Harvey v. Levine
| Decision Date | 13 February 1962 |
| Docket Number | No. 35255.,35255. |
| Citation | 204 F. Supp. 947 |
| Parties | William H. HARVEY et al., Plaintiffs, v. Roy LEVINE et al., Defendants. |
| Court | U.S. District Court — Northern District of Ohio |
George Knowles, Fred J. Samerdyke, Bosworth, Sessions, Herrstron & Knowles, Cleveland, Ohio, for plaintiff.
William C. McCoy, Sr., William C. McCoy, Jr., McCoy, Green & TeGrotenhuis, Edward J. Schweid, Cleveland, Ohio, for defendant.
Plaintiff, Paul E. Thies, of Nebraska, is the patentee.1 Prior to 1953 Thies had been a journeyman plumber, a master plumber and proprietor of a plumbing, heating and electrical contracting business. He also had experience as a salesman for The Capital Supply Company, of Lincoln, Nebraska. Plaintiff William Harvey is the exclusive licensee for the United States of the Thies patent, with the right to grant sublicenses and to participate in infringement actions. Harvey also had experience as a journeyman and master plumber, and was in the plumbing contracting business in Omaha, Nebraska prior to 1945, at which time he pioneered in the development and sale of wax ring sealing gaskets for toilet bowls. In 1959 The Wm. H. Harvey Company, a corporation, was organized. A sub-license under the Thies patent was granted to the corporation, which continued the manufacture and sale of the device described in the patent in suit. By stipulation and order following a pretrial conference, the corporation was made a party plaintiff. Defendants, Roy Levine and Henry Feniger, as partners, were engaged in selling, among other things, sealing gaskets. The partnership did business under the name of Beacon Manufacturing Company, The Wax Products Company, and other fictitious names. In July 1959 The Beacon Manufacturing Company, a corporation was organized, and in February 1960 Levine and Feniger transferred some, if not all, of their partnership assets and business to the corporation. The corporation continued in the manufacture and sale of the accused sleeve gaskets. By stipulation of the parties and order of the court this corporation was made a party defendant. Plaintiffs seek an accounting, damages, injunctive relief and costs. Defendants deny the validity of the patent and, if the patent be held valid, they deny infringement. Defendants also assert the defense of plaintiffs' alleged misuse of the patent.
"Another important object of the invention is to provide an improved gasket for sealing the connection between a toilet bowl and a drain or soil pipe below the bowl in which the gasket is adapted to be installed by the average artisan." (Pat.Col. 1, lines 59-64.)
Other objects of the invention appear in the Specifications.
The patent covers the combination of two elements, viz. a ring gasket of wax, sponge rubber or other similar material and a depending sleeve extending downwardly from the inner surface of the ring. Both of the above elements are old in the art. The ring gasket of the patented device is made of wax. Ring wax gaskets have been in use in this country since they were first made and sold by plaintiff, William H. Harvey, in 1945. The patent does not specify any particular material for the sleeve, and until January 1956 Thies manufactured and installed a lead sleeve in the patented device. Thereafter he made a sleeve of molded polyethylene and has continued to use sleeves made of this plastic material. The accused device also has a wax ring gasket and a polyethylene sleeve. These plastic sleeves, being much lighter in weight than those of lead, have many advantages not possessed by the latter, including lesser cost of material and lower freight charges. The prior art references submitted by defendant consist of the LeTarte patent No. 2,082,348, Freedlander No. 2,153,664 and Douglas No 1, 358,714. LeTarte provides for a seal consisting only of a sponge rubber ring gasket, no reference being made to a sleeve. Obviously that reference does not anticipate nor does Freedlander, which relates to a gasket and strainer, the latter being a cup-shaped screen member of metal work. Freedlander is in a remote art described by plaintiffs' expert as "Class 210 Liquid Purification or Separation, Sub-class 164, in a Pipe Line." Douglas is the best of defendants' references. Mr. Sessions, defendants' expert, considered this reference to be pertinent because "It shows a sleeve extending downwardly from a short horn toilet bowl." Sessions conceded, however, that Douglas disclosed no sealing gasket between the sleeve