Scaramucci v. Universal Manufacturing Co.

W.D. Louisiana

Scaramucci v. Universal Manufacturing Co.

228 F. Supp. 680, 141 U.S.P.Q. (BNA) 378, 1964 U.S. Dist. LEXIS 9164

CourtDistrict Court, W.D. Louisiana

DecidedApril 23, 1964

DocketCiv. A. No. 8305

StatusPublished

Cited by3 cases

This text of 228 F. Supp. 680 (Scaramucci v. Universal Manufacturing Co.) is published on Counsel Stack Legal Research, covering District Court, W.D. Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Scaramucci v. Universal Manufacturing Co., 228 F. Supp. 680, 141 U.S.P.Q. (BNA) 378, 1964 U.S. Dist. LEXIS 9164 (W.D. La. 1964).

Pincite

Opinion

BEN C. DAWKINS, Jr., Chief Judge.

This action, claiming patent infringement, arises under the United States Patent Laws, 35 U.S.C. § 1 et seq., particularly § 271; and jurisdiction properly is invoked under 28 U.S.C. §§ 1338 and 1400.

Plaintiff, Domer Scaramucci, an engineer, resident and practicing his profession in Oklahoma City, contends that Claims 1, 4 and 5 of United States Patent No. 2,763,455, applied for December 16, 1952, and issued to him September 18, 1956, are being infringed by defendant, Universal Manufacturing Company, Inc., domiciled in this District.

Plaintiff normally engaged in oil field engineering activities, first as an employee and since 1950 in his own business under the trade name Machinery Equipment Company. To provide additional funds for his business of testing the structural strength of oil field pipe, he got into the swing set business in late 1950 or early 1951, but to a rather limited extent. In late 1953, he licensed his interests in this field to one Bollie Bose. Since about 1957 or 1958, neither they, nor anyone else, so far as the record shows, have manufactured swing sets utilizing the Scaramucci coupling defined in Patent 2,763,455.

Universal manufactures playgyms known under the trade name of “Gym-Dandy” in large quantities, under a license issued to it by Isadore Horowitz, who applied for Patent No. 2,904,359 November 7, 1957, which was issued September 15, 1959. Horowitz is President and principal stockholder of Universal. He has been in the playground equipment business since about 1940. The Patent Office expressly considered and cited Scaramucci Patent 2,763,455 when it granted Horowitz Patent 2,904,359.

The patent-in-suit and the accused device both relate to coupling devices designed to be used to join the horizontal top bar of a children’s swing set with divergent legs located at each end of the top bar.

Plaintiff seeks the usual infringement relief of an injunction, accounting, damages, attorney’s fees, costs and expenses. Defendant refutes the validity of plaintiff’s patent, as having been plainly anticipated by the prior art, by obviousness or by lack of invention; and, alternatively, denies infringement.

It is common knowledge, of course, that playgym swings, frame constructions made up of a cross bar or top supported at its opposite ends by divergent leg structures through leg fittings or couplings, and having suspended therefrom one or more swing structures, have been in use for many decades. As such, these are in the public domain. It is the coupling devices alone which are the subject of this controversy. To illustrate accurately the differences between them, copies of these two patents are attached to this opinion,

* including the diagrams submitted with the applications and claims as finally approved by the Patent Office.

As stated, only Claims 1, 4 and 5 of plaintiff’s patent are involved, these reading as follows:

“1. A coupling for the ends of the horizontal top tube and divergent legs of swing frames, etc. comprising a single, one-piece, elongated sheet metal body notched at the center of one long side and configured to provide edges to closely receive and conform to a portion of the walls of the top tube along an irregular line substantially angled to the axis of the tube and adapted to be welded thereto along the engaging edges, said body sheet beyond said notch defining a pair of merging but divergent leg receiving sockets directed to hold the ends of the legs against said top tube opposite the edge connections thereto, and intervening webs edge connected to the sockets and overlying and spaced apart, and means to draw said webs toward each other to tension both sockets about the leg ends.”

[682]*682“4. For use in a frame for swings, etc. having a top tube, a pair of supporting divergent tubular legs and a connecting brace bar between the latter, the combination of a one-piece sheet metal coupling permanently fixed to the top tube adjacent to and covering one end thereof, said coupling having a shape to form a pair of divergent leg tube receiving sockets each substantially open where it faces the other, one edge of each opening being connected by a continuous web and each other edge having a web extending therefrom and overlapping that from the other, said continuous and overlapping webs being spaced apart and means to draw them toward each other to clamp the leg tubes and to simultaneously tend to reduce the angle of socket divergence whereby the brace bar is placed under compression.”

“5. The device of claim 4 in which said coupling sheet is notched to receive and closely support the end portion of the top tube and means welding the edges of the notch to the walls of the top tube to integrate these parts.”

The issuance of the patent-in-suit carries with it a presumption of validity. 35 U.S.C. § 282; Italit, Inc. v. Johns-Manville Corporation, 331 F.2d 663 (5 Cir., April 16, 1964). However, where the Patent Office has failed to consider the prior pertinent art, this statutory presumption of validity is greatly weakened.

As was stated in Rosaire v. Baroid Sales Division, National Lead Co., 218 F.2d 72 (5 Cir., 1955), where pertinent prior art was not considered, “ * * * the patents were therefore greatly weakened and they lack the presumption of validity that would otherwise exist.” To the same effect is The Murray Company of Texas, Inc. v. Continental Gin Co., 264 F.2d 65 (5 Cir., 1959): “The presumption of validity attends the grant of a patent and the burden of persuasion of invalidity is on the putative infringer. [Cases cited.] ' The presumption is strengthened when it appears that the Patent Office has considered and distinguished the prior art relied on as anticipation. [Cases cited.] But where, as here, the Patent Office has failed to consider pertinent art, the statutory presumption of validity is greatly weakened.”

Defendant has cited a number of prior patents, both domestic and foreign, containing significant features embodied in the claims at issue here. Two of these in particular, Bender No. 2,560,713 (1946-51) and Vincent No. 937,003 (French-1946), contain, respectively, the two most significant features of plaintiff’s patent, namely, a welded attachment to a swing set top tube and divergent leg sockets for clampingly receiving the upper ends of divergent legs, with a connecting brace between the latter, and a single bolt actuated wrap-around type tube socket functioning in its new environment to grip the divergently related tube members, with a unitary coupling permanently fixed to the top tube adjacent to an end thereof.

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