Steiner & Voegtly Hardware Co. v. Tabor Sash Co.

• Decision Date: 11 April 1910
• Citation: 178 F. 831
• Parties: STEINER & VOEGTLY HARDWARE CO. v. TABOR SASH CO.
• Court: U.S. District Court — District of New Jersey

178 F. 831

STEINER & VOEGTLY HARDWARE CO. v. TABOR SASH CO.

United States Circuit Court, D. New Jersey.

April 11, 1910

Christy & Christy (Marshall A. Christy, of counsel), for complainant.

Frank S. Katzenbach, Jr. (J. William Ellis, of counsel), for defendant.

RELLSTAB District Judge.

The complainant, as assignee of letters patent reissue No. 12,405 (applied for November 10, 1904), dated November 7, 1905 (original No. 488,761, dated December 27, 1892), and letters patent No. 580,127, dated April 6, 1897, granted to James H Giesey, for certain new and useful improvements in windows brings this suit against defendant for an alleged infringement of such patents.

The bill alleges that the improvements covered by said letters patents are capable of use conjointly in one and the same window, and that the defendant has so used them. It contains the usual charges of the making, selling, and using by the defendant of windows that are an infringement of the complainant's patents, and prays the usual remedies of an injunction and an accounting.

The charge of the bill relative to the infringement of patent No 580,127 was abandoned. The question submitted, therefore relates entirely to the reissued letters patent No. 12,405, and the charge of infringement is based upon claims 1, 2, and 3 of that patent.

This patented device, adopting the language of the complainant's brief--

'consists of a window which is centrally pivoted within its frame, at the top and bottom, so that it may be rotated about on its pivotal axis, and which is of less height than the frame-space, so that when in its normal closed position it may fit down below the usual stool or strip on the sill, to make a weather-tight closure, and, when it is desired to rotate it on its pivots, it may be elevated so as to clear the stool. In order to close the space which will be left at the top when the window is lowered, and to permit of its being elevated and turned, there is provided a separate follower-strip, which rests upon and moves with the upper rail of the window, closing the top opening when the window is lowered, and being pushed up into a recess provided for it in the top of the frame when the window is elevated.

'The mechanism for elevating the window, and supporting it in its elevated position so as to permit its rotation, is contained in the lower rail of the window. By throwing over a lever the window is elevated above the stool, and supported in that position upon a firm bearing; and it may be rotated through a complete half circle, so as to turn its outer surface within, for purposes of cleaning or any other.'

The defendant admits that, if claims 1 and 2 are held to be valid, its two devices, 'Complainant's Exhibits Defendant's Windows No. 1 and 2,' infringe such claims. It contends, however, that all of the three claims are invalid for the following reasons:

'First, that the reissue as a reissue is void because of laches and intervening rights and because the description in the original specification is insufficient to support the claims of the reissue; second, that the claims in issue are totally lacking in novelty and invention; third, that the defendant does not infringe any valid claims of the patent in issue.'

The character of these defenses requires an extended quotation of and reference to the specifications of both patents. They will be combined; the parts of the original omitted from the reissue being bracketed, and the new parts in the reissue being italicized. They are as follows:

'Prior to my invention, so far as I am aware, pivoted windows have been so constructed and normally arranged with reference to the sill that the sash in its rotary movement has always moved in a plane slightly above the plane of the window sill, and consequently a neat or weather-tight joint could not be made. Efforts to overcome this inherent disadvantage have been suggested, consisting in providing the sill with a molding or strip adjacent to that half of the sash which in its rotary movement traveled away from the inside of the sill, but a concomitant disadvantage of this arrangement laid in the fact that the molding or strip formed a check against the rotation of the sash beyond one-half of a complete circle, and consequently great difficulty has been experienced in cleaning the outside surface of the window; and the further disadvantage has existed in the fact that that half of the sill which of necessity was devoid of the molding or strip was in a condition to admit between it and the window sash, wind, dirt, and rain; another disadvantage of the construction referred to lying in the fact that the entire weight of the sash is at all times exerted upon the central lower vertical pivots, and a consequent sagging of the same takes place each side of said pivot to such an extent that the sill is marred and defaced by the rotary movement of the sash. There has also been suggested, in the type of windows made up of two wings respectively hinged to opposite sides of the frame and opening and closing like a door, an arrangement in which one of the swinging wings is capable of a slight vertical movement on its hinges and is provided with a tension spring which tends to hold it in elevated position. In order to hold the window closed in its lowered position, a lock is provided, which must be engaged with the sill in order to resist and overcome the elevating force which is constantly exerted by the tension of the spring.

