206 F. 60 | 7th Cir. | 1913
(after stating the facts as above).
Thompson’s figures 1 and 2 are here reproduced:
•Wjpsi
. Fif.-S.
Construction and intended operation are thus described in the specification :
“I form the fastener in two parts, one of which is fixed to the lower bar of the upper sash, and the other to the upper bar of the lower sash, as heretofore. I form one part thereof with a hinged lever, the knuckle of which is formed with flat sides which by the aid of a spring d, act to keep the said lever either in a vertical or horizontal position. The outer end of the said lever is formed with a slot, o', which is so arranged as to permit a sliding catch, e, on the other part of the fastener to pass therethrough when the lever is pressed down into a horizontal position, then by sliding the said catch it is caused to pass over the metal at the end of the slot and thereby securely hold the two parts together. The lever is formed to act in combination with a projection or fulcrum on the other part of the fastener in such manner as to ensure the proper closing of the sashes by the simple depression of the lever. If desired the sliding catch may be made self-acting (by means of the spring, g) to lock the parts together.”
It seems quite clear to us that Thompson had no conception of a device in which the pulling forward or pushing backward of a lever in a vertical plane would lock or unlock the sashes “without any secondary or additional movement, or locking device.” He relied upon the lever' and the opposing flange only to bring the sashes together laterally, and to his sliding catch he wholly ascribed the function of locking. So the Thompson patent is not an anticipation; and this virtually is confessed by Ludwigs’ reliance on Thompson modified by omitting the catch.
But the modified Thompson structure is not a part of the prior art. Topliff v. Topliff, 145 U. S. 156, 161, 12 Sup. Ct. 825, 36 L. Ed. 658. It has been produced in the light of Payson’s teachings. It is a sub
Consequently Ludwigs should respond fully for his wrongful conduct as shown in this record. In addition to being enjoined, he should be held to account, first, for the profits he has made by his infringe
Though the decree as entered respecting unfair competition must be modified, it is evident that Ludwigs gains nothing by his appeal. So the costs thereof, as well as of Payson Company’s appeal, should be taxed against him.
The decree-is vacated and the Cause remanded, with the direction to enter a decree in favor of Payson Company in consonance with this opinion.