241 F. 674 | 8th Cir. | 1917
The appellants, who were the defendants below, complain of a decree of the District Court, to the effect that letters patent No. 970,237, issued to Gustav C. Kerkow on September 13, 1910, on an application,filed on July 26, 1907, now owned by the plaintiffs below, are valid, that the defendants have infringed upon the rights oí the plaintiffs secured thereby, that the defendants are enjoined from further infringement, and that they account for their profits and the damages to the plaintiffs. The claim, of the patent well describes the combination it secures, and it reads in this way;
“A shipping ease for bottled goods having in its end wail a slotlike hand-hole formed wholly therethrough, and a substantially rectangular concavoconvex dishlike cover composed of sheet material and attached to the inner face of the case, said cover being disposed with its concavity facing and wholly inclosing the hand-hole, and the upper edge of the cover being disposed sufficiently above the upper margin of the hand-hole to accommodate and protect the fingers of the hand when grasping the case, while at the same time shielding the contents of the box from the exterior.”
The object of the invention was to combine with shipping cases, and especially the beer cases generally in use, which when loaded with bottled beer weigh from 100 to 150 pounds each, simple, inexpensive, and effectual hand-hole covers, readily attachable and detachable, which would exclude from the beer the light which causes it to become cloudy, to deteriorate in taste and flavor, and to acquire a noxious odor, which would exclude the dampness and cold, and would nevertheless permit the fingers of the hands to enter the beer cases and wrap around
It is contended that the combination claimed in Kerkow’s patent was anticipated by patent No. 882,470, issued March 17, 1908, to Jetter & Drews, for an improvement in beer curtains; by patent No. 156,582, to Burton Mallory, issued November 3, 1874, for an improvement in mortise locks; by patent No. 254,899, issued to Benjamin S. Atwood on March 14, 1882, for improvements in shipping cases for jars and bottles; and by patent No. 710,789, issued to Augustus B. Mack on October 7, 1902, for an improvement in boxes.
Patent No. 710,789 issued October 7, 1902, to Mack, for improvements in boxes, secures improvements to the special form of box described in the specification of that patent in this way:
“The fundamental structure of the box is the rectangular frame F made of angle iron or other metallic bars or rods substantially rectangular in cross-section, the concave surfaces facing inward, so as to constitute horizontal and vertical flanges for the reception, support, and protection of the edges of the bottom, side, and end pieces of the box. The frame F is made of a single bar of angle iron or other metal, cut and bent into the rectangular form shown, the ends of the bar being welded together, so as to create a continuous integral structure consisting of the floor members ff, the comer posts f f, and the end cross-bars p P.”
One of the improvements of this box described and claimed by Atwood was:
“The combination with the frame F, and end pieces FI, of the finger shields 1 having at their upper ends rectangular extensions engaging the end cross-bars of said frame.”
■ In the specification he writes that these finger shields are of “ordinary construction, excepting' that their upper ends are each formed with rectangular extensions i', which fit into the angle iron f2, forming the end cross-bars of the box frame, as will be understood by reference to Fig. 6, in which it will be seen that the upper edge of the end pieces B may be fitted into the angle extension i' to hold the same firmly in place against and within the angle bar f2. This construction insures a permanent and rigid connection of the shields with the box and over the finger openings i2 i2.” The drawings of this patent show that these finger shields are so low, and are fastened so near to the upper edges of the hand-holes, that the fingers and hands could not be so inserted as to get a firm grasp of the upper edges of the hand-holes, and so that the finger tips alone could be used for this purpose.
