Winters v. Dent Hardware Co.

• Decision Date: 31 October 1928
• Docket Number: No. 3727.,3727.
• Citation: 28 F.2d 583
• Parties: WINTERS et al. v. DENT HARDWARE CO.
• Court: U.S. Court of Appeals — Third Circuit

28 F.2d 583 (1928)

WINTERS et al. v. DENT HARDWARE CO.^*

No. 3727.

Circuit Court of Appeals, Third Circuit.

October 4, 1928.

Rehearing Denied October 31, 1928.

Frank E. Liverance, Jr., of Grand Rapids, Mich., for appellants.

E. Hayward Fairbanks, of Philadelphia, Pa., for appellee.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

DAVIS, Circuit Judge.

This is an appeal from a decree of the District Court dismissing the bill of complaint, charging the defendant with infringing United States letters patent No. 1,385,102, issued to Alexander F. Winters and Basil R. Crampton, July 19, 1921. All seven of the claims were alleged to have been infringed. The court held claims 1, 2, 3, 4, and 7 to be valid, but not infringed, and claims 5 and 6, which plaintiffs sought to withdraw, invalid.

The appellants brought suit against the Sanitary Refrigerator Company for the infringement of the patent in question in the United States District Court for the Eastern District of Wisconsin. That court held all seven claims valid and infringed. An appeal was taken to the Circuit Court of Appeals for the Seventh Circuit. 24 F.(2d) 15. There the patentees conceded that claims 5 and 6 were invalid, and the appellee here concedes that the other claims are valid if limited to the specific structure disclosed, and, when so limited, it says it does not infringe.

Claims 1 and 7 are typical. They disclose in combination a door, a casing or joint, a keeper attached to the casing, and a latch lever attached to the door, rather than to the casing. The patentees proceeded upon the assumption that latch levers of this general type in the prior art were all attached to the casing and that one of the novel disclosures in their patent was the transposition of the latch from the casing to the door and the keeper from the door to the casing. They say in their specifications:

"The swinging lever latch, or as it is better known, the Condit latch, is pivotally connected at one end to the door jamb or casing, allowing the door to be opened when the latch is thrown to an upper vertical position, and coming down across the meeting edges of the casing and door when swung to horizontal position, engaging with a cam member on the door to wedge the door tightly shut This latch is a very serviceable latch but is relatively hard to operate due to its attachment to the casing instead of the door, and the same is liable to drop to horizontal position in which case the door cannot be closed without first raising the lever to upper vertical position while, many times, the door is inadvertently swung toward closed position and against the lever in its horizontal position with injury either to the lever or door or both. In the present invention, it is a primary object and purpose to provide a latch which may be pivotally connected to the door and which is automatically operated to engage with a retaining member or keeper fixed on the door casing when the door is closed irrespective of the vertical or horizontal position of the latch lever, working as well in the one case as the other * * * The mounting of the lever on the door is of value as use of one hand only is necessary for unlatching and drawing the door open. The ability to close the door and latch it automatically, irrespective of the position of the latch lever insures against injury to the latch or door and also insures that the door will be latched when it is swung shut."

The patents, however, to Keil, No. 564,448, to Dent, No. 67,506, to Schrader, Nos. 1,117,709 and 1,170,685, and to Ward, No. 1,250,736 show latches on the doors and keepers on the casing. So there is nothing new in the transposition by the patentees of the latch from the casing to the door. Neither is there anything new or novel in the door or casing as such. Patentable novelty, therefore, must be found, if at all, in the particular form or function of the keeper or latch or in both.

The keeper in the Keil patent is strikingly similar in both form and function to that of the patent in suit. In Keil, the keeper has a base attached to the casing by three screws. From this base a post extends outwardly for a short distance and terminates in a triangular head, which on the underside extends downwardly for a distance below the lower edge of the post. The head of the latch is the apex of the triangle. The two sides terminating in the head are practically straight while those of the patent in question are somewhat curved. From the apex of the keeper, when attached to the casing, one of the triangular sides extends upwardly and the other downwardly. The inner or lower side is cut upwardly and somewhat inwardly at a slight angle to the vertical, forming a wedging cam. This meagre description reads equally well on the keeper of either the Keil patent or the patent in suit.

The function of every part of the Keil keeper is practically identical with that of the keeper of the patent in question. One or the other of the arms of the latch lever of the Keil latch slides down on the lower triangular side of the keeper when the door is being closed. Which one of these two arms contacts with this lower side depends upon the position in which the latch lever is when the door is closed. The function performed by the plaintiffs' keeper and the Keil keeper in co-operation with the latch levers is the same function performed by keepers generally in the prior art patents. Only one of the sides of the Keil keeper, however, engages the arms of the latch lever and serves as a cam to direct the lever when the door is closed, but this is due to the design of the arms of the levers and not to difference in principle of operation.

The next question concerns the latch lever. Judge Evans in construing this patent in the Circuit Court of Appeals for the Seventh Circuit said that "patentable novelty resides in the structural differences of the latches (either in the keeper member or the latch member or in both)." The latch lever of the patent is about four inches long. A pin is run through the lever about one inch from the end which engages the keeper. This serves as a pivot or fulcrum. This latch lever is really a handle having two right angled arms near the pivot. One is the extension of handle beyond the pivot and the other is at right angles to it. In operation one of these two arms "is engaged with an outer portion of the keeper when the door is moved to closing position to swing the lever from a vertical position to a horizontal and engage the other...