KOHLSAAT, Circuit Judge
(after stating the facts as above). The-main element of the combination patent in suit is that which makes provision for a bedding receptacle — -the three-section bed-bottom. By means of it, the bedding can be stored in a made-up form, so that, when ■ the sofa-seat is overturned -and the bed-bottom extended, the bed will be ready for occupancy. Other features are achieved, such as those which deceive the eye by the almost perfect representation of a device which is a sofa and nothing more. Other advantages are [75]*75found in the ease with which the device may be manipulated, whereby it can be operated by a woman; the fact that it need not be pulled away from the wall when rotated to bed form; the resilient character and mounting of the spring feature; the cheapness of manufacture and simpleness of construction. All these desirable ends are found within the patent. Its success as an article of commerce was and is marked. The combination of all these and others in one symmetrical and attractive whole, other things being equal, furnishes patentable novelty. It is, however, a matter of common knowledge that this field of invention has been prolifically exploited. The record presents a number of prior patents covering sofa beds, as above noted.
The Tendler and Moeshlin sofa bed-bottom contains but two sections. It does not appear to have been on the market. The sofa-seat is hinged to the front face of the sofa-bed frame and, when the device is to be changed to a bed-form, is swung forward on the hinges, thus exposing the bed. It is not of the rotary form of sofa-beds. Its two bed-bottom frame sections are connected by a link or bar placed flat-wise against the end, and so as to lap an equal distance on each frame. “The distance between the centers of both of the pins c, c, of each of the bars C, C,” says the specification, ‘.‘should be somewhat greater than double the thickness of the mattress in order that such mattress may be bent in its middle and one-half of it be turned over upon the other half during the process of turning the front half of the bed foundation toward and over the rear half thereof.”
It is evident that if the connecting links are extended to space the so-called foundation parts sufficiently to receive the doubled-up mattress and other bedding, there will be presented a chamber or receptacle having only a top and bottom and having no back wall. Moreover, this device does not utilize the clearance space between the bed-bottom and the sofa-seat for spring action of the bed-bottom. These facts, together with the failure to disclose a merchantable article, seem fairly to disqualify this patent as an anticipation. Its slatted bed foundation or mattress does not permit of expansion. The hinges on the front would clearly indicate the double character of the sofa-bed.
Stechhan also provided a bed-bottom with but two sections. It has no medial section. “The invention,” says the specification, “principally consists in the application of a peculiar form of double hinge to the lounge.” The device presents no adequate bed clothing receptacle. It resembles the Tendler and Moeshlin structure. It is not of a rotary character. Even when extended, the bed-bottom parts are separated by an appreciable space which must make itself felt even when covered by a mattress. It comes far short of the combination of the patent.
The Hallquist and Wennberg patent was cited by the Patent Office during the prosecution of the patent, against claim 1. The device is of the rotary type. No provision is therein made for retaining the bedding, though space is not wanting if properly inclosed. The structure of the patent does not seem to have been deemed in the Patent Office as suggestive of claim 2 in suit. The patent shows a bodily revoluble and overturning -sofa-seat with a three-section bed-bottom in which the [76]*76medial section is wide and the wing sections may be folded onto the medial section, but not in such a manner as to produce a receptacle for the bedding. The device lacks any suggestion of the concept of the patent in suit. The wing sections serve and can serve no such purpose as those in suit. There is no receptacle. While these wing members carry a woven wire mattress and stretch it for use as a bed, they are not intended to, and do not, serve to form any room or receptacle. In the patent sofa-bed it is the medial section that does this, and no amount of adjustment could effect that end in Hallquist’s device.
The Lundberg patent calls for a sofa-bed of the rotary kind. It is not pertinent as a reference here. Its folding head and 'front boards do not justify its citation as against the wing sections of the patent in suit.