'My invention has for its objects to overcome all these defects and disadvantages (of a pivoted sash, and to secure in such a sash all the advantages which are inherent with an ordinary vertically movable sash; and with these objects and ends in view, my invention consists generically of a vertically pivoted sash so arranged with the frame and sill of a window that it shall have both a vertical movement, by which it may be raised out of and lowered into a seat, and a rotary movement by which it may be revolved to open and close the window, as will be hereinafter more fully explained), above stated, and to secure in a pivoted sash all the advantages which are inherent in an ordinary vertically-movable sash.

'(My invention also consists in the peculiar construction and arrangement of the devices employed for securing the results aimed at.) 'In order that those skilled in the art to which my invention appertains may fully understand the same, I will proceed to describe its construction, arrangement, and mode of operation, referring by letters to the accompanying drawings, in which:

'Figure 1 is a perspective view of a centrally-pivoted horizontally-swinging sash and frame embodying my invention. Fig. 2 is a central vertical section. * * * '

The following are the drawings here referred to:

(Image Omitted) * * * Similar letters of reference indicate like parts in the several figures of the drawings.

"A' represents an ordinary window frame with the sill, B, provided with a rabbet or seat for the lower rail of the sash, C, as is customary in the construction of windows in which the sash is raised and lowered to open and close the window; this seat or rabbet in the sill being essentially necessary to form a guard against the entrance of wind, dirt, and rain when the window is closed. The sash, C, is swung centrally upon vertical pivots, D, D'. The upper one, D, is formed integral with a rectangular plate, E, and the latter is secured to the frame by screws, A. The lower pivot, D', is formed integral with a plate. E', which plate is secured by screws, b, in a mortise on the under side of the lower rail of the sash, and formed with two longitudinal channels, g, g, to permit of the movement, hereinafter described, of the eccentrics. The sash is made less than the length of the opening in the frame, and consequently, when the lower rail of the sash is properly seated upon the sill or in the rabbet thereof, the upper rail of the sash will be below the under side of the upper part of the frame, and to close the space thus created, I provide an ordinary 'follower,' F, which rests upon the upper rail of the sash and is lifted thereby when the sash is raised, and falls by gravity when the sash is lowered. This follower is mortised out centrally to surround the upper pivot plate, D, when the said follower is lifted, as is clearly shown at Fig. 2. * * *

'Having described the construction and arrangement of the several parts of my improved window, I will now proceed to describe the operation of the same. The window being in a closed condition, and it being desired to open the same, the lever I, is turned to the right, as indicated by the arrow, until the journal, K, has rotated sufficiently far for the eccentrics to lift the sash free from the rabbet in the sill and for the feet or straight portions of the eccentrics to rest upon the plate, G', during which movement the follower, F, has been lifted up into its pocket or box in the upper portion of the frame, A. The sash may now be freely rotated upon its vertical pivots, D, D', at any angle to the natural plane of the window, and to such an extent that the outside surface of the sash, or glass, is readily accessible from the inside for the purpose of cleaning the same. When it is desired to restore the sash to its closed position, it is rotated in a reverse direction until it reaches its normal plane within the frame, the lever, I, is then thrown back, and the weight of the sash causes it to descend within the rabbet in the sill and to rest with its entire weight throughout its entire width upon the sill, and, as the sash in ordinary use is for a greater portion of the time closed, it will be seen that its own weight operates to keep it in true and stiff condition, thus avoiding the...