Eberle v. Stix, Baer & Fuller Dry Goods Co.

280 F. 117, 1922 U.S. App. LEXIS 1773

Opinion

LEWIS, Circuit Judge.

This is a patent infringement case brought by Eberle, the patentee and his licensee, appellants. The defense of anticipation was sustained and the bill dismissed; and with this we fully agree. The mechanical device is a child’s swing, and the one and only claim runs thus:

“A child’s swing comprising a single rigid rectangular seat frame, a rectangular fabric pocket having its upper margins folded over and secured to said rigid rectangular seat frame, suspension members secured to the comers of said rigid rectangular scat frame, and a rigid rectangular spreader separating said suspension members at points above said rigid rectangular seat frame, the corners of said spreader eorresironding to the corners of said rigid rectangular seat frame.”

But before Eberle, Thompson 58,510, Higham 472,351, Davidson 736,826, Carley 1,063,956, and Blain 1,104,609, each shows a single rigid rectangular seat frame, in suspended swinging baby jumpers or swings; Hawk 1,055,975, Patten 1,057,360, Carley and Davidson each shows a fabric pocket seat attached to the seat frames, and in Davidson, Blain and Carley the pocket seats are rectangular, and in Patten the fabric is folded over and secured to the rigid seat frame. All of the earlier patents just noted necessarily show suspension members, in most of them there are four of these members secured to the seat frame, all but Hawk which has three, and in Carley, Blain, Thompson and Hig-ham rigid spreaders overhead of the suspension members are shown. Nothing new or novel was brought in by Eberle. He used old elements,, combined in substantially the same way for the same purpose as was done by those who preceded him, and the results from the use of his swing are no greater, or better, or different, or more easily or cheaply obtained than were the results obtainable from the use of like devices of baby jumpers and child swings disclosed in prior patents above referred to.

Affirmed.