The Martenson bed-sofa calls for a construction whereby, when folded or closed to serve as a sofa, the clothing of-the bed is contained therein, and all parts so adjusted and secured as to make the article look like a sofa. The seat is rotatable. When rotated there is disclosed a bed folded in two sections which are hinged together, the one folding, over upon the other. The edges of the rails of the two sections.“stand higher than the surface of the mattress so as to form a space between the frames [edges] when folded for the retention of the bed clothes,” etc. This is not apparent from the drawings. Space for storing the bedding is not shown. Certainly if any there be, it must be very inadequate and not suitable for compassing the bedding in a made-up form. To provide such a space must inevitably interfere with the closing of the sections, and consequently the operation of the sofa. The hinge or folding line cannot fail to present what is known as a hard-center, by reason of the cross-piece of the frames. Each section has its own bed spring and bed-bottom. It comes far short of an anticipation of the patent in suit.
Linderoth shows a bed chair or sofa of the rotary construction: The combined sofa or chair and bed is rotated upside down, presenting the bed portion in folded form. The upper frame is turned on its hinges to a plane with the lower section. This is further extended by drawing out a third section having slidable support in the second section. The device makes no provision for bedding space, and in no way anticipates the patent in suit.
Thompson’s particular object was to produce such a bed suitable for a divan. ■ It is not rotatable. While it makes provision for storing a mattress and other bedding, it lacks almost entirely the concept of the patent. It would require a degree of'adjustment amounting to invention to change it into the sofa-bed <bf the patent. The bed-bottom is not in a plane spaced above the seat. The operation of the device involves the shifting of bearings and pivots. Its parts could not be combined with Tendler or any other of the prior art devices to produce that of the patent in suit without adjustments made in the light of the patent, which, but for the patent in suit, would be pat-entably new.
Heringhausen’s sofa-bed is of the non-rotatable type, and has no bearing upon the features here in suit, except that it may be uniolded [77]*77into bed form, though by means entirely foreign to those of the patent in suit. No provision is made for the storage of bedding. There is nothing in it to suggest the Holmes and Bostrom construction.
Thus we see that there is nothing in the prior art which, without serious modification, can be said to anticipate appellee’s device as covered by either claim 2 or claim 4. As stated by its counsel:
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KOHLSAAT, Circuit Judge
(after stating the facts as above). The-main element of the combination patent in suit is that which makes provision for a bedding receptacle — -the three-section bed-bottom. By means of it, the bedding can be stored in a made-up form, so that, when ■ the sofa-seat is overturned -and the bed-bottom extended, the bed will be ready for occupancy. Other features are achieved, such as those which deceive the eye by the almost perfect representation of a device which is a sofa and nothing more. Other advantages are [75]*75found in the ease with which the device may be manipulated, whereby it can be operated by a woman; the fact that it need not be pulled away from the wall when rotated to bed form; the resilient character and mounting of the spring feature; the cheapness of manufacture and simpleness of construction. All these desirable ends are found within the patent. Its success as an article of commerce was and is marked. The combination of all these and others in one symmetrical and attractive whole, other things being equal, furnishes patentable novelty. It is, however, a matter of common knowledge that this field of invention has been prolifically exploited. The record presents a number of prior patents covering sofa beds, as above noted.
The Tendler and Moeshlin sofa bed-bottom contains but two sections. It does not appear to have been on the market. The sofa-seat is hinged to the front face of the sofa-bed frame and, when the device is to be changed to a bed-form, is swung forward on the hinges, thus exposing the bed. It is not of the rotary form of sofa-beds. Its two bed-bottom frame sections are connected by a link or bar placed flat-wise against the end, and so as to lap an equal distance on each frame. “The distance between the centers of both of the pins c, c, of each of the bars C, C,” says the specification, ‘.‘should be somewhat greater than double the thickness of the mattress in order that such mattress may be bent in its middle and one-half of it be turned over upon the other half during the process of turning the front half of the bed foundation toward and over the rear half thereof.”
It is evident that if the connecting links are extended to space the so-called foundation parts sufficiently to receive the doubled-up mattress and other bedding, there will be presented a chamber or receptacle having only a top and bottom and having no back wall. Moreover, this device does not utilize the clearance space between the bed-bottom and the sofa-seat for spring action of the bed-bottom. These facts, together with the failure to disclose a merchantable article, seem fairly to disqualify this patent as an anticipation. Its slatted bed foundation or mattress does not permit of expansion. The hinges on the front would clearly indicate the double character of the sofa-bed.