The principle and mode of operation of Kerkow’s invention of hand-hole cover and box was the combination of a light, cheap, easily attachable’ and removable, efficient cover with any box which has hand-holes, whether the box be new or old, with a special view to the combination of this cover with the standard beer boxes. The principles and modes of operation of the inventions of Atwood and Mack, so far as they related to hand-hole covers, were permanently to combine with the specific kinds of boxes they were respectively describing and promoting at the time when those boxes were made specific covers as integral parts of those boxes respectively. Their covers were neither easily attachable nor detachable, they were not as simple or as inexpensive as those of Kerlcow, and they were not adapted to accomplish the broad purpose of his combination. They were not adapted to facile attachment to old boxes not specially prepared to receive them as a part of their construction when new. In view of these facts, neither the patent to Atwood nor that to Mack anticipates the invention of Kerlcow. While it is not denied that the combinations of boxes and hand-hole covers disclosed by Atwood and- Mack might exclude the light, cold, and damp from the interior of their boxes, and might permit the use of the hand
For this reason, and because no device or combination prior to Kerkow’s invention which resembles his patent of the combination more closely than those of Atwood and Mack, has been proved, because this result is sustained by the legal presumption of the validity of his patent and of the patentability of his invention, which always arises from the issue of a patent, and which may never be lightly disregarded (Cantrell v. Wallick, 117 U. S. 689, 695, 6 Sup. Ct. 970, 29 L. Ed. 1017; Diamond Rubber Co. v. Consolidated Rubber Tire Co., 220 U. S. 428, 434, 31 Sup. Ct. 444, 55 L. Ed. 527), because this presumption is reinforced by the fact that the board of examiners in chief of the Patent Office, on an appeal from the rejection of Kerkow’s application, after a deliberate consideration of the patents to Atwood and Mack, reversed the decision of the examiner below, held the combination here in suit patentable, and caused the issue of the patent (Lehnbeuter v. Holthaus, 105 U. S. 94, 26 L. Ed. 939; Warren v. Casey, 93 Fed. 963, 964, 36 C. C. A. 29; Salt’s Textile Mfg. Co. v. Tingue Mfg. Co. [D. C.] 227 Fed. 115, 118), because this presumption is still further strengthened by the decision of the United States District Court to the same effect, because the defendants in this case by the manufacture and sale of a hand-hole cover which closely resembles that of Kerkow, and bears no resemblance to the crude and expensive covers of Atwood, Mack, and the prior art, have added the testimony of their acts to the novelty and utility of Kerkow’s combination (Griswold v. Harker, 62 Fed. 389, 393, 10 C. C. A. 435, 439; New York Scaffolding Co. v. Whitney, 224 Fed. 452, 457, 140 C. C. A. 138, 143; Iowa Washing Machine Co. v. Montgomery Ward & Co. [D. C.] 227 Fed. 1004, 1006), because the parties hereto are litigating the right to the use of Kerkow’s combination, and because the hand-hole cover of Kerkow has gone into such general commercial use and more than 6,200,000 of them have been made and sold (Diamond Rubber Co. v. Consolidated Rubber Tire Co., 220 U. S. 428, 441, 442, 31 Sup. Ct. 444, 55 L. Ed. 527; National Hollow Brake-Beam Co. v. Interchangeable Brake-Beam Co., 106 Fed. 693, 707, 45 C. C. A. 544, 558: Smith v. Goodyear Dental Vulcanite Co., 93 U. S. 486, 495, 496, 23 L. Ed. 952; Magowan v. New York Belting Co., 141 U. S. 332, 343, 12 Sup. Ct. 71, 35 L. Ed. 781; Meccano
The question of infringement which this case presents is not worthy of extended discussion. The defendants made, sold, and caused to be sold hand-hole plates or covers 'for use in beer cases with the intent and purpose that they should be used as applied to beer boxes or beer cases in the same manner in which the covers of Kerkow are described and claimed as used in his combination of covers and shipping cases in the specification and claim of his patent. The only difference not absolutely negligible between the hand-hole cover of Kerkow and that made and sold by the defendants is that the concavo-convex or dish-shaped part of Kerkow’s cover is substantially rectangular, while the like part of the defendants’ cover has its two upper corners so rounded off that the upper portion of its dish-shaped part is curved or semi-circular rather than rectangular. But the flanges of the defendants’ cover, like those of Kerkow’s, are rectangular. The cover made by the defendants is placed in the same location as that of Kerkow on the boxes, is made of the same material, is, like the cover of Kerkow, light, inexpensive, simple, easily attachable and detachable to old and new boxes alike, excludes the light, cold, and damp, has every useful attribute aqd advantage of the cover of Kerkow, and performs the same functions as that cover in the same way. The change in the upper portion of the dish-shaped part of the cover of Kerkow from its rectangular form to the curved form of the defendants’ cover does not affect in any way the principle or mode of operation of the cover, or of the patented combination, and it does not even tend to avoid the indubitable infringement which the facts recited establish.
The decree below must be affirmed; and it is so ordered.