue set forth mathematical limitations which are without critical significance; that the said claims set forth features which would be apparent to one skilled in the art, and, therefore, do not rise to the dignity of invention; that the alleged patentee is not in fact the inventor of the subject matter set forth in the claims in issue; that the claims are anticipated by the prior art and prior use; that the claims of the patent in suit fail to incorporate the specific details alleged in the patent to be of critical significance; and that the claims of the said Letters Patent by reason of omission of critical limitations are of a scope broader than the alleged invention set forth in the patent in suit.

In this case, defendant seriously relies upon each and every of what for the most part in patent cases are largely "boiler plate" defenses.

Development of the Alleged Invention.

Ironing is never done with the goods to be ironed placed directly upon the surface of the ironing board.¹ A pad of some sort is placed upon the board, and in turn this pad is usually covered, and the material to be ironed is placed on this ironing pad cover.

According to plaintiff's testimony, in 1948 and the early part of 1949, plaintiff, a young man of twenty-one, was in a small merchandising business, including the sale of ironing pad covers (often referred to as ironing board covers). Shortly before this, covers with a pyroxylin base had been marketed, but because of their extreme fire hazard they were soon withdrawn. The covers which were most popular then consisted of cotton drill sheets which were drawn over the pad on the ironing board. Ironing of clothes was done directly on such covers. Asbestos covers containing about 20% of cotton yarn binder (to keep together the brittle asbestos fibres) also were marketed by him, as well as some plastic-coated covers which were not commercially successful. These latter covers had a reflective plastic coating and they were relatively impervious to air and water. They will be referred to herein as the "solid" type of plastic coated covers. These latter covers were initially well-received by the purchasing public, but upon use, they encountered ironing difficulties which resulted in numerous complaints which eventually required their removal from the market.

In investigating the reasons for the complaints, Glatt found that the covers were objected to mainly because they were not "heat-resistant". On the basis of this observation, he concluded that if he succeeded in obtaining a heat-resistant coating, he would have a successful commercial product. Accordingly, he proceeded to make inquiries among a large number of coating concerns for a plastic-coated fabric which would not scorch at 500° F. and which would be suitable as an ironing pad cover. Most of these coating concerns submitted samples of their current production, in use for ironing pad covers, to plaintiff which were evaluated by him. All of the samples submitted were of the so-called "solid" coated type which were relatively water and gas impervious and which showed very little, if any, light transmission when put in front of a light.

By the fall of 1949, Glatt selected the coated fabric of Gordon-Lacey Chemical Company as the one offering most promise and he introduced it on the market as his "Magla Silver" ironing pad cover. This cloth was coated on one side with an impervious thermosetting plastic coating containing a reflective pigment. The cover was accompanied by a circular prepared by plaintiff which advertised as one of its features, the fact that it "will not allow moisture to penetrate through." At that time, plaintiff believed that this property was advantageous.

Initially, sales of this product were good and a number of competitors began selling similar items. Being waterresistant, the cloth also had other uses, such as for tents and tarpaulins. Then, complaints began to come in, the chief one being that the iron stuck or "dragged" when it was slid on the surface during ironing. A sample of the cover was sent to United States Testing Company, and their report of October 13, 1949 confirmed the drag effect on the iron and also noted that the cover did not absorb water, which contributed to the slowing down of drying time of the samples ironed. Anderson of United States Testing Company (which is not a research concern) stated that, at that time, he did not connect the "drag" effect with this property since the iron appeared to stick even in the dry areas, and Glatt similarly testified, stating that he was concerned more with the fact that the plastic surface did not appear to be heatresistant and that the drag was due to softening or to the soft nature of the coating.²

Plaintiff and his competitors undertook to improve the covers. At first, plaintiff, still feeling that the fault was with the coating which was not slippery enough, tried to treat the plastic surface with some material which would reduce the friction of the iron. He noted an article in the "Wall Street Journal" on a high-melting grease which led him to the idea that the application of such a material onto the plastic surface might solve his problem. He was in touch with various manufacturers of such materials and, for a while in 1950, he melted a product known as "Castorwax" into bars which the girls rubbed over the surface of the covers prior to shipment. This treatment appeared to be effective for a short time, but the effectiveness wore off and the drag became as pronounced as before. Those covers which were coated with reflective resin were found to be particularly bad with respect to this trouble of drag.

Thereafter, plaintiff, after studying the "wetting out" effect encountered with ordinary cotton covers, thought that perhaps liquid water was causing the drag rather than the instability of the plastic surface. This led him to the idea of perforating the solid type of coating to vent the water. At first he tried poking a needle numerous times through the coating, but obtained no benefit therefrom. Then, he found out that a John W. Meaker had developed an electronic sparking method for puncturing small holes through sheets, and arranged with Meaker to perforate samples of his solid-coated cloth, but these, although they showed some pin points when viewed in front of a light, proved ineffective in reducing drag. Finally, he decided to make larger holes by means of a nail punch, and found that the drag effect was reduced by such means. Thereafter, he contacted perforating concerns, and eventually arranged with one of them to perforate his cloth with...