Scaramucci v. Universal Manufacturing Co.
Opinion
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,
Footnotes
228 F. Supp. 680 (Scaramucci v. Universal Manufacturing Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.