Plastilite Corporation v. Airlite Plastics Co.

390 F. Supp. 1141, 185 U.S.P.Q. (BNA) 313, 1975 U.S. Dist. LEXIS 13649
CourtDistrict Court, D. Nebraska
DecidedFebruary 25, 1975
DocketCiv. 73-0-149
StatusPublished
Cited by2 cases

This text of 390 F. Supp. 1141 (Plastilite Corporation v. Airlite Plastics Co.) is published on Counsel Stack Legal Research, covering District Court, D. Nebraska primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Plastilite Corporation v. Airlite Plastics Co., 390 F. Supp. 1141, 185 U.S.P.Q. (BNA) 313, 1975 U.S. Dist. LEXIS 13649 (D. Neb. 1975).

Opinion

MEMORANDUM

DENNEY, District Judge.

This matter comes before the Court for decision subsequent to a trial to the Court on the merits which was held on October 7 and 8, 1974. Plaintiff claims patent infringement, trademark infringement, and unfair competition arising out of defendant’s unauthorized manufacture and sale of fishing bobbers closely resembling those manufactured by the plaintiff. The defendant, by answer, claimed that plaintiff’s patent and trademark were invalid and not infringed, and counterclaimed for treble damages under the antitrust laws.

Pursuant to F.R.Civ.P. 52, the Court makes the following specific findings of fact:

FINDINGS OF FACT — PATENT INFRINGEMENT

1. Frederick A. Lambach filed a patent application on a fishing bobber on July 24, 1963.

2. On August 4, 1964, patent number 3.142.930 was issued to Frederick Lambach.

3. On October 23, 1965, an application for a reissue patent was filed by Frederick Lambach. Reissue patent number 26,096 was issued. For the purposes of this case, the “reissue” nature of the patent is not important, since the claims (1 & 2) in question here have remained unchanged. [See Appendix A].

4. On July 19, 1963, Frederick Lambach assigned his rights in the patent application to Plastilite Corporation, the plaintiff in this case.

5. The bobbers of patent 3,142,930 were first sold in late 1962 by the plaintiff.

6. For the purposes of this suit, the bobber of patent 3,142,930 teaches two improvements. First, the plunger on the top of the bobber contains an annular groove into which the free end of a wire hook is receivable. Second, the bottom of the bobber has formed therein two parallel spaced apart embossments.

7. The annular ring facilitates assembly of the bobber, and the use of the bobber by a fisherman.

8. The two embossments serve to more securely grip the fishing line when it is attached to the bottom of the bobber.

9. Frederick Lambach invented the 3.142.930 bobber in December, 1960.

10. Frederick Lambach worked for the defendant until August, 1960, when he resigned from the defendant corpora *1144 tion and commenced working for the plaintiff.

11. Defendant manufactured and sold bobbers having two parallel spaced apart embossments on the bottom in the late 1950’s and early 1960’s.

12. On July 8, 1964, the plaintiff, through its attorney, Mr. H. Robert Henderson, advised defendant that a plunger having an annular groove but with two walls thereacross would not be an infringement.

13. Thereafter, until approximately 1965 or 1966, the defendant manufactured bobbers having a groove with two walls. Since then, defendant’s bobbers have been manufactured with only one wall across the annular groove in the plunger.

14. The patent examiner considered the following references as constituting the prior art:

A. Patent number 2,758,410 issued to C. A. Cowsert on August 14, 1956. His patent taught the use of a sleeve arrangement, in a fishing bobber, where the sleeves coacted to accurately guide the plunger. [See Appendix B].
B. Patent number 2,876,581 issued to L. Schmidt on March 10, 1959. This patent taught the use of a series of holes arranged in an arc, where the free end of the wire hook could be selectively received in any of the holes. The holes were of varying depths to accommodate fishing lines of different diameters. [See Appendix C].
C. Patent number 2,876,582 issued to L. Schmidt on March 10, 1959. This patent taught the use of a wire member which slidably engaged the plunger. The wire member extended from the axial wire typically found in spherical bobbers. Thus, in operation, the hook attachment means (e. g., the end of the axial wire) was urged to rotate with the plunger. The wire hook was thus automatically kept in alignment with the receiving hole. [See Appendix D ].
D. Patent number 2,965,999 was issued to G. M. Marsh on December 27, 1960. This patent teaches the use of a plunger that is keyed to the float body so as to be non-rotatable. In addition, the fishing line passed axially through the bobber. The line was secured by an off-center hook, receivable into a single hole in the plunger. [See Appendix E].

15. Plaintiffs Exhibit Number 61 is a spherical bobber bearing the inscription “Buckeye Bait Corp., Miamisburg, O.” This bobber has a 270° arcuate groove in the plunger for receiving the free end of the wire hook. Between the ends of the groove is a hole for receiving the free end of the wire hook. The depth of the groove is such that the wire hook will slidably contain the fishing line. However, the depth of the hole is such that the fishing line is gripped by the wire hook.

16. Plaintiff’s Exhibit Number 61 [Buckeye Bait Bobber] is of uncertain origin and the Court cannot find that this bobber was in the public domain prior to 1963 when the plaintiff’s patent application was filed.

17. Frederick Lambach had a patent search conducted prior to the filing of a patent application. The patents discovered in the search have not been identified as such and introduced into evidence.

18. Upon Lambach’s application for a reissue patent, the patent number 3,060,621, issued on October 30, 1962, to L. Schmidt, was included in the prior art.

19. The Schmidt patent teaches the use of a collar on the wire hook, located between the plunger and the fixed end of the spring. Thus, the two wire hooks can be automatically and sucessively disengaged.

20. A patent numbered 2,895,255 was issued on August 18, 1958, to H. B. Irwin. This patent discloses a circumfer *1145 ential groove having friction producing projections therein, for gripping a fishing line. The two sides of the groove are urged together by a spring.

FINDINGS OF FACT — TRADEMARK INFRINGEMENT

1. Red and white were the traditional colors used in fishing floats. In October or November of 1966, the plaintiff decided to use the colors orange (top) and yellow (bottom).

2. Bobbers having the new colors were first sold in interstate commerce on or about February 1,1967.

3. Application for trademark was filed on June 27, 1967, for the color combination yellow and orange for fishing floats.

4. The registration was issued on January 14, 1969, bearing registration number 863,462.

5. By decision dated August 21, 1973, the Trademark Trial and Appeal Board ordered that registration 863,462 “be cancelled in due course.” Airlite was not a party to cancellation proceedings. Cancellation number 9,990.

6. Plastilite has appealed the decision of the Trademark Trial and Appeal Board to the United States Court of Customs and Patent Appeals. Notice of appeal was filed on October 19, 1973.

7. On January 9, 1975, the United States Court of Customs and Patent Appeals affirmed the decision of the Trademark Trial and Appeal Board. Patent Appeal No. 74-556, Cancellation No. 9,990.

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Related

USM Corp. v. Detroit Plastic Molding Co.
536 F. Supp. 890 (E.D. Michigan, 1982)
Airlite Plastics Co. v. Plastilite Corp.
526 F.2d 1078 (Eighth Circuit, 1975)

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Bluebook (online)
390 F. Supp. 1141, 185 U.S.P.Q. (BNA) 313, 1975 U.S. Dist. LEXIS 13649, Counsel Stack Legal Research, https://law.counselstack.com/opinion/plastilite-corporation-v-airlite-plastics-co-ned-1975.