Illinois Tool Works, Inc. v. Brunsing
| Decision Date | 23 February 1968 |
| Docket Number | No. 22147.,22147. |
| Citation | 389 F.2d 38 |
| Parties | ILLINOIS TOOL WORKS, INC., a Delaware corporation, Appellant, v. Rex L. BRUNSING, an individual, Brunsing & Sons, Inc., a Nevada corporation, and Tay-Pak Corporation, a Nevada corporation, Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Carl Hoppe, Ernest M. Anderson, San Francisco, Cal., Richard R. Trexler, Chicago, Ill., for appellant.
Louis F. Hawkins, San Rafael, Cal., for appellees.
Before HAMLEY, HAMLIN and DUNIWAY, Circuit Judges.
Two suits for patent infringement, brought by Illinois Tool Works, Inc. (Illinois Tool) against Rex L. Brunsing, Brunsing & Sons, Inc., and Tay-Pak Corporation, were consolidated for trial and appeal under the above heading. The patents in question are Holmberg Patent No. 2,646,911, issued July 28, 1953, and Poupitch Patent No. 2,923,406, issued on February 2, 1960. The patents, and the accused device, pertain to the packaging, in "six-packs" of conventional tin cans of food and beverages. Judgment was entered for defendants and plaintiffs appeal.1
Plaintiffs claimed that defendants made, used and sold devices that infringe on claims 1, 2, 4, 5, 7, 8, 9, 10, 11, 12 and 13 of the Holmberg patent, and claims 1 and 2 of the Poupitch patent. Issue was drawn on this contention and the trial court made detailed findings supporting defendants' position. The findings of fact and conclusions of law of the trial court are reported in 254 F.Supp. 281, and the discussion which follows assumes familiarity with those findings and conclusions.
In its findings the trial court noted a number of differences between the claimed structures of the Holmberg patent and the accused device. Some of these differences, the court found, brought about substantially different results than were contemplated and achieved by the Holmberg patent.
According to the findings: Under Holmberg cans may be inserted or removed from the carrier only while they are at an intermediate angle to the carrier, while, in the accused device, the cans may be inserted vertically and may be removed by tipping the can upwardly at right angles to the clip, or horizontally; under Holmberg the carrier can be grasped only by means of a handle which permits the carrier to swing freely, while in the accused device, finger holes may be used as a means of grasping the carrier; and under Holmberg the cans will disengage from the carrier if the latter is tilted, whereas, in the accused device, the cans remain firmly attached to the carrier without regard to the angle at which the carrier is held.
The court found that the structural differences between the Poupitch patent and the accused device are at least as marked as in the...
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