Rousso v. New Ideal Laundry Co.

• Decision Date: 08 December 1925
• Docket Number: No. 365.,365.
• Citation: Rousso v. New Ideal Laundry Co., 9 F.2d 1012 (W.D. Mo. 1925)
• Parties: ROUSSO v. NEW IDEAL LAUNDRY CO.
• Court: U.S. District Court — Western District of Missouri

9 F.2d 1012 (1925)

ROUSSO v. NEW IDEAL LAUNDRY CO.

No. 365.

District Court, W. D. Missouri, W. D.

December 8, 1925.

Joshua R. H. Potts, of Chicago, Ill., and George Y. Thorpe, of Kansas City, Mo., for plaintiff.

Alfred M. Allen, of Cincinnati, Ohio, for defendant.

REEVES, District Judge.

This is a proceeding in equity for an alleged infringement of United States reissued letters patent granted Edwin T. Brigham on July 12, 1921. Its number is 15,147, and is for an improvement in towel racks. The original patent was numbered 1,371,295, and was granted March 15, 1921. The application for the original patent was filed January 4, 1912. The application for reissue was filed March 17, 1921, two days after the original patent was issued to Brigham.

Claim 11 of the original patent was embodied or repeated in the reissued patent and is as follows:

"11. A towel retainer comprising a support; brackets carried by said support; a rod having one horizontal and one substantially vertical portion; means to lock the ends of the rod in the respective brackets; and means to loosely retain towels upon the horizontal portion of the rod, substantially as described."

The reissue patent contained, in addition to the above, claims numbered 12, 13, and 14, each tending to give in fuller detail the meaning of the words "and means to loosely retain towels upon the horizontal portion of the rod, substantially as described," in claim 11. The language of the other mentioned claims in this respect was as follows:

"12. * * * And means located adjacent the outer end of said horizontally extending portion and arranged and adapted to impede, but not prevent, the passage of a towel therefrom, substantially as described.

"13. * * * And means located adjacent the outer end of said rod and arranged and adapted to impede, but not prevent, the passage of a towel therefrom, substantially as described.

"14. * * * And means located adjacent the outer end of said horizontally extending portion and arranged and adapted to impede, but not prevent, the passage of a towel therefrom, substantially as described."

The drawings accompanying both the original patent and the reissued patent were identical. These drawings illustrate a bent rod mounted upon a wall board. It extends first outwardly and horizontally from said wall board, then up, over, and down in gooseneck form, and then rearwardly to the wall board. The object of the device is to hold clean towels on the horizontal portion of the rod and then by an impedient to prevent or discourage the use of more than one towel at a time by a single user, and, moreover, to prevent, by reason of the attached or locked ends of the rod, theft of the towels.

The alleged infringing patent is referred to as Fetherolf patent, No. 1,536,707, granted May 5, 1925. In the latter patent, the construction consists of a tube extending outwardly from a wall bracket with a chain through said tube hanging downwardly from the end thereof; the lower end of the chain being attached to the wall bracket to secure towels suspended on the tube from theft. There is in like manner an impedient at the outer end of the tube. Such impedient consists of a bent wire extending outwardly from the wall bracket and so arranged as to straddle the outer end of the horizontal tube, upon which clean towels are suspended. The purpose of the impedance is to prevent or discourage the use of more than one clean towel at a time by a single user.

The plaintiff herein claims right and title to the Brigham patent by assignment. The defenses urged are (a) that Brigham has heretofore conceded priority in his construction; (b) that the reissued patent differs from the original; (c) that, even if similar, the reissue was not justified; (d) that the claims covered in both the original and reissued patent are met in the prior art, and are in consequence invalid and void; and (e) that the Fetherolf patent is later, and therefore of probative force that there is no infringement.

1. It does not appear from the evidence that Brigham, the inventor, had previously conceded priority in his construction. Devices of a kindred nature, previously used, involved a cabinet or a shelf upon which clean towels were laid. Such...