Home/Ninth Circuit/Simplex Window Co. v. Hauser Reversible Window Co.

Simplex Window Co. v. Hauser Reversible Window Co.

248 F. 919, 161 C.C.A. 37, 1918 U.S. App. LEXIS 1489
CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 11, 1918
DocketNo. 3004
StatusPublished
Cited by12 cases

This text of 248 F. 919 (Simplex Window Co. v. Hauser Reversible Window Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Simplex Window Co. v. Hauser Reversible Window Co., 248 F. 919, 161 C.C.A. 37, 1918 U.S. App. LEXIS 1489 (9th Cir. 1918).

Opinion

ROSS, Circuit Judge.

This suit was commenced in the court below by the present appellant against the appellees, for the alleged infringement of two certain letters patent, numbered, respectively, 1,072,669 and 1,159,604. After trial the court held that there was no infringement, and accordingly gave judgment for the defendants to the suit, resulting in the present appeal by the complainant.

[1] In this court the appellant has abandoned all claims under its patent numbered 1,159,604, and contends for a reversal of the judgment only by reason of its first patent. For the appellees it is contended, and has been elaborately argued, that that patent is invalid, the answer to which contention is that its validity was not denied in the court below, the defense (here being made solely on the ground of noninfringement — the defendants denying that they have ever jointly or severally made or used cr sold any device containing or embodying the inventions patented in and by the two letters patent under which the complainant claimed, and, on the contrary, alleging in effect that the only device they made, used, or sold was one of which the defendant Frederick Hauser was the original and first inventor, and which was duly patented to him October 20, 1914, by letters patent numbered 1,114,260. The defendants by their answer did not set up any prior use or prior invention or prior patent to those under which the complainant claimed, and such defenses were receivable in evidence only to show the state oí the art, and to aid in the construction of the patent. Morton v. Llewellyn, 164 Fed. 693, 694, 90 C. C. A. 514, and cases there cited.

[2] Nor can the contention on the part of the appellees be sustained that the patent under which they claim is presumptive evidence that there was no infringement by them of the appellant’s prior patent. The cases hold that it is presumptive evidence of a difference of that [921]*921patented device from the prior patent of the appellant, but not presumptive evidence of any infringement. Miller v. Eagle Mfg. Co., 151 U. S. 186, 208, 14 Sup. Ct. 310, 38 L. Ed. 121; Herman v. Youngstown Car Mfg. Co., 191 Fed. 579, 585, 586, 112 C. C. A. 185; Murray v. Detroit Wire Spring Co., 206 Fed. 465, 124 C. C. A. 371; Curry v. Union Electric Welding Co., 230 Fed. 422, 429, 144 C. C. A. 564; General Electric Co. v. Electric Controller Co., 243 Fed. 188, — C. C. A. -; Acme Harvester Co. v. Frobes (C. C.) 69 Fed. 149.

The latter question — that is to say, that of infringement — is for the decision of the court, to determine which it is essential to ascertain, in the first place, what the invention was that is covered by the prior patent; next, the construction to which that patent is entitled, taking into view the prior state of the art; and, finally, whether or not there has been an infringement of the prior patent by the device of the ap-pellees which they confessedly have made, used, and sold.

[3] Hooking at the appellant’s patent, the invention covered by which was made by one Soule, we find the inventor states in the specification of his application for letters patent, among other things, as follows:

“My invention relates to windows, and especially to windows of the swingin.ii reversible sash typo; and it has for its object to provide a new and. improved window of the character specified, which, while remaining in a state of stable equilibrium in whatever position it may be placed, may readily be moved from any position to any other.
“With this object in view, my invention consists in a sash slidably pivoted in a window frame, adjuster arms having one end fixedly pivoted in and slightly above the middle points of the stiles and the other end slidably pivoted in the frame, and carrier a rms, having one end fixedly pivoted in the frame and the other end fixedly pivoted to the adjuster arms.
“It also consists in the combination, with a frame, sash, adjustor arm, and carrier arm, of a plate having means for automatically adjusting its position on the frame.
“It also consists in the novel parts, combinations, and arrangements set forth in the following description, particularly pointed out In the claims, and illustrated in the accompanying two sheets of drawings”

—some of which drawings, as well as some of the drawings illustrating the Hauser patent, will be subsequently inserted.

The three claims of the patent alleged to have been infringed are the first, fourth, and .seventh, which claims are as follows:

“X. A window, comprising a frame, a sash slidably pivoted in said frame, adjuster arms, one end of which being fixedly pivoted at points slightly above the middle of the sash stiles and the other end slidably pivoted in the frame, ami carrier arms, ouo end of which is fixedly pivoted in the frame and the other end fixedly pivoted to the corresponding adjuster arm.”
“4. A window, comprising a frame, a sash in said frame, an adjuster arm pivotediy secured at one end to said frame and at the other end to said sash, and a carrier arm pivotally secured at One end to said frame and at the other end to said adjuster arm.”
“7. A reversible window, comprising a sash, an adjuster arm of suitable length, a carrier arm supporting said adjuster arm and window sash, a slid-able pivoted connection between said frame and one end of said adjuster arm, and a pivoted connection between the other end of said adjuster arm and points near the middle of the sash stiles about which said sash is rotatable.”

One thing is manifest from that portion of the specification above quoted, which is that the Soule invention was but an improved win[922]*922dow of the character therein specified, namely, “windows of the swinging, reversible type”; for such is the inventor’s express declaration. There is therefore no ground for the appellant’s contention that reversible windows were new before the Soule invention.

Two specimens of the prior art introduced in evidence by the ap-pellees are a patent issued to Oscar Frotscher, November 28, 1893, in which that inventor said in his specification, among other things, that his invention—

“relates to certain new and useful improvements in windows of that class in which provision is made for allowing the sliding sash to be swung out or reversed if desired, for cleaning or other purposes, and it has for its object, among others, to provide a window of this class which can be cheaply made, easily operated, and not liable to get out of order. It has for a further object to provide simple, yet efficient, means for holding the sash inclined for ventilation, and for a still further object the provision of means for firmly holding the sash in position for cleaning.”

The second was the ordinary awning device, which the appellees .contend disclosed every feature, mechanical and structural, of that of Soule, except in minor details of construction.

Regarding the Frotscher device, the model of which was introduced in evidence, the defendant Frederick Hauser himself testified:

“I never have made any windows (ike that. I didn’t want to make them like that. They are useless.

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Cite This Page — Counsel Stack

Bluebook (online)
248 F. 919, 161 C.C.A. 37, 1918 U.S. App. LEXIS 1489, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simplex-window-co-v-hauser-reversible-window-co-ca9-1918.