Rousso v. Barber, 3091.
| Decision Date | 02 March 1925 |
| Docket Number | No. 3091.,3091. |
| Citation | 3 F.2d 740 |
| Parties | ROUSSO v. BARBER et al. |
| Court | U.S. Court of Appeals — Third Circuit |
Joshua R. H. Potts, of Chicago, Ill. (George B. Parkinson and Brayton G. Richards, both of Chicago, Ill., of counsel), for appellant.
Henry Oliver Evans, of Pittsburgh, Pa., and Moseley Arthur Keller, of New York City, for appellees.
Before WOOLLEY and DAVIS, Circuit Judges, and RELLSTAB, District Judge.
Certiorari Denied by Supreme Court March 2, 1925.
This is an appeal from a decree of the District Court holding claims 1, 2, 3 and 5 of the Rousso patent No. 1,157,046 void for want of invention. At the trial infringement of the patent, if valid, was admitted, and the validity of the patent turned on the question of priority of invention — a pure question of fact.
The subject matter of the patent is a towel cabinet of the kind now generally found in lavatories of office buildings, hotels and restaurants. The need for such a device was brought about by the misuse of towels in public places and by loss from petty stealing which grew to astonishing proportions. To overcome these difficulties in supplying towels for public use Rousso was granted the patent in suit. Claim 1, broadly stating the principle which runs through all the claims, reads as follows:
"In a device of the class described, a towel support; and a retaining member extending upwardly from said support and then downwardly sufficiently to constitute a suitable guide for a towel while in use, substantially as described."
The Rousso construction, as disclosed by the specification, comprises an upper towel support in the form of a box-like cabinet adapted to hold a pile of clean towels. Each towel is provided with a grommet or brass eyelet adjacent to its outer edge. By means of the grommets the towels are threaded upon a combined guide and retaining member in the form of a goose-neck rod detachably secured to the upper side of the bottom of the cabinet and extending upwardly through the pile of clean towels, thence outwardly and downwardly into a receptacle below. The arrangement is such that the clean towel, uppermost on the pile, may be pulled upwardly, outwardly and downwardly along the guide rod into a convenient position for use and thereafter be permitted to fall of its own weight into a soiled towel receptacle below — locked all the while against unauthorized removal.
The device was popularly received and has gone into wide public use.
This looks like invention. The question is — whose invention was it? There was a number of men who conceived this idea within a singularly brief period. Aside from Rousso, one of them was Solomon. His construction, having like all others the goose-neck retaining rod as the central element, differed from Rousso chiefly in enclosing the cabinet more completely and in exposing the towel only when in use. The first patent granted was to Solomon on an application filed later than Rousso's application. When the patent to Rousso was issued, Solomon, on being charged by Rousso with infringement, immediately applied for a re-issue to include the identical claims of the Rousso patent here in suit. As Solomon filed his application for re-issue within two years of the date of the patent we are not concerned with the rule of Chapman v. Wintroath, 252 U. S. 126, 40 Sup. Ct. 234, 64 L. Ed. 491.
This application for re-issue immediately provoked interference proceedings between the Rousso patent, the Solomon application for re-issue and three pending applications for similar patents. The history of these proceedings, in so far as it affects the parties Rousso and Solomon, briefly stated is this: The Examiner of Interferences refused to award priority of invention to Rousso. On appeal, the Examiners-in-Chief, reversing the Examiner of Interferences, awarded the invention to Solomon. On appeal, an Assistant Commissioner of Patents reversed the Examiners-in-Chief and awarded the invention to Rousso and, finally, on appeal to the Court of Appeals of the District of Columbia that court, subscribing to the reasoning of the Examiners-in-Chief, reversed the Assistant Commissioner and awarded the invention to Solomon. 271 F. 799, 50 App. D. C. 333. After Rousso and Solomon had staggered through four patent tribunals in which each at different times had been awarded the invention, Rousso brought suit for infringement against Solomon in the District Court of the United States for the Western District of Missouri where the same issue of priority of invention was raised. Pending suit, Rousso bought Solomon's patent, and the court by a consent decree sustained the Rousso patent. Thus Solomon passed out of the controversy until Rousso instituted this suit against Barber for infringement. Barber, attacking the validity of the patent, revived the issue of priority of invention and stood on the finding of the Court of Appeals of the District of Columbia in favor of Solomon.
We have deemed it necessary to give this extended account of the prosecution of the Rousso patent in order clearly to distinguish the issues here involved from issues tried and determined in eight federal courts in five...
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Solomon v. Renstrom
...which in character and amount carries complete conviction. Morgan v. Daniels, 153 U.S. 120, 14 S.Ct. 772, 38 L.Ed. 657; Rousso v. Barber, 3 Cir., 3 F.2d 740; Globe-Union, Inc. v. Chicago Telephone Supply Co., 7 Cir., 103 F.2d 722. In Morgan v. Daniels, supra 153 U.S. 120, 14 S.Ct. 773, refe......
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