Superior Skylight Co. v. Zerbe Const. Co.

Second Circuit

Superior Skylight Co. v. Zerbe Const. Co.

10 F.2d 710, 1926 U.S. App. LEXIS 2254

CourtCourt of Appeals for the Second Circuit

DecidedFebruary 1, 1926

DocketNo. 173

StatusPublished

This text of 10 F.2d 710 (Superior Skylight Co. v. Zerbe Const. Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Superior Skylight Co. v. Zerbe Const. Co., 10 F.2d 710, 1926 U.S. App. LEXIS 2254 (2d Cir. 1926).

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Opinion

PER CURIAM.

We agree that the decree was right, but not for the reasons given. To us it seems that the patent was infringed, but invalid, if interpreted to cover the defendant’s skylight. We rely for anticipation upon Freeman’s article in volume 27 of the Transactions of the American Society of Mechanical Engineers. The only differences between the defendant’s skylight and Freeman’s windows are that his were set in the walls of the rigging loft and were held by fusible eatehes, instead of by chains with fusible links. Neither difference appears to us patentable.

Freeman’s windows were designed for exactly the same purpose as Goldman’s and, being set in the rigging loft, would be generally, if not uniformly, higher than the roof of the auditorium. Of course, they must be unobstructed to open at all. We recognize that Goldman’s windows were in a skylight, and that a skylight occupies only a part of the roof,, but that appears to us of no importance in function or method. The only invention lay in the means of securing their automatic opening when the stage got afire.1 That oeeurs in exactly the same way, whether they are set in the walls of the loft, or in the sides of a skylight on top of the loft. Indeed, such skylights were, disclosed by Freeman himself in his Figures 5, 5a, 5b, 5c, and 5d. These are distinguished from the patent in suit only because the windows are vertical, instead of inclined, and open by counterweights. Goldman did no more than to put the windows of Figure 7 into the skylight' of Figure 5. It seems to us that Freeman had exhausted all the invention which was in the idea.

This covers claims 1 and 3, which do not include the feature of a “flexible connection” with a fusible link. But that was in Freeman’s figures, 5 et seq., and also in Voightmaun, 1898, Burton, 1900, and Chadwick, 1910, all for fire windows. This covers claims 2 and 4.

It is quite true that Freeman’s ideas do not seem to have borne fruit, but they were disclosed none the less, and such modification, or rather combination, of them as Goldman made will not justify a monopoly.

Decree affirmed.

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PER CURIAM.

We agree that the decree was right, but not for the reasons given. To us it seems that the patent was infringed, but invalid, if interpreted to cover the defendant’s skylight. We rely for anticipation upon Freeman’s article in volume 27 of the Transactions of the American Society of Mechanical Engineers. The only differences between the defendant’s skylight and Freeman’s windows are that his were set in the walls of the rigging loft and were held by fusible eatehes, instead of by chains with fusible links. Neither difference appears to us patentable.

Freeman’s windows were designed for exactly the same purpose as Goldman’s and, being set in the rigging loft, would be generally, if not uniformly, higher than the roof of the auditorium. Of course, they must be unobstructed to open at all. We recognize that Goldman’s windows were in a skylight, and that a skylight occupies only a part of the roof,, but that appears to us of no importance in function or method. The only invention lay in the means of securing their automatic opening when the stage got afire.1 That oeeurs in exactly the same way, whether they are set in the walls of the loft, or in the sides of a skylight on top of the loft. Indeed, such skylights were, disclosed by Freeman himself in his Figures 5, 5a, 5b, 5c, and 5d. These are distinguished from the patent in suit only because the windows are vertical, instead of inclined, and open by counterweights. Goldman did no more than to put the windows of Figure 7 into the skylight' of Figure 5. It seems to us that Freeman had exhausted all the invention which was in the idea.

This covers claims 1 and 3, which do not include the feature of a “flexible connection” with a fusible link. But that was in Freeman’s figures, 5 et seq., and also in Voightmaun, 1898, Burton, 1900, and Chadwick, 1910, all for fire windows. This covers claims 2 and 4.

It is quite true that Freeman’s ideas do not seem to have borne fruit, but they were disclosed none the less, and such modification, or rather combination, of them as Goldman made will not justify a monopoly.

Decree affirmed.

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10 F.2d 710, 1926 U.S. App. LEXIS 2254, Counsel Stack Legal Research, https://law.counselstack.com/opinion/superior-skylight-co-v-zerbe-const-co-ca2-1926.