The Ductless Hood Co., Inc., New Milford Construction and Repair Company and George A. Scharmer v. A & B Home Appliances, Inc.

317 F.2d 606, 137 U.S.P.Q. (BNA) 499, 1963 U.S. App. LEXIS 5308

• Court: Court of Appeals for the Second Circuit
• Decided: May 14, 1963
• Docket: 27940_1
• Status: Published

Opinion

317 F.2d 606

137 U.S.P.Q. 499

The DUCTLESS HOOD CO., Inc., New Milford Construction and
Repair Company and George A. Scharmer, Plaintiffs-Appellants,
v.
A & B HOME APPLIANCES, INC., Defendant-Appellee.

No. 343, Docket 27940.

United States Court of Appeals Second Circuit.

Argued May 2, 1963.
Decided May 14, 1963.

Roger T. McLean, of Adams, Forward & McLean, New York City (N. Dale Sayre, of Adams, Forward & McLean, and Irving Moldauer, New York City, on the brief), for plaintiffs-appellants.

Joseph M. Fitzpatrick, of Ward, Neal, Haselton, Orme & McElhannon, New York City (John Thomas Cella and Lewis H. Eslinger, of Ward, Neal, Haselton, Orme & McElhannon, New York City, on the brief), for defendant-appellee.

Before CLARK, SMITH and HAYS, Circuit Judges.

PER CURIAM.

In an action for infringement of U.S. Patent 2,886,124, for a 'kitchen conditioner,' issued to George A. Scharmer on May 12, 1959, the district court sustained the defense of lack of invention over the prior art, specifically the Sonntag patent (U.S. Patent 2,369,375), and dismissed the complaint. The advancement claimed by the plaintiffs for their 'invention' is the relocation of air outlets from the top to the front of a kitchen exhaust hood. If the top of the hood is to be covered by cabinets-- the situation for which plaintiffs' product was designed-- the obvious answer is moving the louvres. This hardly shows invention. Thus we accept the findings of District Judge Dooling and affirm on his persuasive opinion, D.C.E.D.N.Y., 210 F.Supp. 57.

Affirmed.