Stechhan also provided a bed-bottom with but two sections. It has no medial section. “The invention,” says the specification, “principally consists in the application of a peculiar form of double hinge to the lounge.” The device presents no adequate bed clothing receptacle. It resembles the Tendler and Moeshlin structure. It is not of a rotary character. Even when extended, the bed-bottom parts are separated by an appreciable space which must make itself felt even when covered by a mattress. It comes far short of the combination of the patent.
The Hallquist and Wennberg patent was cited by the Patent Office during the prosecution of the patent, against claim 1. The device is of the rotary type. No provision is therein made for retaining the bedding, though space is not wanting if properly inclosed. The structure of the patent does not seem to have been deemed in the Patent Office as suggestive of claim 2 in suit. The patent shows a bodily revoluble and overturning -sofa-seat with a three-section bed-bottom in which the [76]*76medial section is wide and the wing sections may be folded onto the medial section, but not in such a manner as to produce a receptacle for the bedding. The device lacks any suggestion of the concept of the patent in suit. The wing sections serve and can serve no such purpose as those in suit. There is no receptacle. While these wing members carry a woven wire mattress and stretch it for use as a bed, they are not intended to, and do not, serve to form any room or receptacle. In the patent sofa-bed it is the medial section that does this, and no amount of adjustment could effect that end in Hallquist’s device.
The Lundberg patent calls for a sofa-bed of the rotary kind. It is not pertinent as a reference here. Its folding head and 'front boards do not justify its citation as against the wing sections of the patent in suit.
The Martenson bed-sofa calls for a construction whereby, when folded or closed to serve as a sofa, the clothing of-the bed is contained therein, and all parts so adjusted and secured as to make the article look like a sofa. The seat is rotatable. When rotated there is disclosed a bed folded in two sections which are hinged together, the one folding, over upon the other. The edges of the rails of the two sections.“stand higher than the surface of the mattress so as to form a space between the frames [edges] when folded for the retention of the bed clothes,” etc. This is not apparent from the drawings. Space for storing the bedding is not shown. Certainly if any there be, it must be very inadequate and not suitable for compassing the bedding in a made-up form. To provide such a space must inevitably interfere with the closing of the sections, and consequently the operation of the sofa. The hinge or folding line cannot fail to present what is known as a hard-center, by reason of the cross-piece of the frames. Each section has its own bed spring and bed-bottom. It comes far short of an anticipation of the patent in suit.
Linderoth shows a bed chair or sofa of the rotary construction: The combined sofa or chair and bed is rotated upside down, presenting the bed portion in folded form. The upper frame is turned on its hinges to a plane with the lower section. This is further extended by drawing out a third section having slidable support in the second section. The device makes no provision for bedding space, and in no way anticipates the patent in suit.
Thompson’s particular object was to produce such a bed suitable for a divan. ■ It is not rotatable. While it makes provision for storing a mattress and other bedding, it lacks almost entirely the concept of the patent. It would require a degree of'adjustment amounting to invention to change it into the sofa-bed <bf the patent. The bed-bottom is not in a plane spaced above the seat. The operation of the device involves the shifting of bearings and pivots. Its parts could not be combined with Tendler or any other of the prior art devices to produce that of the patent in suit without adjustments made in the light of the patent, which, but for the patent in suit, would be pat-entably new.
Heringhausen’s sofa-bed is of the non-rotatable type, and has no bearing upon the features here in suit, except that it may be uniolded [77]*77into bed form, though by means entirely foreign to those of the patent in suit. No provision is made for the storage of bedding. There is nothing in it to suggest the Holmes and Bostrom construction.
Thus we see that there is nothing in the prior art which, without serious modification, can be said to anticipate appellee’s device as covered by either claim 2 or claim 4. As stated by its counsel:
“The patentees of the patent in suit were the first to place a resilient bed-bottom capable of flexing in three sections, in a new situation, in which it was spaced above a supporting substructure in such manner as (1) to utilize the space for clearance to permit proper spring action of the bed-bottom, and (2) also to utilize said space for collapsing one of the sections upon the substructure so as to permit part of the bedding to occupy part of the space before used for such clearance, and to suitably support and retain the bedding therein in a made-up form.”