or flange (14) and the toilet bowl. He also conceded that four leakage paths were shown in the reference. Sessions expressed the opinion that after the advent of the wax ring it would be apparent that the use of the wax rings in Douglas would provide an effective seal. He acknowledged, however, that there was no disclosure in Douglas that taught or suggested the placing of any sealing material between the sleeve or flange (14) and the toilet bowl or between the trough and the upper end of the lead bend. Douglas includes a water seal and a seal of mercury deposited on top of the water. Douglas does not anticipate the patent in suit. Defendants also cite and rely upon Auer No. 1,333,368, which was cited by the Patent Office against the Thies application. Defendants complain specifically that the Patent Office did not give Auer "proper consideration." There is no evidence supporting such contention. On the contrary, it appears affirmatively that adequate consideration was given to this reference during the prosecution of the Thies application. Defendants' real contention seems to be that the Patent Office was mistaken in its evaluation of Auer, vis-a-vis, the Thies application. As is well known, a grant carries with it a presumption that the patent is valid. This presumption rests upon the recognized expertise of the Patent Office and its duty to protect the public from unmerited monopolies. Williams Mfg. Co. v. United Shoe Mach. Corp., 121 F.2d 273, 277 (6th Cir.), aff'd. 316 U.S. 364, 62 S.Ct. 1179, 86 L.Ed. 1537; Gibson-Stewart Co., Inc. v. William Brothers Boiler & Mfg. Co., 6 Cir., 264 F.2d 776. Of course the presumption of validity is not conclusive and may be overcome by evidence demonstrating error in the Patent Office's determination that the cited prior art did not anticipate. Auer shows a separate sleeve at the bottom of the toilet bowl horn with a flange sandwiched between two separate pliable sealing rings clamped between the toilet bowl and the floor and is patentably distinguishable from the patent in suit.
No single reference anticipates the patent in suit but, as was said in Allied Wheel Products v. Rude, 6 Cir., 206 F.2d 752, 760: "To anticipate an invention is to negative novelty; but even though a patent is not anticipated, and is concededly novel, it may lack invention." In considering whether the patented device amounts to invention or is the result of mechanical skill the entire pertinent art must be taken into account. The desirability and need of a tightly sealed connection between a toilet bowl and a soil pipe thereunder has long been recognized. Such recognition has been evidenced in the patents mentioned above. There is no showing, however, that either of the devices covered by the prior art patents of Auer and Douglas were used commercially. It is impossible, therefore, to determine whether they failed or succeeded in meeting the need. From time to time unpatented means, such as the use of seals made of plaster, putty and other materials, were adopted with varying degrees of success. The introduction of the wax ring gasket in 1945 marked the advent of the most effective and successful seal in the art to that time. The wax ring gasket met with great success throughout the country. Witnesses for the defendants testified that the seal effected by such a gasket is as efficient as a seal made pursuant to the teaching of the patent in suit. An object of the patent in suit is to provide an improved sealing gasket "* * * of simple and economical construction." Without conceding that such object has been achieved, defendants contend that any advance in the art due to the Thies patented device is the result solely of mechanical skill. It is a familiar rule that if an applicant with the prior art before him could make the patented structure without the exercise of the inventive faculty, the patent is invalid. Sec. 103, T. 35, U.S.C.A., which defines the test of obviousness, 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 said subject matter pertains."
The subject matter of the Thies patent is described in Claim No. 1 of the patent as follows:
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Harvey v. Levine
...purposes we believe it is sufficient to refer to this discussion and ruling by the District Judge, which is reported at Harvey v. Levine, D.C., 204 F.Supp. 947, without repeating it As stated in Allied Wheel Products v. Rude, 206 F.2d 752, 760, C.A.6th, and in Aluminum Company of America v.......
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