232 F. 362 | E.D. Mich. | 1915
This is the ordinary patent suit in that the plaintiff asks for an accounting and injunction against the defendant for infringing patent, and also usual m that the defense offered is lack of validity of the patent and lack of infringement by the defendant’s structure.
The glass is subjected to pressure by currents of air, as well as liable to be subjected to pressure from persons who might lean against the glass. These pressures may be exerted from either side, but are more likely to occur from the outer side. It is therefore desirable to have the glass so set that it shall be held with sufficient rigidity to resist these
It is also desirable that moisture which may accumulate on the inner surface of the glass, either from the atmosphere or when the window is washed, should be taken care of by some form of gutter at the base, and that the water so collected in the gutter at the base of the glass should be disposed of in such a way as not to leave the inside window sill wet or rot the wood near the base of the glass. It is of course to be desired that the structure used to hold and ventilate the glass and dispose of moisture be easy of installation, and it should be easy to remove it for replacement or for cleaning out the structure.
Numerous parties had made efforts to accomplish these various results. As is usual in the different arts, the early inventors had some particular one of these desirable results in mind, and their efforts were exerted for the accomplishment of that particular result. As the art developed they began to combine the objects which they hoped to attain. Inventive genius had sufficiently developed at the time of Strayer patent, No. 416,080, November 26, 1889, so that the holding of the glass was attempted, if not accomplished, by substantially three elements, a stool or rest to support the glass at its bottom, a gutter supporting it at the back or inner side, and a brace, holding it at its front or outer edge.
The plaintiff’s patent in suit contemplates the use of these three elements, but in my opinion not in such a way that they can be said to be the same elements as those of Strayer. The front holding element is different in some respects; but the particular difference, and the one which to my mind is controlling, is the difference in the inner member. The inner gutter, which Strayer shows as rigid, has no provision for ventilation, and, while it might have resiliency at a portion of its holding contacts,- the method of fastening in position is such that it would be rigid at the corners of the glass. There seems to have been no thought on the part of Strayer to have this gutter resilient, and his structure was such that, even though it was in fact resilient at points away from the ends of the glass, that would be a misfortune rather than a benefit, because it was certainly not resilient at the ends. So it seems to me that he must have had in mind, so far as he contemplated that phase of the matter at all, to make it rigid. He certainly did not have the combination of elements called for by the Plym claims, and his device is but a modification of the former improvised type made by village carpenters, with a tube soldered to one end of the gutter for carrying off the water from the inner surface of the window. In the Strayer construction there is no provision for the subgutter, by which the water is carried to the outside of the setting immediately beneath the glass in such a way as to allow for ventilation by the same means which dispose of the water, as in the Plym patented device.
The change of the inner holding member from a rigid one to a resilient one was an important step in the development of the art, and I think it,' together with the combination of elements of plaintiff’s de
As I understand the development of the art and the earlier patents, Plym was the first to use in any practical way the yielding inner member, so that on pressure from the outside, where pressure is most likely to occur, the glass would be so firmly held as to keep it in place, and yet at the same time would yield sufficiently wherever the strains were exerted, so that it would not break at the edges near the holding points. Out of this invention a new combination and useful structure seems to have been created, and one that has been of real benefit and assistance to the public generally and is now in general use.
It is urged that Plym’s first patent, No. 846,343, patented March 5, 1907, the application for which was copending at the Patent Office with the application for the patent in suit, covers the structure described in the patent in suit so fully and in such a way that the suose-quent patent, the patent in suit, is void; the contention of the defendant in that regard being that not only should the test be applied as to whether or not tfie claims of the patent in suit add enough of inventive genius over the claims of Plym’s prior patent to warrant the issuing of a patent, but it is claimed in addition that if from the drawings or description, or anything contained in any way in the prior patent, enough is shown of the structure of the patent in suit, so that by the use of mechanical skill, added to what is disclosed by Plym’s first patent, the structure of the patent in suit could be made, then the second patent is void. In other words, defendant claims that all that Plym shows that he knew about a structure of this kind prior to the time that he filed the application for the patent in suit should be construed against him and against the patent in suit in the same way that it would be if that information had been obtained by him, prior to the time of his filing his application for the patent in suit, from some outside source, and the information had not been acquired by his own genius.
I think it is plain from the earlier Plym patent that Plym had then conceived the idea of a resilient inner retaining gutter, but at that time he thought to accomplish the results by using that resilient inner gutter support in connection with a different combination than that shown by the claims in suit. In the first patent he shows an outer retaining
In a less degree the same tiling would be true if the outer member was resilient and- the inner member rigid. The only reason why it would not be so objectionable would be because pressure was not exerted against it from the inside. If wind currents or other strains should come against the inside of the structure, then the same objection and unfortunate results which I have pointed out would follow, if the outer retaining member was resilient and the inner member was rigid. But I take it in actual use these wind currents and the usual pressure is upon the outside. So there would not be so much objection to a rigid inner member and a resilient outer member, so far as this disadvantageous result is concerned. I do not think there in anything in the prior art or in the earlier patents, including Plym’s, that would void the patent in suit.
Defendant’s only contention of noninfringement is that the inner member of defendant’s construction is not resilient, but, on the contrary, is rigid. Plaintiff is not entitled to insist on absolute rigidity, such as would result from direct contact of the glass with cast iron. We all know that, before any of these inventive minds gave their energy and attention to the subject, glass was supported by wood and putty, and the plaintiff cannot claim any right to exclude the use of such yielding force as comes from the materials themselves, whether-
On the other hand, the plaintiff ought not to be limited to- a retaining member so resilient that it could be easily pressed aside. There is nothing in the claims that would indicate that he ini ended to- hold the glass by a weak spring, or something that would yield easily. One little experienced in the art would recognize that it must be held firmly. There is nothing in the drawings of the patent in suit anywhere that would indicate that the plaintiff had in mind, nor do the claims contemplate, a weak holding such as could be easily pushed aside; but everything indicates that it should have strength sufficient to hold the glass in place, and that the glass shall only move when heavy pressure or abnormal strains are exerted against the glass. It is apparent that the device contemplated that it should hold the glass in place until, as nearly as possible, the strength of the glass had been exhausted, but that before the glass should break the holding member should yield, and then yield only sufficiently and so far as necessary to prevent the breaking of the glass. Of course, this could not be done to a strict nicety, but the device seems to have had in mind to accomplish that so far as possible. The nearer it comes to accomplishing that result, the nearer it accomplishes the desire the inventor had in mind, and the more useful it was in the art.
This finding is on the defendant’s device of so-called scant brackets. It is shown by the record that those were used, and it is on that structure that the plaintiff bases its suit. The other subsequent structures
Plaintiff is entitled to the injunction and accounting prayed, and a reference will be made to William S. Sayres, Jr., as special master, for such accounting. A decree will be entered in accordance with this opinion.