We are not impressed with the claim of appellants that the patent covers rather an aggregation than a combination. All the parts claimed are—
“associated in a unitary structure and there co-operate to produce either a new mode of operation or a new result, or the old result in a modified or improved way.” Railroad Supply Co. v. Hart Steel Co., 222 Fed. 261, 138 C. C. A. 23.
The advance made by the patent upon the prior art is slight. Indeed, there seems to have been little room for marked advance. Perhaps there is no article designed for man’s comfort in which slight advances are more appreciated. The elements entering into what constitutes a perfect sofa-bed are set out in the record by a dealer in supplies for sofa-beds of many years’ standing. Among these are the following: That the sofa-seat should be of the usual height from the floor when in sofa form; that the sofa should not suggest adaptation to beds or other forms; that there should be a substantial spring fabric forming the main part of the bed-bottom with clearance below for spring action; that there should be cushion springs for the seat and a fiat spring mattress for the bed-bottom, independent of each other; that the bed spring should be continuous and free from contact with under rigid braces; that the sofa-bed be capable of containing the bedding at all times in made-up form; that the device should he easily operated by women; that the operating parts be simple and not liable to get out of order; that the bed be operable without moving it away from the wall; that it be inexpensive and easily handled for shipment and reassembling. All of these, the sofa-bed of the patent possesses. The most marked novel element is the three-section bed-bottom, whereby provision is made for storing the made-up bed. Another feature is the simplicity, whereby ease of operation and cheapness are attained, as above set out.
Two forms of sofa-bed are covered by both the claims in suit, viz., that wherein the standards upon which the bed frames are pivoted are mounted upon the stationary frame, and that in which said standards rest wholly upon and are carried by the sofa-seat. Claim 2 is broad enough to include sofa-seats hinged at the front of the sofa frame. Claim 4 specifically calls for a medial section which is wider than the wing sections and limits the device to a revolubly overturning seat.
[78]*78As above stated, appellants admit that if the patent in suit is valid, their form No. 1 infringes. Appellants’ expert testified that claim 2 reads on both forms 1 and 2 of appellants’ device—
“unless tlie court finds the language used in the claim to the effect that the bed-bottom when unfolded forms an expanded bed-bottom in a plane above the seat, to mean such a form of structure as is illustrated 'in Mg. 4 of the patent in suit in which this bed-bo'ttom plane is actually above a horizontal plane which would pass through the top of the upholstered surface of the sofa-seat when in its assembled form as a sofa.”
As we have above stated, that language of claim 2 applies to the sofa-seat when overturned. Appellants’ attempt to avoid the patent by alteration of some detail of the frame construction claimed to be taken from Tendler fails entirely to escape the concept of the patent in suit or of either of the claims in suit. In the form 2 of appellants’ device the end rails of the medial sections are not directly supported by the uprights £0, the end rails 17 being extended beyond the point of their pivoted attachment to the medial section end rails, and the extended parts of said end rails 17 being pivoted to said uprights W. While in appellants’ device 2 the ends of the rails 17 and 15, when in bed position, are spaced apart only slightly, yet when the sections are folded in preparation for the sofa position, they are very considerably spaced apart. In the first form they may resemble Tendler, but in the latter the variance is emphatic — practically the equivalent of the medial section of the patent in suit as to spacing. Moreover, the mattress of the bed-bottom flexes just as does that of the patent and on the same lines. We concur in appellee’s statement that the bed-bottom “sections are divided from each other by the lines on which they are folded and unfolded.” The appellants’ sofa bed-bottom No. 2 is therefore the full equivalent of appellee’s three-section bed-bottom.
The utility of the device, appellants’ appropriation thereof concedes. While not decisive of the question of invention, the commercial success of the patented sofa-bed adds probability to its patentable character. None of the alleged prior art devices have survived, if, indeed, any of them ever went into commerce. Both the sofa-bed of the patent and that of the appellants have found considerable favor in the market.
The foregoing, re-enforced by the presumptions growing out of the grant of the patent, lead us to the conclusion that the patent is valid, and that both of the claims in suit are infringed by each of appellants’ sofa-bed forms.
The decree of the District Court is therefore affirmed.