L. McBrine Co. v. Silverman, 9693.
| Decision Date | 18 July 1941 |
| Docket Number | No. 9693.,9693. |
| Parties | L. McBRINE CO., Limited, v. SILVERMAN et al. SAME v. KOCH et al. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Hackley & Hursh, of San Francisco, Cal., and Morsell, Lieber & Morsell, of Milwaukee, Wis., for appellant.
George B. White and J. E. Trabucco, both of San Francisco, Cal., and Leverett C. Wheeler, of Milwaukee, Wis., for appellees.
Before DENMAN, MATHEWS, and HEALY, Circuit Judges.
These are consolidated appeals from judgments dismissing actions for infringement of claims 4, 8, 10, 11, 12, 19, 23, 24, 26 and 27 of patent No. 1,878,989.1 Both actions were brought by appellant, the L. McBrine Company, Limited. One was against Sol Silverman and Sam Silverman, the other against Herman Koch, Harold M. Koch, William L. Koch and Rebecca Koch. Defenses in each action were that the claims were invalid and that, if valid, they were not infringed. The court below held the claims invalid and dismissed the actions on that ground.
The patent was applied for by Emanuel J. Shoemaker on December 24, 1928, and was issued to appellant (Shoemaker's assignee) on September 20, 1932. The specification states: "This invention relates to hand luggage and more particularly to a means for packing garments so that they may be supported in upright position relative to the common manner in which luggage of this nature is carried." Luggage (a suitcase) embodying the claimed invention is described in the specification and illustrated in the accompanying drawings. It comprises:
1. A body portion having four side walls.
2. A cover portion having four side walls, one of which is hingedly connected to the corresponding side wall of the body portion. In the specification these side walls are called sides.
3. A garment supporting member. This is an H-shaped frame, of which one side (one leg of the H) is hingedly connected to the hinged side wall of the cover portion. In the specification the hinged side wall of the cover portion is called its hinged side.
4. A hanger rod over which garments may be folded, such garments being further folded, if further folding be required, over the free (unhinged) side of the garment supporting member. The hanger rod is removably carried by the supporting member's hinged side.
Each of the claims in suit is for luggage comprising, inter alia, a garment supporting member. This the claims variously describe as "a garment supporting member hingedly connected to the hinged side of said cover portion" (claims 4, 8, 11, 19); "a garment supporting member carried by the hinged side of said cover portion" (claim 10); "a garment supporting member supported on the hinged side of said cover portion" (claim 12); "a garment supporting member hingedly mounted in said cover portion and on the hinged side thereof" (claim 23); "a garment supporting member hingedly carried by the hinged side of said cover portion" (claim 24); "a garment supporting member, one side of which is hingedly connected to one side of said cover and the other side adapted to swing to a position adjacent to the other side of said cover" (claims 26, 27). When the claims are read, as they must be, in the light of the specification and accompanying drawings, it is clear that, as used therein, the term "hinged side of said cover portion" means the hinged side wall thereof, "one side of said cover" means one side wall thereof, and "the other side of said cover" means the opposite side wall.
The evidence establishes that the Kochs have manufactured, sold and used luggage an exemplar of which is in evidence as exhibit 7, and that the Silvermans have manufactured, sold and used luggage an exemplar of which is in evidence as exhibit 8. Other than this, there is no evidence that any of the claims in suit has been infringed by appellees (the Kochs and Silvermans) or any of them.
Each exhibit comprises, inter alia, a garment supporting member. This, however, is not a garment...
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