Kirsch Mfg. Co. v. Gould Mersereau Co.
| Decision Date | 02 March 1925 |
| Docket Number | No. 219.,219. |
| Citation | 6 F.2d 793 |
| Parties | KIRSCH MFG. CO. v. GOULD MERSEREAU CO., Inc. |
| Court | U.S. Court of Appeals — Second Circuit |
Dyrenforth, Lee, Chritton & Wiles, of Chicago, Ill., and Briesen & Schrenk, of New York City (John H. Lee and Wm. H. Dyrenforth, both of Chicago, Ill., and Hans Briesen, of New York City, of counsel), for appellant.
Williams & Pritchard, of New York City (Wm. S. Pritchard, of New York City, of counsel), for appellee.
Before HOUGH, MANTON, and HAND, Circuit Judges.
This appeal arises on the usual suit in equity upon a patent issued to C. W. Kirsch on September 18, 1917 (No. 1,240,582). It involves only claim 7, which reads as follows:
"A sectional curtain rod, comprising two similar tubular end members, one thereof of a size to be telescopically received within the other, and a coupling member interposed between the two end members fitting telescopically within the larger of said end members at one end, and fitting telescopically upon the other end member at its other end."
There had for some years been curtain rods circular in section made in several parts which telescoped: Muehlebach, 668,923, February 26, 1901; Blake, 935,885, October 5, 1909. But Kirsch's invention was not of that kind. He depended for the rigidity of his rod upon flat strips of metal, rounded over at each edge to form grooves, and set up with the flat sides vertical. Lazear, 847,344, seems to have been the first, October 27, 1906, to apply for a flat strip rod in two sections; but these had no rounded edges, and the pieces, being held together by clamps, did not telescope at all. So far as appears, Kirsch was the first to disclose truly telescoping sections of the kind here in question, which he did in his application of December 8, 1906, which resulted on April 9, 1907, in his first patent, 850,089. This rod was in two curved end sections, one of which obviously had to be smaller than the other, so as to be able to be inserted within it. An alternative form was, however, shown; the two curved end pieces being of equal size, united by an intermediate and straight coupler large enough to fit over the ends of each.
The two end pieces permitted of adjustability within the length of the two single members, but were not sufficient when the window was too wide. His alternative form could be used in that case; but, as we have said, it required end pieces of the same size. It proved convenient to pack together end pieces which would normally telescope, and, in order to use the alternative form of the first disclosure, it was therefore necessary to break two packages and take the smaller parts from each, using a larger intermediate part as a coupler. This was a serious inconvenience, and after the end of about six years, on September 23, 1912, Kirsch applied for a second patent, which issued on June 8, 1915 (No. 1,142,438), in which he disclosed a modification of his original invention.
One feature of this disclosure, perhaps the principal, was certain elliptical disks which would lock the ends of the telescoped members in position after they had been adjusted (page 1, lines 17 and 18, of the specifications); but the disclosure was of two straight pieces of different size, one of which would slip over the end of one end piece, and the other within the other end piece. The figures represent these two coupling pieces as united into one by the fixing disks, and both claims are for "a certain rod including a pair of channel-shaped members," such that one is slipped within the other and held fast by the disks. The second patent must therefore be regarded as disclosing a single coupler with ends of different sizes, adapted to be used with the usual end pieces, and not requiring the breaking of a package and reassortment between packages. It does not, however, appear that in practice the two...
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