Park-In-Theatres v. Perkins

• Decision Date: 22 June 1951
• Docket Number: No. 12627.,12627.
• Citation: 190 F.2d 137
• Parties: PARK-IN-THEATRES, Inc. v. PERKINS et al.
• Court: U.S. Court of Appeals — Ninth Circuit

190 F.2d 137 (1951)

PARK-IN-THEATRES, Inc. v. PERKINS et al.

No. 12627.

United States Court of Appeals, Ninth Circuit.

June 22, 1951.

Reginald E. Caughey, Lyon & Lyon, all of Los Angeles, Cal., Leonard L. Kalish, Philadelphia, Pa., for appellant.

C. A. Miketta, Los Angeles, Cal., (Johnson & Ladenberger, Robert G. Johnson, Don A. Ladenberger, all of Los Angeles, Cal., of counsel), for appellees.

Before DENMAN, Chief Judge, and ORR and HASTIE,¹ Circuit Judges.

HASTIE, Circuit Judge.

The matter in question here is the validity of a patent on a drive-in theatre. United States Letters Patent No. 1,909,537 was issued on May 16, 1933 to R. M. Hollingshead, Jr. It was subsequently assigned to plaintiff, Park-In Theatres, a New Jersey corporation which brought this suit against two individual and two corporate defendants, all citizens of California, charging infringement of certain claims of the patent and praying for damages and an injunction. On defendants' motion for summary judgment, the district court held the patent claims invalid, and entered judgment for the defendants. It also awarded them attorney's fees.

The district court held that the patent claims in suit were invalid and void for lack of invention. There were additional grounds of decision but in our view it is not necessary to consider them.²

Preliminarily, although there is no dispute as to the text of the Letters Patent, it has been pointed out by plaintiff, appellant on this appeal, that it does not now appear that the document itself was formally introduced into the record in the district court. Aside from the anomaly of such argument from the party suing on the patent, we note that appellant's own complaint states that the "patent is hereby proffered".³ And in its formal objections to certain proposed findings of fact which appear in the record appellant averred "that the claims in issue are in the patent and before the court". Repeated references to particular language of the patent in the proceedings and filings in the district court lend support to the contention made at bar by the appellees that the patent in formal text was introduced into the record and examined and relied upon by the district court although, in some manner not apparent, the document subsequently became separated from the record. The entire course of the proceedings in the district court is consistent only with the conclusion that the patent was before the court. Therefore, rather than to require some formal correction or supplementation of the record at this time, we treat the text of the patent as having been before the district court and consider it on this appeal as it plainly was considered below.

The patent has twenty-one claims. Plaintiff's suit alleges infringement of eight of them.⁴ Quotation of three of these will supply a sufficient basis for discussion of considerations common to all of the claims in controversy.

Claim 4 reads: "4. An outdoor theater comprising a stage, alternate rows of curvilinear automobile drive-ways and curvilinear and vertically inclined automobile stall-ways arranged in front of the stage, said stall-ways being adapted to receive automobiles disposed adjacent to each other and facing the stage; — said automobile stall-ways being at a vertical angle with respect to the stage such as will produce a clear angle of vision from the seat of the automobile, through the windshield thereof to the stage, free of obstruction from the automobiles ahead of it, and an abutment along the front boundary of each of said stall-ways for limiting the forward position of the automobiles therein."

Claim 10 reads: "10. An outdoor theater comprising a stage, alternate rows of automobile driveways and automobile stall-ways arranged in front of the stage, said stall-ways being adapted to receive automobiles disposed in generally adjacent relation to each other and facing the stage, and means for longitudinally tilting the automobiles in said stall-ways in order to produce a generally clear angle of vision from the seat or the automobile through the windshield thereof to the stage, generally free of obstruction from the automobiles ahead of it."

Claim 16 reads: "16. An outdoor theater comprising exhibiting means and space for spectators in front thereof, inclined means for supporting automobiles in such space in rows further and further from said exhibiting means, the supporting means in the rows further and further away from the exhibiting means being higher and less inclined successively to an extent as will produce a clear line of vision from the seat of an automobile in a row, through a windshield thereof to the exhibiting means, free of obstruction from the automobile ahead of it, and an automobile driveway leading to and from said supporting means of a row."

There is no invention in the theatre thus described. Any satisfactory theatre must be so constructed that none of the audience will obstruct the view of any other while all observe a single small center of attention. Therefore, from the amphitheatre of antiquity to the modern movie palace, the architectural design of spectator space in large theatres has characteristically exhibited progressive variations in elevation and the inclination of planes from the horizontal.

A quarter century ago, the family automobile was rapidly passing from the category of a novelty in the law of torts to a commonplace in American family life. At the same time, the addition of sound to the commercial motion picture was making that already established divertisement an even more popular form of mass entertainment. This new combination of circumstances undoubtedly made it appear worthwhile in commercial contemplation to attempt to design theatres in which persons seated in automobiles within an out door area could view a motion picture screen. For the solution of this problem of latter day commerce, the patentee here rather promptly and cleverly adapted classical theatre design.

Curvilinear and progressively more elevated rows of stall-ways for the accommodation of automobiles in front of a stage are in conception and basic design as old and familiar as the classical amphitheatres. The inclination of individual rows from the horizontal is essentially segmentation of the inclined plane which constitutes the floor of almost every large theatre. The deeply recessed drive ways which alternate with rows of stall-ways are but exaggerations of the recessed passage ways which separate the rows of seats in many theatre galleries and balconies. In brief the patent in suit utilizes and adapts long practiced basic general principles of theatre construction to a special theatre in which patrons' automobiles are substituted for fixed seats.

Such devising lies in the field of mechanics. The patent which covers it is a combination patent. It is not contended that any of the individual elements described and claimed is novel. It is only the ingenious combination and adaptation of familiar mechanical expedients and architectural conceptions which is said to give the totality of arrangement which constitutes the drive-in theatre patentable quality.⁵ We think the ingenuity thus exhibited and applied falls short of invention within the requirements of present day patent law.

Language and analysis in the very recent Supreme Court Opinion in Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Co., 1950, 340 U.S. 147, 71 S.Ct. 127, are pertinent here. That case dealt with a patent on a cashier's counter equipped with a three-sided frame, or rack, with no top or bottom, which, when pushed or pulled, would move groceries deposited within it by a customer to a checking clerk and leave them there when pushed back to repeat the operation. The Supreme Court reversed a holding that the patent was valid, reasoning: "The conjunction or concert of known elements must contribute something; only when the whole in some way exceeds the sum of its parts is the accumulation of old devices patentable. Elements may, of course, especially in chemistry or electronics, take on some new quality or function from being brought into concert, but this is not a usual result of uniting elements old in mechanics. This case is wanting in any unusual or surprising consequences from the unification of the elements here concerned, and there is nothing to indicate that the lower courts scrutinized the claims in the light of this rather severe test. Neither court below has made any finding that old elements which made up this device perform any additional or different function in the combination than they perform out of it. * * * Two and two have been added together, and still they make only four. * * * Courts should scrutinize combination patent claims with a care proportioned to the difficulty and improbability of finding invention in an assembly of old elements. The function of a patent is to add to the sum of useful knowledge. Patents cannot be sustained when, on the contrary, their effect is to subtract from former resources freely available to skilled artisans. A patent for a combination which only unites old elements with no change in their respective functions, such as is presented here, obviously withdraws what already is known into the field of its monopoly and diminishes the resources available to skillful men. This patentee has added nothing to the total stock of knowledge, but has merely brought together segments of prior art and claims them in congregation as a monopoly." 340 U.S. at pages 152-153, 71 S.Ct. at page 130.

The applicability of this language to the problem before us is clear. Not a single element of plaintiff's claim performs a function in the drive-in theatre significantly different from the function it has always performed: not the means of aiming cars, not the inclination of the ground, not the devices for tilting the cars to various angles so as to insure visibility from back seats. The assembly of the elements of a successful...